United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-001183

 

First-tier Tribunal No: DC/50081/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9 ^th November 2023

Before

 

UPPER TRIBUNAL JUDGE O'CALLAGHAN

 

Between

 

MERIDAN CENA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms S Ferguson, Counsel, instructed by Shan & Co Solicitors

For the Respondent: Ms S Cunha, Senior Presenting Officer

 

Heard at Field House on 16 March 2023

 

DECISION AND REASONS

 

 

 

A.            Introduction

 

1.              By his appeal the appellant challenges a decision of the respondent to deprive him of his British nationality under section 40(3) of the British Nationality Act 1981.

 

2.              He asserts that he is a national of Kosovo named ' Meridan Cena' who was born on born on 27 May 1981 and is presently aged 42.

 

3.              The Secretary of State asserts that the appellant is an Albanian national named ' Meridan Cenalija', born on 27 May 1979 and aged 44.

 

4.              The focus of the parties before this Tribunal was upon the condition precedent to deprivation.

 

B.             Appeal history

 

5.              By a decision dated 1 February 2022, the First-tier Tribunal (Judge Buckwell) allowed the appellant's appeal against the respondent's decision to deprive him of British citizenship. The respondent was granted permission to appeal and by a decision sent to the parties on 15 November 2022 the Upper Tribunal set aside the decision of the First-tier Tribunal with no preserved findings of fact.

 

6.              The First-tier Tribunal materially erred by placing weight upon the appellant having a 'current' and 'valid' Kosovan passport which was considered to verify the appellant possessing Kosovan citizenship, without adequately engaging with the respondent's case that the Kosovan authorities have cancelled the appellant's registration of birth. Additionally, the First-tier Tribunal did not adequately engage with the guidance provided in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC), [2021] Imm AR 1909.

 

7.              The resumed hearing took place at Field House on 16 March 2023. There has been a delay in promulgating this decision consequent to the Upper Tribunal awaiting potentially relevant judgments from the Court of Appeal: Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770 (4 July 2023) and Ahmed v Secretary of State for the Home Department [2023] EWCA Civ 1087 (28 September 2023). Their ratio is not directly relevant to the considerations arising in this appeal.

 

C.            Background

 

8.              The appellant entered the United Kingdom on 2 November 1998 and claimed asylum. He stated that he was an unaccompanied minor. When completing a Minors Self-Completion Questionnaire submitted to the respondent on 15 December 1998, he gave his identity as ' Meridan Cena'. In a form completed by a legal representative, the appellant detailed that he was born in 'Grecin', a village in Kosovo, then an autonomous province of the Federal Republic of Yugoslavia. He stated that he was born on 27 May 1981, and so a minor aged 17.

 

9.              He provided details to the respondent as to his mother, father, brother and sister, namely ' Hyre Cena', ' Uke Cena', ' Urim Cena' and ' Natasha Cena'. He stated that they all resided in Kosovo. His siblings were 29 and 34 years old respectively. He later informed the respondent in 2019 that he has a second sister, ' Ajman Cena', subsequently stating that he had not provided her details during his asylum claim because he did not know she was alive at the time.

 

10.          The appellant set out by means of a statement accompanying his Questionnaire a series of events which he said amounted to persecution at the hands of the Yugoslav authorities. His father was an active member of the Democratic League of Kosova ('LDK') leading to the family home being raided on many occasions. He became involved with the LDK and he distributed leaflets for the party along with his brother and a nephew. When undertaking this task, they were seen by Serbian police officers. Whilst he was able to escape along with his brother, his nephew did not. Fearing that the police would look for him, the brothers went into hiding with a relative until hearing news that the family village had been attacked by Serbian special military forces. The appellant returned home to aid his parents and then fled to the mountains. After a month, he went to the home of an uncle where he stayed for two months. He left Kosovo in October 1998, crossing the border into Macedonia. The same day he was hidden in the back of a lorry and travelled for eight days without leaving the vehicle. He then transferred to a second vehicle where he remained for two days until arriving in this country.

 

11.          Upon accepting the appellant's stated identity and history, the respondent recognised him as a refugee and granted him indefinite leave to remain on 6 May 1999.

 

12.          In 2007, the appellant sponsored, in the identity of ' Meridan Cena', an application by his then spouse, an Ecuadorian national, for leave to remain. The couple later separated.

 

13.          The appellant applied for naturalisation on 1 October 2009, in the identity of ' Meridan Cena'. The respondent decided to grant the appellant British citizenship on 15 April 2010 and the appellant attended a naturalisation ceremony on 24 May 2010.

 

14.          On 22 November 2018 a referral was made to the respondent as it was believed that the appellant had obtained British citizenship by deception. The Albanian authorities confirmed that following checks no national was registered on the National Civil Register of Kosovo with the details ' Meridan Cena', born on 27 May 1981 in Greqin, Kosovo, with a father named ' Uk' and a mother named ' Hyre'. The respondent informed the appellant that checks revealed that he was recorded on the Albanian National Civil Status Register as ' Meridan Cenalija', born in Kukes, Albania on 27 May 1979. His father's name was recorded as ' Uk' and his mother's name as ' Hyre'. The Albanian authorities provided an Albanian birth certificate and an Albanian family certificate recording his parents as ' Uk Cenalija' and 'Hyre Cenalija'.

 

15.          The respondent wrote to the appellant on 5 April 2019, detailing that she was considering deprivation action. The appellant's various responses, and documentary evidence presented to the respondent, are considered below.

 

D.            Respondent's decision

 

16.          The respondent's notice of decision to deprive the appellant of British nationality is dated 26 March 2021. It runs to forty-nine paragraphs over fifteen pages. At its core the respondent considered the appellant to have deliberately used a false identity to obtain ILR and then maintained the false identity to obtain British citizenship.

