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


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025000888 [2025] UKAITUR UI2025000888 (2 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000888.html
Cite as: [2025] UKAITUR UI2025000888

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-000888

First-tier Tribunal No: DC/50114/2023

LD/00034/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 2 nd of May 2025

 

Before

 

UPPER TRIBUNAL JUDGE HIRST

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

 

Between

 

KETHAN ADARSH

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Bayati of counsel, instructed by Amirthan & Suresh Solicitors

For the Respondent: Ms Ahmed, Senior Home Office Presenting Officer

 

Heard at Field House on 24 April 2025

 

 

DECISION AND REASONS

 

1.              The Appellant appeals from the decision of the First-tier Tribunal dated 18 November 2024 dismissing his appeal against the Respondent's decision to deprive him of his British citizenship under s40(3) British Nationality Act 1981 ('BNA 1981'). Permission to appeal was granted on 21 February 2025 by the First-tier Tribunal.

2.              The appeal came before us at an error of law hearing on 24 April 2025. At the hearing, Ms Ahmed conceded on behalf of the Respondent that there was a material error of law in the First-tier Tribunal's decision in light of the subsequent decision of the Court of Appeal in Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, [2025] 2 WLR 696. Ms Ahmed made it clear that none of the other grounds of appeal was conceded by the Respondent.

3.              In Chaudhry, the Court of Appeal clarified (ยง46-52) the approach to be taken by the First-tier Tribunal to an appeal against a deprivation of citizenship under s40(3) BNA 1981 as follows:

    1. First, in cases where it is disputed, the First-tier Tribunal is required to find as a fact whether there has been fraud, false representation or concealment of a material fact, which is the statutory precondition for the making of a deprivation order under s40(3) ('the precedent fact issue');
    2. Second, if the statutory precondition is met, the First-tier Tribunal is required to review on public law grounds whether the citizenship was obtained by the impermissible means ('the causation issue');
    3. Third, the First-tier Tribunal is required to review on public law grounds the Secretary of State's exercise of her discretion to make an order ('the discretion issue');
    4. Lastly, the First-tier Tribunal must consider whether the Secretary of State has acted in breach of other relevant legal obligations, including s6 Human Rights Act 1998. The First-tier Tribunal is required to resolve that question for itself whilst giving due weight to the findings, evaluations and policies of the Secretary of State.

4.              The primary effect of Chaudhry, so far as relevant to this appeal, is that in a s40(3) BNA 1981 deprivation appeal the First-tier Tribunal is no longer considering the precedent fact issue on public law grounds, as previously indicated by authorities including Ciceri v SSHD [2021] Imm AR 1909 and Chimi v SSHD [2023] Imm AR 1071. Instead, the First-tier Tribunal is required to determine, as a question of fact, whether the precedent condition is satisfied. In determining that question, the burden of proof is on the Secretary of State and the standard of proof is the balance of probabilities.

5.              In this case, which has a complex factual history, it is apparent from the Appellant's skeleton argument for the appeal and the First-tier Tribunal decision itself that the precedent fact issue was disputed. It is also clear from the decision of the First-tier Tribunal that it reviewed the precedent fact issue on public law grounds. We make it clear that no criticism attaches to the First-tier Tribunal panel, which applied the law as it was understood to be at the time of the decision. However, that approach has now been shown by the Court of Appeal's subsequent decision in Chaudhry to be in error. We therefore agree with the parties that there was a material error of law in the decision of the First-tier Tribunal and set the decision aside. We make it clear that we have not considered or determined the other grounds of appeal.

6.              The parties were agreed that given the nature of the error, the appropriate disposal was to remit the case to the First-tier Tribunal for rehearing. Although Ms Ahmed for the Respondent submitted that the First-tier Tribunal's finding that the Secretary of State's exercise of discretion had been lawful could be preserved on remittal, we decline to do so. The First-tier Tribunal's review on public law grounds of whether the discretionary power in s40(3) BNA 1981 has been exercised lawfully and reasonably is necessarily sensitive to the facts as found in the individual case. We therefore do not consider that the previous conclusion on the discretion issue, which was reached without the required fact-finding, should be preserved.

7.              We therefore remit the case to the First-tier Tribunal for a de novo hearing with no findings preserved. The case does not require a differently constituted tribunal.

Notice of Decision

 

The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.

The appeal is remitted to the First-tier Tribunal for a de novo hearing with no findings preserved.

 

 

 

L Hirst

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

28 April 2025

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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