Chaudhry v Secretary of State for the Home Department

This appeal concerns the correct approach to an appeal to the First-tier Tribunal under section 40A of the British Nationality Act 1981 from a Secretary of State decision under section 40(3) to deprive a person of British citizenship. The Court of Appeal held that the FTT has a factual, fact-finding function to determine, where disputed, whether there was fraud, false representation or concealment of a material fact (the precedent fact). The question whether the registration or naturalisation was obtained by means of that misconduct (the causation issue) and the Secretary of State’s exercise of discretion to deprive are matters for the Secretary of State and are reviewable by the FTT only on public law grounds (applying the principles identified in R (Begum) v SIAC at para. 71). The FTT may also determine whether the Secretary of State breached other legal obligations, including section 6 of the Human Rights Act 1998.

The Court found that the Upper Tribunal had applied the wrong test in setting aside the FTT and remade decision-making; but the FTT itself had made inadequately reasoned factual findings. The UT’s decision was set aside and the appeal remitted to the FTT for rehearing before a different judge.

Background and parties: The appellant, a Pakistani national naturalised in 2005, was deprived of British citizenship by the Secretary of State by order dated 23 December 2021 under section 40(3) of the British Nationality Act 1981 on the basis that his registration or naturalisation had been obtained by fraud, false representation or concealment of a material fact. The appellant appealed to the First-tier Tribunal which allowed the appeal. The Upper Tribunal set aside the FTT decision and remade the Secretary of State's decision. The appellant appealed to the Court of Appeal.

Facts: The Secretary of State relied on evidence that a British passport had been obtained in the name of a deceased child in about 1998 and that the passport used a photograph and handwriting alleged to be that of the appellant; an application for a driving licence in 2010 used the passport name together with the appellant's address. The appellant denied involvement and gave inconsistent accounts as to a cousin alleged to have obtained the false passport.

Relief sought: The appellant sought restoration of the FTT decision allowing his appeal and quashing/remittal of the deprivation order; alternatively a remit to the FTT to hear the appeal with the correct legal approach.

Issues framed by the court: (i) What is the proper approach for the FTT on an appeal under section 40A from a section 40(3) deprivation decision? (ii) Whether the FTT’s decision allowing the appellant’s appeal should be restored. (iii) If not, whether the matter should be remitted to the FTT for rehearing.

Reasoning and disposition: The court examined statutory language of section 40(3) and section 40A, the Supreme Court’s guidance in Begum (No.1) and subsequent UT authorities (notably Ciceri and Chimi). The court concluded that: (a) the FTT must, where disputed, determine as a matter of fact whether the alleged fraud, false representation or concealment occurred (the precedent fact); (b) the causation issue (whether registration or naturalisation was obtained by those means) is a Secretary of State conclusion subject to public law review by the FTT (applying Begum para. 71 principles); (c) the Secretary of State’s decision to exercise the discretion to deprive is likewise for the Secretary of State and is reviewable on public law grounds; and (d) the FTT must consider whether other legal obligations (including HRA section 6) were breached. The Court held that the UT had applied the wrong test by treating the precedent fact as a matter for public law review rather than for the FTT’s fact-finding, but the FTT’s own factual reasoning was insufficient because it failed to address uncontroverted material facts. The UT’s decision was set aside and the appeal remitted to the FTT for rehearing before a different judge.

The Court allowed the appellant’s appeal against the Upper Tribunal insofar as the UT had applied the wrong test to appeals under section 40A from decisions made under section 40(3) BNA 1981. The Court held that the FTT must (i) find as fact, where disputed, whether there was fraud, false representation or concealment of a material fact; (ii) review the Secretary of State’s causation conclusion and exercise of discretion only on public law grounds (applying Begum (No.1) para. 71); and (iii) determine compliance with other legal obligations including section 6 of the Human Rights Act. The UT’s decision was set aside, and the matter remitted to the FTT for rehearing because the FTT’s factual findings were inadequately reasoned.

FTT allowed appellant's appeal (hearing 9 November 2022, decision 4 January 2023). Upper Tribunal set aside the FTT decision and remade the Secretary of State's decision (UT decision 17 September 2023; Upper Tribunal Judge Sheridan). Court of Appeal [2025] EWCA Civ 16 (this judgment) sets aside the UT decision and remits the matter to the FTT for rehearing.