 

17.          It is appropriate to observe the following paragraphs of the decision, absent references to various annexes:

 

'16. On November 2018, a referral was made to the Home Office as it was believed that you had obtained British citizenship by deception. Checks had revealed that you were recorded on the Albanian Civil Registry as Meridan Cenalija, born 27 May 1979, in Kukes, Albania. It was believed that you had falsely claimed to be a minor from Kosovo when you applied for asylum and that you had consistently provided false names for your parents throughout your dealings with the Home Office. A referral had been made to Tirana to conduct birth checks and they confirmed on 17 December 2018 that there was no national registered on the National Civil Register of Kosovo with the details Meridan Cena, born 27 May 1981 in Greqin, Kosovo, father's name Uk and mother's name Hyre. They were able to confirm, however, that there was an Albanian national registered on the National Civil Register of Albania with the details Meridan Cenalija, born 27 May 1979, father's name UK and mother's name Hyre ... The document provided by Tirana includes a photograph of you ... To support this, they also provided an Albanian birth certificate ... and an Albanian family certificate ... which confirmed your genuine identity as Meridan Cenalija, born 27 May 1979 in Kukes, Albania, your father's name as Uk Cenalija, born 12 February 1930 and your mother's name as Hyre Cenalija, born 5 June 1935. This showed discrepancies with the information given throughout your dealings with the Home Office, and on your Form AN ... in order to naturalise as a British citizen, where you gave your details as Meridan Cena, born 27 May 1981 in Greqin, Kosova. It is believed that you used this false identity deliberately to obtain refugee and ILR status, and then maintained it in order to obtain British citizenship status that you would otherwise not have been entitled to, had your genuine identity been known. Chapter 55,7 sets out ' If the relevant facts, had they been known at the time of the application for citizenship was considered, would have affected the decision to grant citizenship via naturalisation or registration, the caseworker should consider deprivation' (Annex Z, page 6, section 55.7). You were granted ILR as a refugee on the basis that you were a Kosovan national and you subsequently went on to obtain British citizenship status. You also claimed to be an unaccompanied minor when you applied for asylum, which you were not. Therefore, your fraud was material to the grant of citizenship.

 

...

 

18 Your representatives, Shan & Co Solicitors, responded on 10 April 2019 with your mitigation ... Your representatives stated in their letter that you had informed them that you first arrived in the UK in 1998 and claimed asylum. They maintained that you were born in 'Kosova'. They explained that due to the problems in Kosovo, your parents went to Albania and registered themselves to live there ... however, they did not provide evidence of this. They named your father as ' Cena Alija' ... which was not consistent with your previous representations to the Home Office, in which you named your father as 'Uke Cena'. With their letter, Shan & Co Solicitors enclosed a copy of a Kosovan birth certificate in the name of Meridan Cena, born 27 May 1981 in Pograxhe, father's name Uke Cena, and mother's name Hyre Cena Neza, issued 6 November 2015 ..., a copy of a Kosovan ID card in the identity Meridan Cena, born 27 May 1981 in Pograxhe, issued 10 November 2015 ..., and a copy of a Kosovan passport in the identity Cena Meridan, born 27 May 1981 in Pograxhe, issued on 12 November 2015 ...

 

19. As the Kosovan documents that you provided appeared to be genuine they were sent to Tirana for further checks to find out how you obtained them, and to see whether you had registered as a Kosovan national and on what date. Tirana responded that they were looking into this and would provide an official response once a decision had been made. An official response was received from the Civil Registration Agency in Kosovo on 11 March 2021. The official response, dated 9 March 2021, has been translated into English ... The response stated ' the Civil Registry Office of Kline, has made the decision for the cancellation of the registration in the Central Registry Office in relation to - Meridan Cena, born on 27/05/1981 in Proraxhe, Municipality of Kline' ... This confirms that you were not born in Kosovo and should not have obtained Kosovan documents. It further confirms that you have practised deception throughout your Home Office dealings, and shows that your fraud was a clear and deliberate attempt to undermine the UK immigration system, as evidenced by the lengths that you went to, to obtain Kosovan documents fraudulently.

 

..

 

27. In the investigation letter dated 26 November 2019, you were asked for more information on your claim that your father had registered you with the Kosovan authorities, including when and where he did this, why your place of birth was recorded incorrectly, and why he did not register any of your other family members ... In your response, you claimed that you did not know what year your father registered you with the Kosovan authorities, you had just been told by him that he had done it ... You claimed that your birthplace was correctly registered as Gercine/Grcina ... however this is inconsistent with the Kosovan documents that you provided which show your place of birth was registered in Pograxhe ... The inconsistency demonstrated raises doubt on the accuracy of your statement.

 

28. In the investigation letter dated 26 November 2019, you were asked for more information on your claim that you took your birth certificate to the Kosovan Registrar's office to obtain your Kosovan ID card and passport. It was put to you that the Kosovan authorities had no record of you when they were contacted in 2018, despite you claiming that you were on their records in 2015 .... In your response, you explained that you had obtained the documents from the Kosovan Registrar's office in Gjakova, Kosovo, as you thought it may help if you wanted to initiate any business in Kosovo. You maintained that you went to the Kosovan Registrar's office and gave your details and they had your details in their system and produced a copy of the birth certificate .... It is not believed that the Kosovan authorities would have issued your birth certificate to you without evidence of your identity being submitted first. The official response from Kosovo that was received on 11 March 2021, after your Kosovan documents were sent to them, indicates that you did not obtain the documents in the way you have claimed that you did, as they removed your registration upon inspecting them ... This again casts doubt over the validity of your statement. Also, you did not provide an explanation from the Kosovan authorities as to why you were supposedly on their records in 2015 and not in 2018, as requested.

 

...

 

31. In the investigation letter dated 26 November 2019, you were asked further questions about why your father was known as 'Cenalija' to the Albanian authorities and why he did not have this corrected if it is not his genuine identity, as you claim. You were also asked why the Albanian authorities have a record of both of your parent's being born, not registered, in Albania and being Albanian nationals. Finally, you were asked why you appear on the Albanian records as being born in Albania with an Albanian birth certificate, and why the Albanian authorities issued you with a National ID card ... In your response, you explained that your father is known as 'Cenalija' to the Albanian authorities because his surname and his father's name were combined toegther, and he did not bother to correct it ... It is now known that 'Cenalija' is your father's genuine surname, and therefore your statement was false. You submitted that when people register with the Albanian authorities, they consider them as Albanian nationals, and when people register their names in Albania, the authorities automatically enter as born in Albania ... You provided no evidence that this is the process in Albania. You obtained an Albanian ID card, evidenced by the Tirana information pack ... and by your own admission in your statement of truth ... To obtain this, you would have had to have been an Albanian national ....

 

...

 

33 ... You clearly practiced deceit in your dealings with the Home Office as you knowingly and willingly used a false identity to obtain refugee status and ILR that you were not entitled to, and you maintained this identity in order to naturalise as a British citizen. Had the nationality caseworker known about your fraud at the time you made your application for naturalisation, you would not have been granted citizenship as you would not have met the good character requirement. Therefore, your fraud was material to the grant of citizenship as per Chapter 55.7.1 (Annex Z, page 6, section 55.7.1).

 

...

