Reine Chimi v The Secretary of State for the Home Department

Appeals against deprivation decisions under sections 40(2) and 40(3) of the British Nationality Act 1981 require a staged analysis. The Tribunal must review the condition precedent and the Secretary of State’s discretionary decision using conventional public law principles. It must not substitute its own merits assessment. Evidence not before the Secretary of State is admissible at those stages only where it is strictly relevant to a pleaded material error of law. If the deprivation decision is lawful, the Tribunal must independently assess its compatibility with Article 8 and may consider the reasonably foreseeable consequences on the evidence before it. It must not reopen the lawfulness findings. Deprivation based on fraud carries significant weight in the Article 8 balance.

The appellant was naturalised as a British citizen in 2016 after relying on French nationality and a French passport. In 2020 the Secretary of State made a deprivation order under section 40(3) of the British Nationality Act 1981, concluding that the appellant’s status had ultimately been obtained by fraud involving a false French birth certificate.

The First-tier Tribunal’s decision was set aside for error of law and the appeal was remade in the Upper Tribunal. The central issues were the scope of a section 40A appeal, the evidence admissible when reviewing the statutory decision, and whether deprivation would breach Article 8 after consideration of its reasonably foreseeable consequences.

1. Condition precedent. The Tribunal must determine whether the Secretary of State materially erred in law in deciding that the condition precedent in section 40(2) or section 40(3) was satisfied. The review is conducted using conventional public law criteria, including rationality, relevant and irrelevant considerations, fairness, established error of fact and the duty to make sufficient inquiries. A material error ordinarily requires the decision to be set aside unless the outcome would inevitably have been the same.
2. The Tribunal must not undertake a full merits reconsideration or stand in the Secretary of State’s shoes. The reasoning in Begum v Secretary of State for the Home Department [2021] UKSC 7 applies to section 40(3) as well as section 40(2). The full-merits approach in Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 439 (IAC) and related authorities had been overtaken.
3. Discretion. If the condition precedent is lawful, the Tribunal must review the Secretary of State’s exercise of discretion under the same public law approach. It must complete that analysis before considering Article 8.
4. Evidence. Evidence not before the Secretary of State may be admitted on the statutory issues only where it is directly relevant and necessary to establish a pleaded error of law, and relates to the circumstances existing when the decision was made. The Tribunal must avoid a rolling review or substitution of later reasons.
5. Human rights. Once the deprivation decision is otherwise lawful, the Tribunal must independently decide whether it is incompatible with section 6 of the Human Rights Act 1998. It may consider later evidence and reasonably foreseeable consequences, but may not revisit the lawfulness of the condition precedent or discretion. Removal prospects should not ordinarily be assessed speculatively.
6. Article 8 was engaged. The loss of studies, financial hardship, family stress, children’s best interests and possible administrative difficulties concerning Cameroonian citizenship weighed in the appellant’s favour. Against those matters stood the substantial public interest in preserving the integrity of British nationality law where citizenship was obtained by fraud. The deprivation decision was not disproportionate.
7. The Secretary of State’s decision contained no material public law error, and no separate error was established in the exercise of discretion. The appeal was dismissed.

• First-tier Tribunal: Decision promulgated on 12 January 2021. It was set aside following an error of law.
• Upper Tribunal: Upper Tribunal Judge Owens found an error of law on 21 September 2021, preserved no findings, and adjourned the appeal for remaking. The Upper Tribunal remade the decision and dismissed the appeal.