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Upper Tribunal provides guidance on correct approach in deprivation of citizenship appeals


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The Upper Tribunal has given guidance on the correct approach in deprivation appeals. The headnote to this case, Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 00115 (IAC), says:

  1. A tribunal determining an appeal against a decision taken by the respondent under section 40(2) or section 40(3) of the British Nationality Act 1981 should consider the following questions:
    1. Did the Secretary of State materially err in law when she decided that the condition precedent in section 40(2) or section 40(3) of the British Nationality Act 1981 was satisfied? If so, the appeal falls to be allowed. If not,
    2. Did the Secretary of State materially err in law when she decided to exercise her discretion to deprive the appellant of British citizenship? If so, the appeal falls to be allowed. If not,
    3. Weighing the lawfully determined deprivation decision against the reasonably foreseeable consequences for the appellant, is the decision unlawful under section 6 of the Human Rights Act 1998? If so, the appeal falls to be allowed on human rights grounds. If not, the appeal falls to be dismissed.
  2. In considering questions (1)(a) and (b), the tribunal must only consider evidence which was before the Secretary of State or which is otherwise relevant to establishing a pleaded error of law in the decision under challenge. Insofar as Berdica [2022] UKUT 276 (IAC) suggests otherwise, it should not be followed.
  3. In considering question (c), the tribunal may consider evidence which was not before the secretary of state but, in doing so, it may not revisit the conclusions it reached in respect of questions (a) and (b).


Ms Chimi was born in September 1977 in Cameroon. In 2000 she moved to France and formed a relationship. In 2006, with the help of her partner, she applied for French nationality. They submitted her Cameroonian birth certificate and she was issued with a copy of a French birth certificate. Then, she applied for and received a French passport.

She decided to relocate to the UK in 2007 after her relationship ended. She met her husband, and in 2009 they had a child. Ms Chimi was naturalised as a British citizen in September 2016. But in July 2019, she encountered difficulties when applying to renew her French passport.

In September 2019 the Secretary of State was provided with information from the French authorities revealing that her French passport had been obtained on the basis of a false birth certificate. Ms Chimi wrote to the Secretary of State in October 2019 explaining that she had been helped and advised and had acted under the guidance of her partner throughout the process. She had no reason to suppose the passport was not valid.

In March 2020 the Secretary of State issued her with a notice of a decision to deprive her of her British citizenship under section 40(3) of the British Nationality Act 1981. Her French passport had been granted as a consequence of fraud in the form of a counterfeit French birth certificate, and as her EEA residence permit had been granted on the basis of her being a French national this was a status that she was not entitled to.

The law

Condition precedent

Where a decision is taken under section 40(2), “the Secretary of State [must be] satisfied that deprivation is conducive to the public good”. In a section 40(3) case, “the Secretary of State [must be] satisfied that registration or naturalisation was obtained by means of fraud, etc”.

Ms Chimi argued that there were potential qualitative differences between section 40(3) and 40(2). However, the similar structure and closely allied language in the sections leave the exercise of discretion with the Secretary of State. Nothing in the nature of decisions made under section 40(3) renders them unsuitable for scrutiny applying a public law error approach and the tribunal should review either conclusion rather than subject it to a full merits reconsideration.


The language used in these sections makes it clear that deprivation is not an automatic consequence of deception in the acquisition of that nationality. Nor is it an automatic consequence where deprivation is conducive to the public good. In either case, the Secretary of State may deprive the individual of their citizenship.

In the tribunal’s judgment, it must undertake its consideration of that discretionary decision in the following way. First, it is only necessary to consider the issue of discretion in a case which the Tribunal has resolved that the Secretary of State has not erred in law in making her decision that she was satisfied by the conditions in section 40(2) or 40(3).

The tribunal must then consider whether the Secretary of State erred in law when deciding in the exercise of her discretion under section 40(2) or 40(3) to deprive the individual of citizenship. It is not for the tribunal to decide whether, on the merits of the case, deprivation is the correct course. Only whether in deciding to deprive someone of their citizenship, the Secretary of State materially erred in law.

Finally, the tribunal should consider the question of the Secretary of State’s discretion before it comes to assess any submissions made in reliance on article 8 of the European Court of Human Rights. The tribunal added a headnote to its judgment to confirm its suggested structure, which we have quoted above.


The final question is what, if any, material which was not before the Secretary of State at the time the decision was reached could be taken as admissible now. The evidence to be considered is not limited to that before the Secretary of State at the time of her decision. But the evidence must be strictly relevant and admissible only because it directly pertains to an error of law which Ms Chimi has specifically pleased. The principles are identical to those which apply in judicial review (so further guidance might be found at paragraph 23.3.3 of the Administrative Court Guide 2022 and 16-081 of De Smith’s Judicial Review, Eighth Edition).

The decision

So was there any error of law in the conclusion reached by the Secretary of State that Ms Chimi had obtained her British citizenship on the basis of fraud?

The Secretary of State said that there were significant credibility issues in relation to the account of how Ms Chimi came to be in possession of a French birth certificate, given that she was born in Cameroon. The suggestion that the French authorities would have swapped her Cameroon birth certificate for a French one was wholly lacking credibility.

The tribunal was satisfied that there was no error of law in the Secretary of State’s decision that Ms Chimi had obtained British citizenship by fraud. Ms Chimi had declared herself to be a French citizen throughout and the truthfulness of this assertion was not to be determined by her holding a French passport but by her underlying entitlement to citizenship. Discretion to make its decision was open to the Secretary of State in light of the “strong public interest in maintaining the integrity of the nationality system established by Parliament”.

This case provides a useful summary of the case law in relation to deprivation of citizenship in a number of scenarios, as well as the suggested structure of how appeals of this nature might be considered by the tribunal.

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