 

35 You have perpetrated a deliberate fraud against the UK immigration system by using a false identity and a fabricated asylum claim. You purposely concealed your Albanian identity and took advantage of the situation in Kosovo at the time to obtain refugee status that you were not entitled to. Your refugee status allowed you to obtain ILR status and eventually to naturalise as a British citizen. Your fraud is evidenced by your application forms, your Albanian family and birth certificates, and by the information provided by Tirana. Your fraud was clearly material to the grant of citizenship as your nationality application could have been refused, had your previous and continuing fraud been known. Also, on the basis that you have not met the good character requirement. For over 21 years you have benefitted from leave in the UK that you were not entitled to, and despite your conduct being presented to you by the Home Office, you continue to maintain your deception and show no remorse. Therefore, it is considered that deprivation is a balanced and proportionate step to take.'

 

E.             Evidence

 

18.          The appellant relies upon his witness statements and additionally upon correspondence and information provided by his legal representatives on his behalf to the respondent in response to requests for information prior to the decision to deprive being issued.

 

19.          He first explained to the respondent by a letter dated 10 April 2019 that consequent to problems in Kosovo his parents relocated to Albania and registered themselves with the authorities.

 

20.          By his witness statement dated 7 August 2019, the appellant confirmed that he was born in 'Grcina'. It is noted that this village is situated in the district of Gjakova. He stated that his identity documents were destroyed during the 1998 war. His father, mother and siblings were displaced to Albania and registered themselves as residing there. He details at paragraph 4 of his statement:

 

'4. During the time of war we did not know that we can live in Albania continuously. Therefore, I travelled to the UK seeking protection from the Kosovo authorities.'

 

21.          When the war ended, his father returned to Kosovo and registered the appellant so as to 'get documents'. It was at this time that the appellant's place of birth was registered as 'Pograxhe'. There are two villages of this name in Kosovo. Ms Ferguson helpfully confirmed that the appellant hailed from the village near Klina, in Peja district, north of Gjakova district. The appellant does not know when his father undertook this task and is unable to now ask as his father suffers from dementia

 

22.          In his witness statement dated 16 December 2019, the appellant explained that he did not know the year when his father registered him with the Kosovan authorities. He did not know why his father only registered him and no other member of the family.

 

23.          He personally attended the Kosovan Registrar's office in Gjakova, and provided his details. They were recorded on the system, and they provided him with his birth certificate which was later forwarded to the respondent.

 

24.          At the First-tier Tribunal hearing on 10 January 2022 the appellant confirmed that he attended the Registrar's office in Gjakova in 2015 and secured the documents because he believed he would need them if he wanted to start a business in this country. He travelled to Gjakova with his father and visited an uncle residing in Kosovo.

 

25.          He detailed that his father is known as 'Cenalija' in Albania, a combination of his paternal surnames. His father was not concerned at taking steps to amend his registered surname.

 

26.          The appellant confirmed that the respondent holds his Kosovan passport, and he did not believe the Kosovan authorities had taken away his nationality.

 

27.          The reason why his Albanian birth certificate recorded him as having been born in Kukes is that this is the city in Albania where his father registered him. His father took this step consequent to blood feuds and because the city was proximate to the Kosovan/Albanian border.

 

28.          He did not know why the Albanian authorities considered him to be Albanian, but it would have been because of his father registering him. When he had asked his father, he was informed that he had taken this step because he wanted to protect him, the family having moved to Albania due to a blood feud. His family secured Albanian citizenship because they did not want to return to Kosovo. He was unable to explain what differences his parents had living in Albania rather than in Kosovo, stating that he had questioned his father many times on this subject.

 

29.          At the hearing before the Upper Tribunal, the appellant accepted through Ms Ferguson that he was not born in 'Pograxhe' as detailed in several documents, including the Kosovan birth certificate provided to the respondent. Ms Ferguson confirmed the position that the details as to his identity provided to the respondent in 1998 are correct. The appellant therefore did not rely upon his evidence before the First-tier Tribunal detailed at paras. 48 to 50 of Judge Buckwell's decision:

 

'48. The appellant confirmed to me that whatever the family background had been, Kosovo recognised him as a citizen of that country. The appellant confirmed, however, that although he had thought that he had been born in Kosovo he had in fact been born in Albania. As to any further Kosovan links, the appellant stated that his family have a Kosovan background. He confirmed again that the authorities in Kosovo had accepted him as Kosovan.

 

49. Mr Terrell [Presenting Officer] posed some further questions, following my own. The appellant clarified that his father had told him that he was born in Albania. Asked if he believed his father, the appellant said that it had been the word of his father. Asked when he had first believed that, the appellant said that it had been when he had discussed such matters with his father.

 

50. Referring to his entering this country in 1998 the appellant was asked whether he believed during the early 2000s that he had been born in Albania, the appellant so confirmed. By 2002/03 he so believed. He was therefore asked by Mr Terrell that with respect to the application in 2009 although he stated that his country of birth was Kosovo, that had not really been true? The appellant said that he has existed in the registrations held in Kosovo. It was put to him that his father had said that he has been born in Albania. The appellant confirmed. The appellant was asked by Mr Terrell whether it was not the case that he had therefore lied. The appellant said that he knew that really he had been born in Kosovo. There had been a mix-up between the families. That had also related to family names. It was put to the appellant that by 2009 he had believed he had been born in Albania. He had put Kosovo on the form and therefore that had been a lie. The appellant responded by saying that he was registered in Kosovo and that his family had originated from there.'

 

F.              Hearing

 

30.          The parties were content to proceed by submissions, which focused primarily on documents filed with the Upper Tribunal.

 

31.          I reference several documents below in detail but confirm that I have considered all documents filed by the parties with care, as well as the appellant's witness statements.

 

Documents

 

        i.             Respondent

 

32.          The respondent relies upon, inter alia:

 

                       i)             Self-completion questionnaire

 

33.          The appellant's self-completion questionnaire, completed by his then legal representatives on 15 December 2008. He is named ' Meridan Cena'. His place of birth is identified as 'Grecin, Kosovo', and 'his last address in country of origin' is detailed as 'Greqin village, 'Kisha e Vjeter', Kosova 38320'. This address is repeated as the 'family address' later in the document. I take judicial note that 'Kisha e Vjeter' means 'the old church' in Albanian. I note that in his witness statement dated 7 August 2019 he states that he was born in 'Grcina' and in his statement of 16 December 2019, he explains that he was born in 'Gercine'. I am satisfied that these translations reference the same village, as does 'Gregine' which is used elsewhere in the documentation filed with this Tribunal.

