Can a judge ignore part of a Home Office decision if their representative doesn’t mention it in court? No, said the Court of Appeal in Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770.

The case

The appellant, Mr Shyti, was challenging a decision to deprive him of his British citizenship. (See here for the background to this increasingly used power.) Mr Shyti’s decision was made under section 40(3) of the British Nationality Act on the basis that he had obtained naturalisation by means of fraud.

Mr Shyti was originally Albanian, but claimed asylum saying he was from Kosovo. That lie was repeated to the Home Office several times. He was refused asylum but eventually got indefinite leave to remain under the Legacy programme. He then applied for naturalisation as a British citizen, again giving a false nationality. Significantly, he was asked whether he had ever done anything to suggest that he was not of good character, and ticked the ‘no’ box. His application was successful.

When the truth was later discovered, Mr Shyti admitted deceiving the Home Office. He argued, however, that the deception wasn’t material to the grant of citizenship and so the legal requirements for deprivation weren’t met. The Home Office disagreed, saying that if his true nationality had been known he would have been refused citizenship on good character grounds. Their decision expressly relied on the lies in the naturalisation form, including the ticked box. Mr Shyti should have answered ‘yes’ and disclosed his past deception, it said.

Mr Shyti appealed to the First-tier Tribunal (Immigration and Asylum Chamber). He relied on Sleiman (deprivation of citizenship: conduct) [2017] UKUT 00367 (IAC). The appellant in that case had lied about his age, which led to a grant of leave as an unaccompanied minor. He was later granted indefinite leave under the Legacy programme, followed by citizenship. The Home Office argued the case on the basis that the indefinite leave – which was necessary for citizenship – had been obtained by fraud. The Upper Tribunal held that it wasn’t, because the Legacy grant was expressly based on the length of time his application had been outstanding, not on his age. Mr Shyti’s case was that the same applied to him.

At the hearing, the Home Office Presenting Officer (HOPO) seems to have done very little. He did not respond to the arguments made by Mr Shyti’s barrister, and did not say anything about the fraud in the citizenship application. The FTT didn’t address that point, but allowed the appeal based on Sleiman.

The Home Office appealed to the Upper Tribunal (Immigration and Asylum Chamber). One of their grounds was that the FTT had failed to consider the false statement in Mr Shyti’s citizenship application that he had never done anything to indicate he was not of good character. Mr Shyti argued that it was too late to raise this point now when the Presenting Officer hadn’t relied on it in the FTT. However, the UT concluded that the issue was clearly raised in the decision and that was enough. It allowed the appeal and remitted it to the FTT for a rehearing. It didn’t decide the Home Office’s other ground, which concerned the FTT’s approach to Sleiman.

Mr Shyti appealed to the Court of Appeal.

The Court of Appeal’s decision

The main issue for the Court of Appeal was whether the UT was right to say the FTT had to consider an issue that wasn’t mentioned at the hearing.

Lady Justice Elizabeth Laing, giving the leading judgment, said that the UT was indeed right. The FTT should have considered the deception in the citizenship application because it was relied on in the Home Office decision. Although the Presenting Officer didn’t refer to it, he didn’t withdraw the point either:

I have much sympathy for the F-tT, which was entitled to expect more help from the HOPO than it received. But it could only lawfully have narrowed its focus in this way if it was clear that the HOPO had instructions not to rely on the other points made in the Decision. It is common ground that no such concession was made.

The case was different, she said, from JK (Democratic Republic of Congo) v Secretary of State for the Home Department [2007] EWCA Civ 831. There, the sole issue had been credibility and the Presenting Officer had made a ‘forensic decision’ only to cross-examine on some of the adverse credibility points raised in the refusal. The Court of Appeal held the judge wasn’t obliged to consider the ones she hadn’t mentioned. By contrast, in Mr Shyti’s case, the citizenship application was one of several ‘different and independent reasons’ for the refusal, and the Presenting Officer had not done a ‘competent job’.

Elizabeth Laing LJ added that a proper understanding of the Home Office’s decision showed Sleiman wasn’t decisive. In Sleiman, the Home Office had focused on the Legacy grant and hadn’t suggested the truth would have led to a refusal of citizenship on character grounds. In Mr Shyti’s case, they had suggested that, so the FTT needed to address it.

Mr Shyti’s appeal was therefore dismissed.

Comment

It may seem odd that the Home Office can win an appeal despite accepting that their representative didn’t do his job properly. As the courts have said previously, an FTT hearing is not a ‘dress rehearsal’, but ‘the first and last night of the show’, and the HOPO might have saved a lot of time and public money if he had just made the oral argument that he should have done.

It is striking that the HOPO in question remains unnamed. This contrasts markedly with the more robust “name and shame” approach the courts typically adopt with claimant representatives.

Ultimately, however, this judgment underlines the central importance of written arguments in immigration appeals. Appellants and their representatives need to ensure that they consider everything in the papers, without relying on opponents to tell them what is relevant. Otherwise, they will be vulnerable to onward appeals.

Postscript: does Begum apply to fraud cases?

The Court of Appeal also touched on a separate issue about the correct way to deal with appeals based on fraud. The UT assumed that jurisdiction is limited to a public law review of the decision – in other words, it can only decide whether the Home Office’s decision was open to it, not whether it was right. This was based on the Supreme Court’s judgment in R (on the application of Begum) v Special Immigration Appeals Commission [2021] UKSC 7. It is the approach the UT has consistently taken in other cases.

Mr Shyti’s legal team questioned whether that was right, and suggested that in fraud cases the FTT should make its own findings on the evidence. Elizabeth Laing LJ appeared to see some merit in that argument. In the end, the Court reached no conclusion on the point as it wasn’t necessary to Mr Shyti’s appeal. However, the comments do indicate that the point is not settled. No doubt the Court of Appeal will have to determine it in due course.