The Court of Appeal has upheld a decision made the Home Secretary to deprive a person of their British citizenship on the basis that it was obtained by dishonest concealment of a material fact. Namely, that the appellant did not disclose what appeared to be an ongoing relationship between he and his wife in Pakistan at the time he obtained leave based on his relationship with an EEA national. The case is Ahmed v Secretary of State for the Home Department [2023] EWCA Civ 1087.

Background

The appellant came to the UK as a student in March 2006. In December 2006 he started a relationship with a Polish national, Ms Lebkowska. A divorce deed was signed by his wife, Ms Sbuhi, in Pakistan in October 2008. On 28 May 2009 he applied for a residence card on the basis of his durable relationship with Ms Lebkowska and this was granted on 27 July 2010.

He travelled to Pakistan in January 2011 and during this time he impregnated Ms Sbuhi who gave birth to their fourth child in September 2011.

On 21 July 2015 he applied for permanent residence, stating on the application that he had divorced Ms Sbuhi on 14 October 2008. He did not mention the birth of his fourth child.

The EEA application was refused on the basis that Ms Lebkowska was not registered with the Worker Registration Scheme and the appellant appealed to the First-tier Tribunal. He and Ms Lebkowska had separated before the appeal but this was allowed on the basis that the appellant had already acquired permanent residence before the relationship broke down, as Ms Lebkowska had been a qualified person for over seven years. The appellant was issued with a permanent residence card on 12 July 2017.

In August 2017 the appellant returned to Pakistan and reconciled with his former wife before returning to the UK.

The appellant applied for British citizenship on 30 July 2018 and this was granted on 20 August 2018.

On 17 December 2018 the appellant applied for entry clearance for Ms Sbuhi and their four children to join him in the UK. The application made no reference to the divorce deed or to his previous relationship with Ms Lebkowska.

The deprivation decision and subsequent appeals

On 29 November 2019 the Home Secretary made a decision to deprive him of his British citizenship under section 40(3) of the British Nationality Act 1981. This allows for deprivation of citizenship resulting from naturalisation if the Home Secretary is satisfied that it was obtained by fraud, false representation of concealment of a material fact.

The appellant appealed to the First-tier Tribunal and this was dismissed on 9 March 2020. On 20 April 2021 the Upper Tribunal (IAC) set that decision aside as the FtT judge had not addressed what the appellant had known about the divorce deed and there had been some misdirections on evidential burdens and the standard of proof.

The UT retained and then dismissed the appeal, concluding that the Home Secretary would have refused the appellant’s application for naturalisation had she known about his dishonest conduct.

The issues decided by the Court of Appeal

The grounds of appeal were that:

• the judge misapplied the country information in holding that Ms Sbuhi would not have initiated a “one-night stand” with Mr Ahmed in 2011;
• the judge erred in law in proceeding on the basis that Mr Ahmed’s EEA applications would have been refused if he had disclosed to the Secretary of State the true nature of his relationship with Ms Sbuhi;
• the judge erred in law in holding that Mr Ahmed’s citizenship was obtained by the concealment of a material fact without considering whether that concealment was dishonest.

In respect of the the first ground of appeal, the court noted that the main reason for the judge’s adverse findings was the inconsistencies in the witness evidence about when and why Ms Shubi had moved out of the family home. Only part of that reason was related to the use of country guidance cases and so the Court of Appeal held that even if the judge had made an error about those decisions, it would not have been a basis for overturning those findings of fact.

For the second ground of appeal, submissions were advanced that a person could be in a genuine and durable relationship with two people at once. However the fact that the divorce deed had been submitted as part of the EEA application made clear that the need to show that a previous relationship had permanently broken down was known. This ground was also dismissed.

The third ground appears to have been advanced because the UT judge did not expressly state that the concealment of a material fact was also dishonest. This was dismissed as it was “plain that the judge’s findings of fact amounted to a finding of dishonesty on the part of Mr Ahmed, so that there was a dishonest concealment of a material fact in accordance with the objective test set out in Ivey v Genting” [56].

Begum point not considered

A separate point was raised in the Respondent’s Notice where the Home Secretary said that the appeal should be dismissed as the appeal in the UT “should have been considered in accordance with the principles set out in R (Begum) which required a public law error by the Secretary of State, which could not be shown”. The UT had adopted the pre-Begum approach, finding that the single question of fact to be determined was the nature of the appellant’s relationship with his wife Ms Sbuhi.

The Court of Appeal held that there was no need to address this point as the appellant had been unsuccessful in all three grounds of his appeal. The court also said that the Upper Tribunal is addressing the implications of the Begum decision in relation to the approach to be taken in deprivation appeals and they referred to the case of Chimi. If its input was needed, the court said that this should be done in a case where the point would be relevant to the outcome, which was not the case here.

Conclusion

The most surprising thing about this case is that it made it to the Court of Appeal. Deprivation decisions have been on the rise for a while now and the Home Secretary continues to make it clear that these powers will be used. Anyone seeking to circumvent the rules can expect a similar outcome to this case.