 

34.          His father is identified as ' Uke Cena', aged approximately 64 years old, and his mother as ' Hyre Cena', aged approximately 69 years old.

 

35.          An accompanying undated statement confirms the appellant's identity, and states that he was born in Greqin. He explained that he was persecuted and harassed in Kosovo on account of his Albanian ethnicity. His father, a teacher, was an active member of the LDK, and this led to the family home being raided on many occasions. An elder brother of the appellant was arrested on one occasion and detained for twenty-four hours. His father was dismissed from his employment because he refused to accept a new Serbian curriculum, and from 1993 until 1997 he taught students history in the family home. In October 1997 his father was again arrested. In 1998, the appellant, his brother and a nephew agreed to help distribute political leaflets. They were encountered by the police and fled. The nephew was captured and was ill-treated. The appellant subsequently fled Kosovo.

 

                     ii)             Application for a Home Office Travel Document

 

36.          In his application dated 12 July 1999 the appellant recorded his place of birth as 'Gregine' and his date of birth as 27 May 1981. He stated that he travelled to the United Kingdom via Macedonia, Germany and France.

 

                  iii)              Interview record, Belgium

 

37.          On 29 October 2004 the appellant applied for a new Home Office Travel Document, stating that his previous Travel Document had been stolen in Belgium. He provided a translated interview with the Belgian police to support his application. The interview transcript confirmed the appellant as stating that he is ' Meridan Cena', born in Gjakova on 27 May 1981.

 

                   iv)             Application for Naturalisation

 

38.          By a Form AN dated 22 September 2009 the appellant identifies himself as ' Meridan Cena' and confirms that he was born on 27 May 1981 in Greqin, Kosovo. Both his parents are identified as having been born in the same village. A referee, Isak Sina, stated that he knew the appellant from Kosovo.

 

                     v)              Albanian Birth Certificate

 

39.          A birth certificate issued by the Albanian authorities on 10 October 2018 in the name of ' Meridan Cenalija', born on 27 May 1979 in Kukes, Albania. His father is ' Uk' and his mother is ' Hyre'. The family are detailed as residing in Kukes.

 

                   vi)             Letter form the British Embassy, Tirana

 

40.          The letter is dated 17 December 2018 and details, inter alia:

 

'I am pleased to report that, with the assistance of trusted colleagues at the Albanian Ministry of the Interior, I have successfully conducted checks with the Directorate of Border and Migration and the General Directorate of Civil Registry at the Albanian Ministry of the Interior. In accordance with the Memorandum of Understanding between the British Secretary of State for the Home Department and the Minister of Interior of the Republic of Albania, this information has been exchanged securely and confidentially between designated officials having deemed there are necessary grounds for this exchange of information for immigration-related purposes.

 

Please find below an excerpt from correspondence with the General Directorate of Civil Registry at the Albanian Ministry of the Interior citing the results of these verification checks.

This has been translated into English for ease:

 

'In response to your letter dated 02/10/2018 ... we would like to inform you that following verification with the National Civil Status Register of the year 2010, it is found that:

 

An Albanian national is registered on the National Civil Register of Albania with the provided details (name and surname): Meridan CENALIJA .... father's name Uk, mother's name Hyre;

 

The family is registered as living at [Kukes]. The current family composition consists of the subject, his mother and his brother's family.

 

Checks, conducted with the Agency for Civil Registrations at the Ministry of Internal Affairs of Kosovo, have produced the following results:

 

NO national is registered on the National Civil Register of Kosovo with the provided details (name and surname): Meridan Cena, 27051981, father's name Uk, mother's name Hyre, claimed place of birth, Greqin, Kosovo.

 

A copy of the appellant's photograph was provided.'

 

                vii)             Letter from the Kosovan Ministry of Internal Affairs

 

41.          The letter, dated 9 March 2021, confirms, inter alia:

 

'The Civil Registration Agency informs you that: once the Inspection was carried out by the CRA Inspectorate, the case has been initiated at the Kosovo Police (as we have notified you through the official email) meanwhile, the Civil Registry Office of Kline has made the decision for the cancellation of the registration in the Central Registry Office in relation to:

 

Meridan Cena, born on 27/05/1981 in Pograxhe, Municipality of Kline.'

 

             viii)              Albanian Family Certificate

 

42.          The undated Family Certificate details that ' Meridan Cenalija', a divorced male, is a family member of ' Uk Cenalija' and ' Hyre Cenalija'. All three were born in Kukes and are Albanian citizens.

 

      ii.             Appellant

 

43.          The appellant relies, inter alia, upon the following documents.

 

(a)    Kosovan Birth Certificate - issued on 6 November 2015

 

44.          The appellant provided a birth certificate to the respondent, confirming that he is ' Meridan Cena' born on 27 May 1981. His place of birth is detailed as 'Pograxhe', his place of residence at the time of registration is detailed as 'Gercine' and his parents are detailed as ' Uka Cena' born on 12 February 1930 and ' Cena Neza Hyre' born on 5 June 1935. The certificate was issued on 6 November 2015.

 

(b)   Kosovan Identity Card - expires on 9 November 2025

 

45.          The appellant's Kosovan identity card identifies him as ' Meridan Cena' born on 27 May 1981 in 'Pograxhe. His residence is detailed as 'Gercine'.

 

(c)    Kosovan Passport - issued on 12 November 2015

 

46.          The appellant's Kosovan passport is in the identity of ' Meridan Cena' born on 27 May 1981. It identifies the appellant as being born in 'Pograxhe'. The passport was issued on 12 November 2015.

 

(d)   Certificate of Residence

 

47.          The certificate of residence issued by the Kosovan authorities on 11 December 2019 identifies 'M eridan Cena' as a Kosovan national born in 'Pograxhe' on 27 May 1981 and residing in 'Gercine' .

 

(e)    Extract from the Central Register of Civil Status, Kosovo

 

48.          The extract issued on 11 December 2019 identifies ' Meridan Cena' as a Kosovan national born on 'Pograxhe' on 27 May 1981 and residing in 'Gercine'. His parents are identified as ' Uke' and ' Hyre'.

 

(f)     Kosovan Citizenship Certificate

 

49.          The certificate, issued on 11 December 2019, confirms ' Meridan Cena' as a Kosovan citizen born in 27 May 1981 in 'Pograxhe'.

 

G.            Submissions

 

50.          Ms Cunha accepted that the burden of proof rests upon the respondent. She submitted that notwithstanding the production by the appellant of a Kosovan passport, the respondent has discharged the burden. There has been continuous deception by the appellant as to his true nationality and age. He has been inconsistent as to his father's name.

