ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Gleeson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEGGATT
LORD JUSTICE HADDON-CAVE
| THE QUEEN ON THE APPLICATION OF KV
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Gwion Lewis (instructed by the Government Legal Department) for the Respondent
Hearing date: 25 October 2018
Crown Copyright ©
Lord Justice Leggatt:
The legal basis for deprivation of British citizenship
"(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—
(b) false representation, or
(c) concealment of a material fact.
(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
The references in these provisions to "citizenship status" include a person's status as a British citizen: see subsection (1)(a). Section 40(5) requires the Secretary of State before making an order under section 40 to give the person concerned notice of (a) the decision, (b) the reasons for the order and (c) the person's right of appeal.
(1) Like an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, an appeal under section 40A of the 1981 Act is not a review of the Secretary of State's decision but a full reconsideration of the decision whether to deprive the appellant of British citizenship.
(2) It is thus for the tribunal to find the relevant facts on the basis of the evidence adduced to the tribunal, whether or not that evidence was before the Secretary of State when deciding to make a deprivation order.
(3) The tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection.
(4) If the condition precedent is established, the tribunal has then to ask whether the Secretary of State's discretion to deprive the appellant of British citizenship should be exercised differently. For this purpose, the tribunal must first determine the reasonably foreseeable consequences of deprivation.
(5) If the rights of the appellant or any other relevant person under article 8 of the European Convention on Human Rights are engaged, the tribunal will have to decide whether depriving the appellant of British citizenship would constitute a disproportionate interference with those rights. But even if article 8 is not engaged, the tribunal must still consider whether the discretion should be exercised differently.
(6) As it is the Secretary of State who has been charged by Parliament with responsibility for making decisions concerning deprivation of citizenship, insofar as the Secretary of State has considered the relevant facts, the Secretary of State's view and any published policy regarding how the discretion should be exercised should normally be accorded considerable weight (in which regard see Ali v Secretary of State for the Home Department  UKSC 60;  1 WLR 4799).
The First-tier Tribunal decision
The Upper Tribunal decision
(1) The Upper Tribunal was wrong to hold that the burden lay on the appellant to prove that he would be stateless if deprived of British citizenship.
(2) Alternatively and in any event, there was evidence before the tribunal which proved not only that the appellant would be stateless but that he cannot re-acquire Sri Lankan citizenship.
(3) Alternatively, the appellant should, if necessary, be permitted to rely on additional evidence which was not before the First-tier Tribunal or the Upper Tribunal to prove those facts.
(4) In these circumstances the Upper Tribunal was wrong to conclude that the failure of the First-tier Tribunal to consider the issue of statelessness was immaterial.
The burden of proving statelessness
"Given that it is the respondent who is seeking to deprive a person of British citizenship, the burden lies on the respondent to show, on the balance of probabilities, that, on the facts of the particular case, that person will not be stateless, if deprived of British citizenship."
The meaning of statelessness
Proof of foreign law
"I cannot fathom why in dealing with the meaning of laws of English-speaking countries that share our legal origins judges should prefer paid affidavits and testimony to published materials."
The relevant Sri Lankan law
"A person shall be or become entitled to the status of a citizen of Sri Lanka in one of the following ways only:
(a) by right of descent as provided by this Act;
(b) by virtue of registration…"
Section 20(5) provides that:
"A person who is a citizen of Sri Lanka by descent shall cease to be a citizen of Sri Lanka if he voluntarily becomes a citizen of any other country."
(There is a corresponding provision in section 21(1) applicable to a citizen by registration.)
"(1) Any person who ceases under section 19 or section 20 to be a citizen of Sri Lanka by descent may at any time thereafter make application to the Minister for a declaration that such person has resumed the status of a citizen of Sri Lanka by descent; and the Minister may make the declaration for which the application is made
(a) if that person renounces citizenship of any other country of which he is a citizen, in accordance with the law in force in that behalf in that other country; and
(b) if that person is, and intends to continue to be, ordinarily resident in Sri Lanka.
(2) Where a declaration is made in relation to any person under subsection (1), that person shall, with effect from such date as may be specified in the declaration, again have the status of a citizen of Sri Lanka by descent.
(4) The Minister may refuse to make a declaration under subsection (1) in relation to any person on grounds of public policy; and such refusal shall be final and shall not be contested in any court, but without prejudice to the power of the Minister subsequently to make such a declaration in relation to that person.
(5) The Minister may in his discretion exempt any person from the requirements of paragraph (a) of subsection (1) of this section, and make a declaration under that subsection notwithstanding that such person does not comply with the said requirements."
The reasoning of the Upper Tribunal
"44. The appellant, upon whom rests the burden of proof of citizenship, must show which category [of person who is 'of' or 'has' a nationality within the meaning of article 1A(2) of the Refugee Convention] applies to him. There is no evidence before me which assists in that exercise. In particular, there is no evidence that the appellant has renounced his Sri Lankan citizenship or that he has lost it by operation of law: the appellant is Sri Lankan by birth. The 1948 Ceylon Citizenship Act, on which the appellant relies, does not as [his counsel] asserts provide for automatic deprivation of citizenship for those who are Sri Lankan citizens by birth: instead, at section 19, it provides that they may, if they choose, make a formal declaration of renunciation of Sri Lankan citizenship, and the statute also provides a process for resumption of citizenship where such a declaration of renunciation has been made.
45. At sections 20 and 21, the statute deals with those whose Sri Lankan citizenship is acquired by registration or by descent. In that case, there is automatic loss of such citizenship on the acquisition of another nationality, again subject to provisions for resumption. The appellant has made no attempt to discover what the position is by applying to the Sri Lankan Embassy in London to clarify his status and if appropriate, resume his Sri Lankan citizenship.
46. I am satisfied that, although the First-tier Tribunal erred in law in failing to make an express finding as to whether this appellant is now stateless, such error is immaterial, since there was no evidence before the First-tier Tribunal and is none before me on which such a finding could rationally be made. The burden of proving statelessness is on the party asserting it, the appellant, and he has not discharged that burden."
The appellant's application to adduce new evidence
Lord Justice Haddon-Cave:
Sir Geoffrey Vos, Chancellor of the High Court: