Hafiz Aman Ullah v Secretary of State for the Home Department

The two-stage test in Ivey governs allegations of dishonesty in citizenship-deprivation proceedings. The tribunal must ascertain the person’s actual knowledge or belief as to the facts, then assess the conduct against the standards of ordinary decent people.

Evidence on a central issue should ordinarily be challenged in cross-examination before the opposing party invites its rejection. This rule applies to factual evidence in public law proceedings and carries particular force where dishonesty and loss of citizenship are alleged, although it remains subject to context-sensitive exceptions.

The Upper Tribunal may intervene only for an error of law. It must respect the First-tier Tribunal’s role as fact-finder and cannot substitute its preferred assessment merely because it considers the evidence capable of supporting a different conclusion.

The Secretary of State deprived the appellant of British citizenship under section 40(3) of the British Nationality Act 1981. The decision rested on his failure to disclose conduct preceding naturalisation which later resulted in a conviction for possessing criminal property.

The First-tier Tribunal heard the appellant’s oral explanation of his state of mind. The Secretary of State did not challenge that evidence in cross-examination. The tribunal found the explanation plausible, concluded that dishonesty had not been proved and allowed his appeal.

The Upper Tribunal set that decision aside for inadequate reasoning. Without hearing further oral evidence, it remade the decision and dismissed the underlying appeal. The appellant appealed to the Court of Appeal, principally contending that the First-tier Tribunal had made no error of law. The central questions concerned the correct test for dishonesty, the significance of unchallenged evidence, and the limits of appellate intervention in factual findings.

1. Appeal allowed. The First-tier Tribunal made no error of law. The Upper Tribunal therefore had no jurisdictional basis for setting aside its decision. It was unnecessary to determine the remaining grounds of appeal.

2. The test stated in Ivey applies to dishonesty in citizenship-deprivation proceedings under section 40(3) of the British Nationality Act 1981. The fact-finder must first ascertain the individual’s actual knowledge or belief as to the facts. It must then decide whether the conduct was dishonest according to the standards of ordinary decent people. The individual need not appreciate that those standards would characterise the conduct as dishonest. The contrary suggestion in Pajtim Berdica was incorrect.

3. A conviction for possessing criminal property did not establish dishonesty in completing the naturalisation form. The offence could be committed where the defendant merely suspected that property was criminal. In the absence of a Newton hearing, the appellant had to be treated as sentenced on that lesser basis. His conviction neither admitted dishonesty nor relieved the tribunal of applying the two-stage test.

4. The First-tier Tribunal was entitled to find the appellant’s explanation plausible and to consider the Secretary of State’s failure to challenge it. The ordinary rule identified in TUI UK Ltd v Griffiths applies to witnesses of fact and in public law proceedings. A party wishing to invite rejection of material evidence should ordinarily put its challenge in cross-examination, particularly where dishonesty is alleged. The rule is flexible and admits context-sensitive exceptions, including manifestly incredible evidence, but that exception did not apply here.

5. The Upper Tribunal’s jurisdiction under sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007 is confined to errors of law. A specialist fact-finding tribunal is entitled to evaluative latitude. An appellate tribunal should not infer legal error merely because it would have assessed the evidence differently, because every reasoning step was not expressed, or because the factual conclusion appeared generous.

6. The First-tier Tribunal’s reference to an evidential gap was justified. The Secretary of State had repeatedly failed to address the pleaded issue of dishonesty and did not cross-examine the appellant on his state of mind. The Upper Tribunal erred by treating the conviction and supporting documents as speaking for themselves and as decisive of dishonesty.

1. Court of Appeal (Civil Division): By [2024] EWCA Civ 201, unanimously allowed the appeal because the First-tier Tribunal had made no error of law and the Upper Tribunal was not entitled to set its decision aside.
2. Upper Tribunal: On 25 February 2022, set aside the First-tier Tribunal’s decision for error of law. On 21 July 2022, it remade the underlying decision without further oral evidence and dismissed the appellant’s appeal. It refused permission to appeal on 26 January 2023.
3. First-tier Tribunal: By a decision promulgated on 4 March 2021, allowed the appeal against deprivation of citizenship after finding that dishonesty had not been proved.