 

51.          Reliance was placed upon the appellant's assertion in his 2008 self-completion questionnaire that he had left Kosovo by crossing the border into Macedonia. He now accepts that his family moved to Albania, and he was in that country before he travelled to the United Kingdom.

 

52.          The Albanian authorities recognise the appellant as one of its citizens. Consequently, even if the appellant does enjoy dual nationality as now asserted, he employed deception as he could have sought safety in Albania if he had truly fled during events in 1998.

 

53.          Reliance was placed upon the appellant's inconsistency as to where he was born, either Gricina, Podraxhe, or Gjakova. Further, he was inconsistent as to his father's name over time.

 

54.          The Kosovan authorities do not recognise the appellant as being one of its citizens. The Kosovan Ministry of the Interior has confirmed that it has cancelled the appellant's registration.

 

55.          Whilst Article 3 of the Law on Albanian Citizenship permits dual nationality, Ms Cunha observed that citizenship by naturalisation requires a non-Albanian citizen to have lawfully resided in the territory of the country for at least five years, which is a requirement the appellant does not assert he has ever met: Article 9(2). Additionally, a child at the time of their parent(s) naturalisation can only secure citizenship through their parent(s) in identified circumstances, including that they are aged under 18 and live with their parent(s): Article 11.

 

56.          The respondent's position is that the appellant has continuously misrepresented his true circumstances in relation to his identity and nationality throughout his time in the United Kingdom.

 

57.          Ms Ferguson relied upon her skeleton argument. The existence of a Kosovan birth certificate, a Kosovan identity card and a Kosovan passport evidence that the appellant did not commit fraud in respect of securing British citizenship. Little weight should be given to the documents received by the British Embassy, Tirana, in December 2018 and from the Kosovan Interior Ministry in March 2021. There is very little information provided as to the checks conducted, and the process adopted is 'entirely opaque'. This Tribunal must know enough about the provenance of the information to make its own assessment as to whether the evidence obtained is reliable: AAW (Expert evidence - weight) [2015] UKUT 673, at [40].

 

58.          Ms Ferguson observed that the appellant's present circumstances were a consequence of his personal history in the Kosovan war. She accepted on behalf of the appellant that he is registered as a citizen with the Albanian authorities, such inference being drawn from paragraphs 16 and 17 of his witness statement dated 16 December 2019. It was accepted that he has been issued with an Albanian identity card and that various documents issued by the Albanian authorities record him as being born in Kukes. His belief is that he secured Albanian nationality having been registered by his parents with the Albanian authorities. However, he resided in the United Kingdom at the relevant time and is unclear as to the details of his registration.

 

59.          In respect of the appellant travelling to Albania before moving onto the United Kingdom, Ms Ferguson submitted that the appellant did not know that he would be able to stay in Albania and did not consider it safe to reside there. He was a child when he detailed his journey to the United Kingdom authorities.

 

60.          Turning to the decision letter, Ms Ferguson criticised para. 19 as it was unclear as to what register the appellant had been removed from. Additionally, para. 28 evidenced a leap in logic. There was no tension between being on the register at one point in time, but not another. Rather, there is a tension between the appellant not appearing on the Kosovan register and his registration being cancelled. The clear import is that the appellant was on the register and was allegedly removed from it. The respondent has not explained how the Albanian authorities were able to persuade the Kosovan authorities to remove someone from the civil register in a summary manner.

 

61.          Ms Ferguson acknowledged that the appellant's case as to possessing Albanian citizenship was that simply by registering, and no more, both he and his parents became Albanian citizens.

 

H.            Law

 

62.          Section 6(1) of the 1981 Act gives the respondent power, 'if he thinks fit', to grant a certificate of naturalisation as a British citizen to a person, if satisfied that the applicant meets the requirements in Schedule 1 to the Act. There is no right to a certificate of naturalisation. A requirement is that the applicant must be of good character. Schedule 1 expressly provides that some of its requirements may be modified or waived by the respondent though the requirement of good character is not such a provision. The 1981 Act does not define good character. It is for the respondent in the first instance to decide whether a person is of good character, and in doing so she is entitled to apply a high standard: R v. Secretary of State for the Home Department, ex parte Al-Fayed [2001] Imm AR 134.

 

63.          Section 40(3) of the 1981 Act: (as amended):

 

(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-”

 

(a) fraud,

 

(b) false representation, or

 

(c) concealment of a material fact.

 

64.          Following the Supreme Court judgment in R (Begum) v. Special Immigration Appeals Commission [2021] UKSC 7, [2021] AC 765, the Upper Tribunal confirmed in Ciceri, at [30], that in deprivation appeals:

 

(1)     The Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the British Nationality Act 1981 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. In answering the condition precedent question, the Tribunal must adopt the approach set out in paragraph 71 of the judgment in Begum, which is to consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or are based on a view of the evidence that could not reasonably be held.

 

(2)     If the relevant condition precedent is established, the Tribunal must determine whether the rights of the appellant or any other relevant person under the ECHR are engaged (usually ECHR Article 8). If they are, the Tribunal must decide for itself whether depriving the appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR.

 

(3)     In so doing:

 

(a)     the Tribunal must determine the reasonably foreseeable consequences of deprivation; but it will not be necessary or appropriate for the Tribunal (at least in the usual case) to conduct a proleptic assessment of the likelihood of the appellant being lawfully removed from the United Kingdom; and

 

(b)    any relevant assessment of proportionality is for the Tribunal to make, on the evidence before it (which may not be the same as the evidence considered by the Secretary of State).

 

(4)     In determining proportionality, the Tribunal must pay due regard to the inherent weight that will normally lie on the Secretary of State's side of the scales in the Article 8 balancing exercise, given the importance of maintaining the integrity of British nationality law in the face of attempts by individuals to subvert it by fraudulent conduct.

 

(5)     Any delay by the Secretary of State in making a decision under section 40(2) or (3) may be relevant to the question of whether that decision constitutes a disproportionate interference with Article 8, applying the judgment of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159. Any period during which the Secretary of State was adopting the (mistaken) stance that the grant of citizenship to the appellant was a nullity will, however, not normally be relevant in assessing the effects of delay by reference to the second and third of Lord Bingham's points in paragraphs 13 to 16 of EB (Kosovo).

 

(6)     If deprivation would not amount to a breach of section 6 of the 1998 Act, the Tribunal may allow the appeal only if it concludes that the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted; has taken into account some irrelevant matter; has disregarded something which should have been given weight; has been guilty of some procedural impropriety; or has not complied with section 40(4) (which prevents the Secretary of State from making an order to deprive if she is satisfied that the order would make a person stateless).

