The Upper Tribunal has affirmed the continuing obligation to disclose material facts in applications for naturalisation as a British citizen, including facts which arise after submitting the application. The case is Walile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC).

Offence committed while citizenship application pending

The facts in this case were particularly unpleasant. Mr Walile applied for naturalisation in January 2010. In March 2010, he raped a child. Shortly afterwards, he left the UK, returning on 3 May. He was issued a certificate of naturalisation the following day.

It is unclear from the judgment when Mr Walile was charged with the offence, but it was evidently after his citizenship application had been granted. In September 2016 he was sentenced to six years’ imprisonment following a guilty plea.

In November 2018, over seven years after the successful application for naturalisation, the Home Office decided to deprive Mr Walile of his British citizenship under section 40(3) of the British Nationality Act 1981. This empowers the Secretary of State to make a deprivation order if she is satisfied that naturalisation was obtained by “fraud, false representation or concealment of a material fact”.

The Secretary of State considered that Mr Walile had concealed a material fact by failing to inform her of the offence committed whilst his application was being considered. She argued that he ought to have known he was required to disclose the offence because he had signed the declaration on the application form promising to inform the Home Office of any change of circumstances. He had also confirmed that he had read Guide AN which at that time stated:

While the application is under consideration we expect you to tell us about anything which alters the information you have given us. This… includes police investigation or anything that may result in charges or indictment.

The appellant appealed, arguing among other things that the requirement to disclose the offence was contrary to the privilege against self-incrimination.

Self-incrimination and public law error

The Secretary of State relied on the Court of Appeal decision in L v C [2001] EWCA Civ 1509, which had found that:

The privilege [against self-incrimination] is against being “compelled” “on pain of punishment” to provide evidence or information. The privilege does not give rise to a defence in civil proceedings, nor give rise to a right not to plead a defence in civil proceedings.

In the event, the self-incrimination point was not pursued at the hearing. The Upper Tribunal agreed that “the privilege against self-incrimination simply does not arise in a case of this kind”.

The tribunal also refused permission to argue a new ground in light of the Supreme Court’s decision in Begum [2021] UKSC 7: that the deprivation decision contained a public law error. This argument arose from the guidance on Deprivation and nullity of British citizenship:

55.7.5 In general the Secretary of State will not deprive of British citizenship in the following circumstances:

• Where fraud postdates the application for British citizenship it will not be appropriate to pursue deprivation action…

However, where it is in the public interest to deprive despite the presence of these factors they will not prevent deprivation.

President Lane and Vice-President Ockelton found that there was, in any case, no public law error:

… significant weight needs to be afforded to the opening words “in general” in paragraph 55.7.5 and the closing words, concerning the public interest. In the present case, it is, in our view, obvious that the Secretary of State took the view that the immense gravity of the material fact which the appellant concealed from the respondent meant that there was a significant public interest in depriving the appellant of British citizenship.

The appeal was dismissed and the deprivation decision upheld.

Importance of disclosure

This decision confirms that applicants for naturalisation are required to disclose anything and everything that may cast doubt on their good character, not only at the time of making the application, but also whilst the application is being considered.

As Guide AN confirms, this includes disclosure of any offence “for which you may go to court” even if a criminal charge has not yet been brought. In such circumstances, the privilege against self-incrimination is not a defence for non-disclosure.

If such conduct is not disclosed and later comes to light, it is likely to result in deprivation of citizenship — even that might render the person stateless.  And following the Supreme Court’s decision in Begum, the grounds of appeal against a deprivation decision are narrow.