New Court of Appeal guidance on the correct test to be applied to s.40(3) deprivation of citizenship appeals

In Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, the Court of Appeal has confirmed the correct test to be applied in appeals against decisions of the Secretary of State to deprive a person of citizenship pursuant to section 40(3) of the British Nationality Act 1981 (where citizenship was obtained by means of fraud, false representation or concealment of material facts).

Background

The fact pattern in Chaudhry is rather unusual in the context of deprivation decisions under section 40(3), where often it is accepted that there has been fraud, false representation or concealment of a material fact, and that registration or naturalisation was obtained by those means.

Mr. Chaudhry is a national of Pakistan, born in 1963. He arrived in the UK in 1990. After an unsuccessful claim for asylum, he was granted indefinite leave to remain in 2000. He then made two applications to naturalise, both of which were unsuccessful.

As part of his third application (which succeeded) he confirmed that he had not engaged in any activities which might be relevant to the question of whether he was a person of good character. A person is required to be of good character in order to naturalise as a British citizen (as set out in Schedule 1 of the British Nationality Act 1981).

In 2017, Mr. Chaudhry was interviewed in connection to allegations that he had fraudulently obtained a genuine British passport in 1998. The Home Secretary alleged that he had obtained the British passport using the identifying information of a deceased child born in 1967 (prior to having obtained his indefinite leave to remain and citizenship thereafter in his correct identity). Mr. Chaudhry denied any involvement in obtaining a false passport.

The Home Secretary made a decision to deprive Mr. Chaudhry of his British citizenship on the basis that he had obtained citizenship by false representation, pursuant to section 40(3) of the Act.

Mr. Chaudhry was successful in his appeal to the First Tier Tribunal. The Upper Tribunal however set this decision aside. The Upper Tribunal adopted the approach set out in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 and Chimi (deprivation appeals, scope and evidence) [2023] UKUT 00115, both of which endorsed the test set out in R (Begum) v Secretary of State for the Home Department [2021] UKSC 7 (also known as Begum (No. 1)).

Mr. Chaudhry appealed to the Court of Appeal.

Issues on appeal

The main issue for determination was the correct approach to appeals against section 40(3) decisions. A section 40(3) decision has three limbs:

1. Whether there was fraud, false representation or concealment of a material fact.
2. Whether that person’s registration or naturalisation was obtained by means of fraud, false representation or concealment of a material fact.
3. The exercise of discretion by the Secretary of State.

There was considerable shifting in the position adopted by the Home Secretary, at every stage up to and including the Court of Appeal. By the time of the hearing before the Lord Justices, however, it was common ground that the first limb of the test under section 40(3) required a First-tier Tribunal to find as fact whether there was fraud, false representation, or concealment of a material fact in the particular case.

The parties were also in agreement that the discretion under the third limb was to be exercised by the Home Secretary in accordance with the statutory language and was reviewable on public law grounds.

There was a dispute however in respect of the second limb (also termed the ‘causation issue’): whether this issue was a matter for the Home Secretary to determine and so reviewable on public law grounds, or whether it was a matter for the First-tier Tribunal to find as a matter of fact.

The Court of Appeal’s decision

The key discussion of the correct approach to section 40(3) appeals is found at paragraphs 34 – 54 of the judgment (note: there appears to be an unfortunate typographical error at paragraph 37, where the reference to s.40(2) ought to refer instead to s.40(3)). Bearing in mind the extensive review of previous case law (paragraphs 24 – 33), the court’s key reasoning at paragraphs 46 to 53 on all three issues is surprisingly brief and draws on basic principles rather than prior decision-making.

In respect of the first and third limbs, the Court of Appeal endorsed the approach as had been agreed between the parties.

As to the contentious second limb, the court held that the tribunal should review the Home Secretary’s decision (i.e. whether the registration or naturalisation was obtained by the impermissible means) on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1). In reaching this conclusion, the court reasoned that the decision on causation is ‘a matter critically dependent on the Home Secretary’s previous decision making’ and the Home Secretary is best placed to make this assessment.

The Court of Appeal’s conclusions as to the correct test are set out at paragraph 54 and repeated at paragraph 58:

(i) it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981;

(ii) the decision of the Secretary of State on the causation issue whether the registration or naturalisation was obtained by the impermissible means is to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1);

(iii) the exercise of the Secretary of State’s discretion to make an order depriving a person of citizenship status is to be reviewed on appeal by the FTT on public law grounds in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); and

(iv) it is for the FTT to consider whether the Secretary of State had acted in breach of other relevant legal obligations, including those arising under section 6 of the Human Rights Act. Although due weight would need to be given to the findings, evaluations and policies of the Secretary of State, the decision was for the FTT.

The Upper Tribunal’s decision was set aside because it had not applied the correct test but the court said that the Upper Tribunal had been correct to set aside the First-tier Tribunal’s decision. Mr Chaudhry’s appeal was remitted to the First-tier Tribunal to be reheard.

Comment

The Chaudhry judgment provides clarity, for the time being, regarding the test to be applied in section 40(3) deprivation appeals. The Secretary of State’s discretion is broad, and the scope of review remains limited for appellants on the key issues of causation and discretion.  

This decision is unlikely to be the final word, however, given the proliferation of case law on deprivation of citizenship in recent years. The Supreme Court’s decision in U3 (AP) v Secretary of State for the Home Department UKSC/2023/0145 is awaited, and whilst U3 is a section 40(2) case, the Supreme Court may well provide further commentary regarding the scope of review in deprivation appeals generally.