Amjad Ali Chaudhry v Secretary of State for the Home Department

On an appeal against deprivation of citizenship under section 40(3) of the British Nationality Act 1981, the First-tier Tribunal must determine for itself any disputed fact of fraud, false representation or concealment of a material fact. The Secretary of State bears the burden on the balance of probabilities.

Whether naturalisation was obtained by that impermissible means, and whether to exercise the deprivation discretion, remain decisions subject to public law review. The Tribunal must also decide for itself whether the decision breaches other legal obligations, including section 6 of the Human Rights Act 1998, while giving due weight to the Secretary of State’s findings, evaluations and policies.

The Secretary of State decided to deprive Mr Chaudhry, a Pakistani national, of British citizenship under section 40(3) of the British Nationality Act 1981. She alleged that, before his naturalisation, he had fraudulently obtained a genuine British passport in the identity of a deceased child and had failed to disclose that conduct.

The First-tier Tribunal allowed his appeal. It treated the case as a public law review but found that the Secretary of State had not proved the alleged fraud. The Upper Tribunal set that decision aside and restored the deprivation decision, applying a public law review approach to the factual condition precedent.

The appeal concerned the proper scope of a First-tier Tribunal appeal under section 40A where the deprivation decision is made under section 40(3), and whether the First-tier Tribunal’s decision could nevertheless stand.

1. Appeal allowed. The Upper Tribunal’s decision was set aside and the appeal against the Secretary of State’s deprivation decision was remitted to the First-tier Tribunal for a fresh hearing before a different judge.

2. Section 40(3) of the British Nationality Act 1981 creates a statutory precondition: there must in fact have been dishonest fraud, false representation or concealment of a material fact. Where that is disputed, the First-tier Tribunal must find the fact for itself. It is institutionally equipped to do so, and it would be highly unusual for a tribunal to be bound by a reasonable but factually incorrect administrative assessment. The Secretary of State bears the burden of proving the precondition on the balance of probabilities.

3. The causation question—whether registration or naturalisation was obtained by the prohibited means—is for the Secretary of State in the first instance. On appeal, it is reviewed on public law grounds in accordance with the principles identified in Begum (No. 1), [2021] AC 765. The same is true of the Secretary of State’s discretion whether to make a deprivation order.

4. The First-tier Tribunal must itself determine whether the decision breaches other legal obligations, including section 6 of the Human Rights Act 1998. It may consider relevant evidence, but must give due weight to the Secretary of State’s findings, evaluations and policies.

5. The approaches endorsed in Ciceri and Chimi, which required public law review of the factual condition precedent under section 40(3), should no longer be followed. The Upper Tribunal therefore erred in setting aside the First-tier Tribunal for making its own factual finding. However, the First-tier Tribunal’s reasoning was itself inadequate because it did not address material, uncontroverted facts concerning the use of Mr Chaudhry’s address for a driving-licence application. A fresh factual determination was required.

• Court of Appeal (Civil Division): Allowed the appeal, set aside the Upper Tribunal’s decision, and remitted the deprivation appeal to the First-tier Tribunal for a fresh hearing.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision and, by a decision dated 2 November 2023, restored the Secretary of State’s deprivation decision after applying a public law review approach.

• First-tier Tribunal (Immigration and Asylum Chamber): Allowed the appeal against the Secretary of State’s decision of 23 December 2021, finding that the alleged fraud had not been proved.