 

(7)     In reaching its conclusions under (6) above, the Tribunal must have regard to the nature of the discretionary power in section 40(2) or (3) and the Secretary of State's responsibility for deciding whether deprivation of citizenship is conducive to the public good.

 

65.          A Presidential panel confirmed in Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC) that a Tribunal determining an appeal against a decision taken by the respondent under section 40(3) of the 1981 Act should consider the following questions:

 

(a) Did the respondent materially err in law when she decided that the condition precedent in section 40(2) or section 40(3) of the British Nationality Act 1981 was satisfied? If so, the appeal falls to be allowed. If not,

 

(b) Did the respondent materially err in law when she decided to exercise her discretion to deprive the appellant of British citizenship? If so, the appeal falls to be allowed. If not,

 

(c) Weighing the lawfully determined deprivation decision against the reasonably foreseeable consequences for the appellant, is the decision unlawful under section 6 of the Human Rights Act 1998? If so, the appeal falls to be allowed on human rights grounds. If not, the appeal falls to be dismissed.

 

66.          Both the First-tier Tribunal and the Upper Tribunal are limited to applying a public law approach to the respondent's deprivation decision in a section 40(3) appeal.

 

67.          In considering questions (a) and (b), the Tribunal must only consider evidence which was before the respondent, or which is otherwise relevant to establishing a pleaded error of law in the decision under challenge.

 

68.          In considering question (c), the Tribunal may consider evidence which was not before the respondent but, in doing so, it may not revisit the conclusions she reached in respect of questions (a) and (b).

 

69.          The appellant contends that (a) is a live issue in this matter. The appellant accepts that if the condition precedent is met in this matter the decision to deprive is unlikely to be in breach of article 8 rights nor disproportionate

 

I.               Discussion

 

70.          This is a matter that, ultimately, hinges upon documents, and it is proper to note that the burden of proof as to the appellant's conduct coming within the scope of section 40(3) of the 1981 Act rests upon the respondent: Arusha and Demushi (deprivation of citizenship - delay) [2012] UKUT 80 (IAC).

 

71.          The task of this Tribunal at the remaking stage is to scrutinise, using established public law criteria, whether the conclusion that the condition precedent to depriving the appellant of citizenship has been vitiated by an error of law. It is not the task of the Tribunal to undertake a merits-based review and redetermination of the decision on the existence of the condition precedent, as if it were standing in the shoes of the respondent.

 

72.          At the outset, I recognise that the consequences of a finding of fraud is serious. It is for the respondent to adduce cogent evidence of the same.

 

73.          For the reasons detailed below, I find the respondent has lawfully concluded that:

 

•         The appellant is ' Meridan Cenalija';

•         He was born in Kukes, Albania, on 27 May 1979, and he has held Albanian nationality since birth;

•         He has never held Kosovo nationality and has never resided in Kosovo;

•         He sought asylum in a false identity, namely as a Kosovan called ' Meridan Cena' born on 27 May 1981;

•         He provided a false identity to the respondent when seeking international protection because he would have been removed from this country if he had detailed he was an adult citizen of Albania;

•         He provided a false date of birth to benefit from additional benefits given to unaccompanied minor asylum seekers;

•         He secured ILR in his false identity and then used his false identity to naturalise;

•         If the respondent had been aware of the appellant's true identity she would not have granted him refugee status and ILR on 6 May 1999, nor issued him with a travel document on two occasions;

•         If the respondent had been aware of the deception previously used in securing settlement, and the continued use of a false identity, the application for naturalisation would have been refused on good character grounds.

•         The appellant's naturalisation was obtained by means of fraud.

 

74.          Turning first to the respondent's consideration as to whether the appellant is a Kosovan national, I observe the respondent's acceptance at para. 19 of its decision that documents provided by the appellant appeared to be genuine, and so they were sent to Tirana for further checks to ascertain how they were obtained. The appellant's challenge before this Tribunal is, in part, based upon a concern as to limited information being provided as to how the resulting checks were undertaken. It is appropriate at this juncture to confirm that the appellant's reliance upon the guidance detailed in AAW is misplaced. The information provided to the British Embassy, Tirana, was from the Albanian authorities, and conveyed, in part, additional information provided by the Kosovan authorities. Such information is not evidence provided by an expert witness, but by States through international agreement and co-operation.

 

75.          As to the appellant's stated concern in respect of the investigation of registry details being opaque, I find that it is not borne out on the face of the letter from the British Embassy, dated 17 December 2018. The respondent, and the United Kingdom Government, have significant and long-standing experience of diplomatic relations with the Governments of Albania and Kosovo, and such experience permits the ability to firstly assess the quality of the information provided and then consider whether in light of the individual State's practices the information can be relied upon. Both the Albanian and Kosovan authorities undertook examination of their relevant civil registers. I find that the respondent could lawfully rely upon both the Albanian and Kosovan authorities diligently undertaking checks of their own national registers and ensuring that correct information is provided to other States. In this matter, the respondent undertook an evaluation of the reliability of the information provided to the British Embassy by both the Albanian and Kosovan authorities, and considered it to be an important factor in its assessment. There would have to be clear evidence to the contrary to go behind that opinion and no such evidence is advanced on behalf of the appellant. I observe that the appellant does not dispute that the details provided by the Albanian authorities as to his registration, passport details, ID case number and bio-data photograph are correct. An assertion as to one or both States acting in bad faith would have to be proved by the appellant. No such assertion has been made.

 

76.          Consequently, the respondent could reasonably and lawfully rely at para. 16 of her decision upon the information provided by the Kosovan authorities that there was no national registered on the National Civil Register with the following details:

 

'Meridan Cena 27051981. father's name Uk, mother's name Hyre, claimed place of birth, Greqin, Kosovo.'

 

77.          Turning to the letter from the Civil Registration Agency, Ministry of Internal Affairs, Kosovo, dated 9 March 2021, I note that Ms Cunha was unable at the hearing to provide additional detail as to the work of this Agency. However, the Agency liaised with the Albanian authorities on behalf of the Kosovo authorities when providing results of the check undertaken of the National Civil Register, as recorded in the British Embassy letter. It therefore can properly be considered a competent domestic authority in respect of providing information placed on the National Civil Register.

