Shyti v Secretary of State For The Home Department

In an appeal against deprivation of nationality under British Nationality Act 1981, the First-tier Tribunal must consider the decision under challenge as a whole where it gives distinct and independent reasons. It cannot confine itself to an appellant’s answer to one strand merely because the presenting officer has failed to develop the other strands. A clear concession or withdrawal is required before the tribunal may lawfully narrow the issues in that way.

An authority concerning fraud with only an indirect connection to naturalisation will not be decisive where the decision also relies on continuing deception in the naturalisation application and its bearing on good character. The court declined to decide an unnecessary wider question about the appellate standard of review.

The Secretary of State deprived the appellant of British citizenship on the basis that he had obtained it through fraud. He had claimed to be a Kosovan national, rather than an Albanian national, in his asylum, immigration and naturalisation dealings. The decision relied both on the earlier deception and on its continuation in his application for naturalisation, including his failure to disclose it when addressing good character.

The First-tier Tribunal allowed his appeal after treating the case as materially indistinguishable from Sleiman. The Upper Tribunal allowed the Secretary of State’s appeal, holding that the First-tier Tribunal had failed to consider the false statements in the naturalisation application and remitting the case. The central issue was whether that omission was a material error of law despite the inadequate assistance given by the Secretary of State’s presenting officer.

1. Appeal dismissed. The Upper Tribunal was entitled to hold that the First-tier Tribunal had made a material error of law. The First-tier Tribunal considered only one strand of the deprivation decision: the asserted connection between the false nationality and the grant of indefinite leave to remain. It failed to address the separate strands based on the appellant’s continuing deception in his application for naturalisation, his declarations, and his failure to disclose conduct relevant to good character.

2. The decision letter was not ambiguous. The Secretary of State’s review expressly maintained reliance on it in full. Although the presenting officer had given the First-tier Tribunal seriously inadequate assistance, no part of the decision had been withdrawn or conceded. The tribunal was therefore required to consider whether the appellant’s argument answered the decision read as a whole. It could lawfully have narrowed its focus only if there had been a clear concession that the other grounds were not relied upon.

3. Sleiman [2017] UKUT 00367 (IAC) was not decisive. It was distinguishable because the Secretary of State’s case there did not include the material grounds relied upon here, including the effect of continuing deception on the application for citizenship and good character. JK (Democratic Republic of Congo) [2007] EWCA Civ 831 was also distinguishable. It concerned a competent forensic decision not to pursue particular credibility points, whereas this decision contained independent reasons and the presenting officer had not competently developed the case.

4. The court declined to determine whether R (Begum) v Secretary of State for the Home Department [2021] UKSC 7 governs appeals under section 40(3). The Upper Tribunal’s decision stood on the distinct error identified above. Any ruling on the wider point would therefore have been obiter and liable to create uncertainty. The remittal to the First-tier Tribunal remained in place.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal on the material-error issue and declined to decide the wider appellate-standard issue: [2023] EWCA Civ 770.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, found that the First-tier Tribunal had materially erred in law by not considering the decision in full, and remitted the appeal to the First-tier Tribunal.
• First-tier Tribunal (Immigration and Asylum Chamber): allowed the appellant’s appeal against deprivation of citizenship under British Nationality Act 1981.