Theodor Laci v Secretary of State for the Home Department

Appeals against deprivation of British citizenship under section 40(3) of the British Nationality Act 1981 require a staged approach. The First-tier Tribunal must decide disputed fraud, false representation or concealment of a material fact as a precedent fact, on the evidence before it and on the balance of probabilities. It must then review on public law grounds whether citizenship was obtained by that conduct and whether the Secretary of State properly exercised the discretion to deprive. Finally, it must decide for itself whether other legal obligations, including section 6 of the Human Rights Act 1998, have been breached, while giving due weight to the Secretary of State’s findings, evaluations and policies.

The appellant appealed against the First-tier Tribunal’s dismissal of his appeal against a decision to deprive him of British citizenship under section 40(3) of the British Nationality Act 1981. The First-tier Tribunal had reviewed the Secretary of State’s finding of deception only on public law grounds, applying Chimi v Secretary of State for the Home Department [2023] UKUT 115 (IAC). While the case was pending, the Court of Appeal gave judgment in Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, changing the approach required for section 40(3) appeals. The issue was whether the First-tier Tribunal’s error of law was material.

The First-tier Tribunal’s decision involved a material error of law and was set aside. The appeal was retained in the Upper Tribunal for rehearing, with no findings preserved.

1. Precedent fact. Following Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, where disputed, the First-tier Tribunal must decide for itself whether fraud, false representation or concealment of a material fact occurred. This is the statutory precondition to a section 40(3) deprivation order. The decision must be made afresh on the evidence before the Tribunal, and the Secretary of State bears the legal burden of proof on the balance of probabilities.
2. Dishonesty. The three-stage approach in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 applies: prima facie evidence from the Secretary of State; an innocent explanation meeting the minimum level of plausibility; and, if that threshold is met, proof by the Secretary of State that the explanation should be rejected. The burden remains on the Secretary of State throughout, as emphasised in Chowdhury v Secretary of State for the Home Department [2025] EWCA Civ 36.
3. Causation and discretion. If the precedent fact is established, whether citizenship was obtained by that means is reviewed on public law grounds. The Secretary of State’s subsequent discretion to make a deprivation order is also reviewed on public law grounds. The First-tier Tribunal must not decide either issue afresh or substitute its own discretion.
4. Other legal obligations. The First-tier Tribunal must determine for itself whether the decision breached relevant obligations, including section 6 of the Human Rights Act 1998, while giving due weight to the Secretary of State’s findings, evaluations and policies.
5. The First-tier Tribunal had applied the former public law approach to the deception issue. That error was material because the judge had not decided how he would determine the issue himself, and the case had been prepared on the mistaken basis that only public law review was required. The Upper Tribunal therefore retained the appeal for remaking, applying the general approach to retention referred to in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision promulgated on 19 July 2023 was set aside for material error of law. The appeal was retained for rehearing, with no findings preserved.
• First-tier Tribunal: Appeal against the Secretary of State’s deprivation decision dated 17 June 2022 was dismissed.