 

78.          I am satisfied that the respondent could reasonably proceed at para. 19 of her decision on the basis that Kosovan authorities had decided to cancel the registration on the National Civil Register in respect of the entry below:

 

'Meridan Cena, born on 27/05/1981 in Pograxhe, Municipality of Kline'

 

79.          It is appropriate to note that on the appellant's own evidence the registration was erroneous in fact. His position before this Tribunal is that he was born in Gercine, not Pograxhe, and so on its face a decision by national authorities to cancel an incorrect entry on the National Civil Register would be an appropriate administrative step. The respondent could properly consider such step to be proportionate. Whilst it is for the Kosovan authorities to investigate the circumstances of the registration, I am satisfied that the respondent could reasonably conclude that this registration had been removed from the National Civil Register.

 

80.          The question for the respondent was whether the appellant was a Kosovan national at the time when he sought international protection, or when he applied to naturalise. The appellant relies upon having been issued with a passport and an identity card by the Kosovan authorities. The respondent considered the appellant's explanation as to how he secured both his identity card and passport, having obtained his birth certificate from the Registrar's Office in Gjakova. In light of the findings above, I consider the respondent's conclusion at para. 26 that the appellant did not obtain these documents in the manner asserted to be reasonable and lawful. The respondent could lawfully rely upon the Kosovan authorities removing the appellant's registration as having been born on 27 May 1981 in Pograxhe upon inspecting this entry as it was erroneous in fact.

 

81.          I find that the respondent could lawfully rely at para. 27 upon the appellant's vagueness as to when and how his father came to register him, and not his siblings, with the Kosovan authorities and his assertion at para. 2 in his witness statement dated 16 December 2019 that his birthplace was 'correctly' registered as Gercine, when the accompanying birth certificate details his place of birth as 'Pograxhe'.

 

82.          Consequently, I am satisfied that the respondent reasonably and lawfully concluded at para. 19 that the appellant was not born in Kosovo and should not have obtained Kosovan documents. At the core of her decision, the respondent could properly rely upon the Kosovan authorities confirming that 'Meridan Cena' was not born on 27 May 1981 in either Gercine or Pograxhe. She therefore reasonably and lawfully proceeded on the basis that the appellant was not born in Kosovo.

 

83.          I observe Ms Ferguson submission that there is a tension in para. 28 of the respondent's decision, where reliance is placed upon the appellant's birth in 'Pograxhe' being entered onto the National Civil Register when he secured his birth certificate and other documents in 2015, but not at the time of the checks in 2018. The respondent appears to have conflated two separate matters: the appellant relied upon the entry detailing his place of birth as 'Pograxhe' when securing his birth certificate whilst the check in 2018 concerns the appellant's assertion that he was born in 'Greqin', of which there is no record. However, when considering the detailed and various reasoning of the respondent elsewhere in her decision letter, I find that this conflation does not establish a material error of law.

 

84.          The conclusion that the appellant practised fraud throughout his dealings with the respondent, and the exercise of fraud was a clear and deliberate attempt to undermine the domestic immigration system, as evidenced by fraudulently obtaining Kosovan documentation, was reasonably open to the respondent.

 

85.          The appellant accepted that his personal circumstances were not as explained when he sought international protection. He had not travelled from Kosovo to Macedonia, and then onto the United Kingdom. The respondent records at para. 29 the appellant's acceptance, on his stated history, that he travelled first to Albania and then embarked on his journey to this country. In circumstances where the respondent reasonably concluded that the appellant is not a Kosovan national, she could lawfully conclude at para. 19 that having travelled to this country from Albania the appellant deliberately practiced deception when asserting his personal history to increase his chances of being granted asylum in this country.

 

86.          Turning to the appellant's Albanian citizenship it is unsurprising that this is not denied as the appellant's photograph has been placed on the bio-data system held by the Albanian authorities. The appellant's challenge is to the respondent's consideration of the information he provided explaining how he secured citizenship.

 

87.          The respondent noted the appellant's assertion that his parents relocated to Albania consequent to the conflict in Kosovo and registered with the Albanian authorities. It was reasonably open to the respondent to observe that neither parent provided evidence as to their registration, at para. 18.

 

88.          At para 31, the respondent noted the appellant's position that 'when people register with the Albanian authorities, they consider them as Albanian nationals, and when people register their names in Albania, the authorities automatically enter as born in Albania.' The respondent observed that no evidence was presented as to such process existing in Albania. Ms Ferguson developed the appellant's case before this Tribunal. She observed Article 3 of the Law on Albanian Citizenship:

 

'Article 3

 

The Albanian citizen can also be a citizen of another country.'

 

89.          Ms Ferguson submitted that citizenship can be granted by naturalisation, and that residency requirements are relaxed where a foreigner can prove that he is of Albanian origin or its stateless. In advancing this contention, reliance was placed upon a document that was not before the respondent at the date of her decision, a 'Report on Citizenship Law: Albania', authored by Gezim Krasniqi and published by the Global Citizenship Observatory in March 2021. I consider that at its core the request to consider this document was on the ground that an error of a material fact establishes an error of law: R (Iran) v. Secretary of State for the Home Department [2005] EWCA Civ 982 .

 

90.          Various sections of the report were marked by Ms Ferguson with an accompanying request that they be considered:

 

•         The Albanian state has occasionally extended some citizenship rights to its co-ethnics in the post-Yugoslav states: page 1.

 

•         Between 1992 and 1997 Albanian citizenship seems to have been easily flexible. Some 2,530 persons acquired Albanian citizenship, with the majority of them being Albanians from former Yugoslavia: pages 9-10.

 

o    It is noted that the appellant's case is that he and his parents left Kosovo in October 1998.

 

•         According to Article 19 of the 1998 constitution everyone born with at least one parent who is an Albanian citizen acquires Albanian citizenship automatically: page 10.

 

o    On the appellant's case his parents were nationals of the Federal Republic of Yugoslavia when he was born, not Albania.

 

•         On 3 July 2013 decree no 554 on 'Procedures for the Recognition and Acquisition of Albanian Citizenship by Persons of Albanian Origin, Excluding Citizens of the Republic of Kosovo' was adopted: pages 11-12.

 

o    The author of the report details a reason for the exclusion of Kosovan citizens at page 12: "Despite calls by various nationalist organisations to include to grant Kosovan Albanians resident in Kosovo Albanian citizenship and thus enable them to travel visa-free in the Schengen Area, such move was unrealistic in the face of EU threat to reintroduce visas for Albanian citizens had Albania offered citizenship to 1.8 million ethnic Albanians in Kosovo."

