Syed Tahseen Ahmed v Secretary of State for the Home Department

For deprivation of citizenship obtained by naturalisation, concealment under section 40(3) of the British Nationality Act 1981 must be dishonest and concern a material fact. Materiality may arise where the concealed fact would have affected the immigration status on which naturalisation depended or the good-character assessment. An ongoing romantic relationship with a spouse and children can undermine whether a relationship with another partner is durable. A tribunal may consider country guidance and societal context when assessing plausibility, provided its fact-finding remains fair and supported by the evidence. An appellate court need not decide an alternative jurisdictional issue that cannot affect the outcome.

Mr Ahmed obtained British citizenship by naturalisation in August 2018. The Secretary of State made a deprivation order on 29 November 2019 under section 40(3) of the British Nationality Act 1981, alleging that he had concealed an ongoing relationship with his Pakistani wife and used a divorce deed in earlier immigration applications.

The Upper Tribunal (Immigration and Asylum Chamber), having set aside the First-tier Tribunal’s decision, remade the decision on 24 January 2022 and upheld deprivation. On appeal, Mr Ahmed challenged the country-guidance reasoning, the finding that disclosure would have affected his EEA applications, and the finding of dishonest concealment. The Secretary of State also raised the scope of the statutory appeal in light of R (Begum) v Special Immigration Appeal Commission [2021] UKSC 7, but that issue was not necessary to determine.

Lord Justice Dingemans delivered the judgment, with Lord Justice Moylan and Lady Justice Elisabeth Laing agreeing. The appeal was dismissed.

1. The judge was entitled to consider country guidance and evidence about societal norms when assessing the plausibility of Mr Ahmed’s account. The use of SM (lone women – ostracism) Pakistan [2016] UKUT 67 (IAC) and KA and others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC) was permissible. The principal adverse findings rested on inconsistencies and the evidence as a whole. Any error concerning the country guidance would therefore have been immaterial. (paras [42]–[47])
2. The Secretary of State was entitled to regard the continuing romantic relationship between Mr Ahmed and his wife, with whom he had children, as highly relevant to whether his relationship with Ms Lebkowska was durable. The possibility of simultaneous relationships did not remove that materiality. The judge was entitled to find that the EEA applications would have been refused if the true relationship had been disclosed. (paras [48]–[51])
3. It was common ground, applying Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773 and Balajigari and others v Secretary of State for the Home Department [2019] EWCA Civ 673, that section 40(3) required dishonest concealment of a material fact. Although the judge did not expressly label the concealment dishonest, findings that the account was wholly incredible, that there had been a plan to conceal the true relationship, and that the divorce deed had been created in furtherance of a lie amounted to a finding of dishonesty under the objective test in Ivey v Genting Casinos [2017] UKSC 67. The concealed relationship was material for section 40(3) purposes. (paras [52]–[56])
4. The Court declined to determine whether R (Begum) required a public-law error in an appeal under section 40A. The appeal could be dismissed on the existing grounds, so the jurisdictional issue was left for a case in which it was relevant to the outcome. The Respondent’s Notice and proposed amendment were consequently not determined. (paras [57]–[58])
5. Permission to amend the Appellant’s Notice was refused. The proposed amendment sought to adopt a position contrary to that successfully advanced below and was conditional on an issue the Court had not accepted. The principle against approbating and reprobating applied. (paras [59]–[64])

• Court of Appeal (Civil Division): Dismissed the appeal, refused permission to amend the Appellant’s Notice, and left the Respondent’s Notice and its proposed amendment undetermined.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Blundell set aside the First-tier Tribunal’s decision on 20 April 2021 and remade the decision on 24 January 2022, finding that deprivation under section 40(3) of the British Nationality Act 1981 was lawful.
• First-tier Tribunal (Immigration and Asylum Chamber): Dismissed Mr Ahmed’s appeal from the Secretary of State’s deprivation decision by a decision dated 9 March 2020.