 

o    As the appellant is unable to establish on his own case the date when he and his family secured Albanian citizenship - the respondent concluding that he was born in Albania - the appellant is unable to establish that (1) he secured Albanian citizenship after he secured British citizenship in May 2010, and (2) that he secured Albanian citizenship through this decree. It is clear on the appellant's own evidence that he did not personally apply for citizenship under this decree. He remains unaware, on his own case, as to how he secured Albanian citizenship.

 

•         Article 8 permits naturalisation consequent to an application. An applicant requires, inter alia, to have reached the age of 18, to have lawfully resided in Albania for not less than seven continuous years and to have a dwelling in the country: page 13.

 

o    On the appellant's own case, he has never been capable of meeting the last two requirements, having resided only briefly in Albania in 1998.

 

•         Article 8, para. 5 permits a child who has not reached the age of 18 and who lives with their parents to become an Albanian citizen if both parents acquire Albanian citizenship: page 14.

 

o    The appellant is unaware as to when his parents secured Albanian citizenship, but on his own case he was briefly in Albania in 1998 before heading onto the United Kingdom.

 

•         Facilitated naturalisation is applied in the case of individuals of Albanian origin. This is determined by article 6 - reference to 'by birth right' at article 6, para. A - where an applicant can prove descent, up to three generations, from persons of Albanian origin. Origin does not refer to ethnic origin, but to citizenship: page 14.

 

o    The appellant has not expressly advanced by evidence, whether documentary or by his witness statements, that one or more of his grandparents are/were Albanian citizens. In his oral evidence before the First-tier Tribunal the appellant confirmed that his family 'have a Kosovan background'.

 

•         Between 1991 and 2007 a total of 3,184 foreigners, mostly Albanians from former Yugoslavia, acquired Albanian citizenship. Since 2010 the numbers have increased. Most citizenship acquisitions falls in the category of exceptional naturalisation through the 'special interest'/acquisition by a Presidential decree mode, of whom there were 733 between 2000 and 2018: page 15

 

o    The appellant has not advanced a positive case, before the respondent or this Tribunal, that he and his family acquired Albanian citizenship through Presidential decree. As noted by the respondent, the appellant has provided no documentary evidence as to how he and his family acquired Albanian citizenship. His case, as accepted by Ms Ferguson in her submissions, is that his parents' act of registering with the Albanian authorities was sufficient for the family to secure Albanian citizenship and led to them being recorded as having been born in Kukes, Albania.

 

91.          Upon careful consideration, and for the reasons detailed above, the report provides no support to the appellant in establishing that the respondent erred in fact and so in law when relying upon the birth certificate and other related information provided by the Albanian authorities. It does not establish that the respondent erred in rejecting the appellant's contention that simply by registering their names with the Albanian authorities, non-Albanian citizens are automatically registered as having been born in Albania and are considered to be Albanian citizens. The respondent reasonably and lawfully concluded that the evidence provided by the Albanian authorities established that the appellant was born in Kukes, Albania and has been an Albanian national since birth, as have his parents.

 

92.          The respondent's decision, as a whole, supports the conclusion that she relied upon the appellant's continuing deception and fraud by giving a false name and nationality on his application for asylum, which led to a grant of ILR and subsequently naturalisation. Upon reasonably reaching such conclusion as to the facts, the respondent's ultimate conclusion as to the condition precedent to depriving the appellant of citizenship is not vitiated by an error of law

 

93.          I observe that the respondent may deprive an individual of their citizenship; she is not required by the 1981 Act to do so. I therefore proceed to consider the respondent's consideration of her discretion, at para. 35 of her decision, where she concluded that deprivation was a balanced and proportionate step to take in the circumstances arising. The starting point is to be undertaken in accordance with Lord Reed's judgment in Begum. The consideration is whether when deciding deprivation was the proper course, the respondent materially erred in law.

 

94.          The respondent gave lawful and cogent reasons for concluding that the appellant has perpetrated a deliberate fraud against the domestic immigration system by using a false identity and fabricating a false asylum claim. On the established evidence, the respondent could reasonably conclude that the appellant deliberately concealed his Albanian nationality and his true identity to take advantage of the situation arising in Kosovo to obtain refugee status to which he was not entitled, with its attendant benefits. The respondent could reasonably conclude that the use of fraud was clearly material to the securing of British citizenship, and if the true facts had been known the respondent would not have considered the appellant to be a person of good character in respect of the naturalisation application. I observe, consequent to the date of birth entered on the appellant's Albanian birth certificate, that he was an adult when he first sought asylum and commenced his fraudulent actions in his dealings with the respondent. In such circumstances, the appellant has benefitted from his fraud for over two decades. I am satisfied that the respondent did not materially err in law when exercising her discretion and concluding that on the facts arising deprivation was a balanced and proportionate step to take.

 

95.          Ms Ferguson accepted by her skeleton argument, dated 13 March 2023, and confirmed at the hearing that if the condition precedent is met in this matter the decision to deprive is unlikely to be in breach of article 8 rights nor disproportionate. It was accepted that the limbo period between deprivation and a decision whether to grant status/remove would only be a matter of weeks, and a human rights appeal would flow from a decision to remove.

 

96.          The respondent confirmed in her decision letter that she expects to make the deprivation order within four weeks of appeal rights being exhausted, and a further decision being issued within eight weeks thereafter, subject to any further representations being made on behalf of the appellant. The appellant, and the Upper Tribunal, can properly expect the respondent to abide by her identified timeframe.

97.          I observe Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 128 (IAC), at [110]. There is a heavy weight to be placed upon the public interest in maintaining the integrity of the system by which foreign nationals are naturalised. It is a consequence of the appellant's own actions that deprivation will cause disruption in his day-to-day life whilst the respondent considers whether to grant him leave to remain or direct his removal. Without more, such disruption cannot tip the proportionality balance in favour of his retaining the benefits of citizenship that he has fraudulently secured.

 

98.          Additionally, the loss of immigration status does not of itself render deprivation disproportionate.

 

99.          The short timeframe identified, during which the appellant will be required to await a decision, cannot properly be considered to give rise to a disproportionate interference with the appellant's article 8 rights. Whilst the appellant may be required to cease employment during this period, he is silent as to whether he has savings to rely upon, or whether others may provide support, during the proposed three-month period.

 

100.      For the reasons detailed above, the appeal is dismissed.

 

J.               Notice of Decision

 

101.      By means of a decision sent to the parties on 15 November 2022 this Tribunal set aside the decision of the First-tier Tribunal promulgated on 1 February 2022 pursuant to section 12(2)(a) of the Tribunal, Courts and Enforcement Act 2007.

 

102.      The decision is re-made, and the appellant's appeal is dismissed.

 

 

D O'Callaghan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

6 November 2023