Chaudhry v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns the deprivation of British citizenship under section 40(3) of the British Nationality Act 1981 (BNA 1981). The Appellant, a national of Pakistan, was deprived of citizenship by the Secretary of State on the basis that he had fraudulently obtained a British passport using the identifying particulars of a deceased child. The Appellant initially arrived in the UK in 1990, claimed asylum unsuccessfully, and was eventually naturalised in 2005 after multiple applications.

Subsequently, information emerged that the Appellant had obtained a false British passport in 1998 under another identity. The Secretary of State relied on this to deprive the Appellant of citizenship in December 2021. The Appellant appealed to the First-tier Tribunal (FTT), which allowed the appeal in January 2023, finding public law errors in the Secretary of State’s decision and that the burden of proof had not been discharged.

The Secretary of State appealed to the Upper Tribunal (UT), which set aside the FTT decision in September 2023 and remade the decision, applying a public law review approach and holding the deprivation lawful. The Appellant then appealed to the Court of Appeal, challenging the UT’s approach to the scope of appeal and the test to be applied by the FTT on appeals under section 40(3) of the BNA 1981.

Legal Issues Presented

1. What is the proper approach to appeals under section 40A of the BNA 1981 from decisions of the Secretary of State made pursuant to section 40(3) of the BNA 1981?
2. Whether the decision of the FTT allowing the Appellant's appeal against the Secretary of State's deprivation decision should be restored?
3. If not restored, whether the matter should be remitted to the FTT to rehear the appeal?

Arguments of the Parties

Appellant's Arguments

• The FTT correctly held that it has a fact-finding function on appeals under section 40(3) of the BNA 1981, including determining whether there was fraud, false representation, or concealment of a material fact.
• The UT erred in law by treating the appeal as a public law review rather than a merits-based appeal.
• The Secretary of State’s changing submissions on the test to be applied undermined the UT’s approach.
• The FTT’s decision to allow the appeal should be restored as the Secretary of State failed to identify errors in the FTT’s fact-finding.
• Alternatively, the appeal should be remitted to the FTT to apply the correct test.

Secretary of State's Arguments

• The Supreme Court judgment in Begum (No.1) did not definitively rule on appeals under section 40(3) of the BNA 1981, and different statutory provisions may require different approaches.
• The FTT should determine the factual question of fraud, false representation, or concealment, but the causation issue and discretion to deprive are subject to public law review.
• The UT applied the correct public law review approach and was right to set aside the FTT decision.
• Given the FTT made irrational findings of fact, the appeal should be allowed and remitted to the UT for re-decision rather than restored to the FTT.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory framework of section 40(3) and 40A of the BNA 1981, focusing on the Secretary of State’s discretion to deprive citizenship if satisfied that naturalisation was obtained by fraud, false representation, or concealment of a material fact. It was common ground that such conduct must be dishonest.

The court held that the First-tier Tribunal (FTT) has a fact-finding role to determine, in the event of dispute, whether fraud, false representation, or concealment of a material fact occurred. This is because establishing such conduct is a statutory precondition for deprivation.

The court reasoned that it would be inappropriate for the FTT to be bound by the Secretary of State’s factual findings, particularly where new evidence arises. The Supreme Court’s judgment in Begum (No.1), which concerned section 40(2), does not preclude this fact-finding role under section 40(3).

Regarding the causation issue—whether the registration or naturalisation was obtained by the impermissible means—the court accepted that this remains a matter for the Secretary of State, subject to public law review by the FTT. Similarly, the discretion to deprive citizenship is exercised by the Secretary of State and reviewable on public law grounds.

The FTT must also consider whether the Secretary of State acted in breach of other legal obligations, including under section 6 of the Human Rights Act 1998, giving due weight to the Secretary of State’s findings but making its own assessment.

The court found that the UT applied the wrong test by treating the appeal as a public law review only, and that the FTT’s fact-finding role should be restored. However, the FTT’s original findings were inadequately reasoned, failing to address uncontroverted facts such as the use of the Appellant’s address in a driving licence application linked to the false passport.

Accordingly, the court set aside the UT decision and remitted the matter to the FTT for rehearing before a different judge to properly apply the clarified test and consider the evidence afresh.

Holding and Implications

The court held that:

• The proper approach on appeals under section 40A of the BNA 1981 from decisions made pursuant to section 40(3) is: (i) the FTT must find as a fact whether fraud, false representation, or concealment of a material fact occurred; (ii) the Secretary of State’s decision on causation is subject to public law review by the FTT; (iii) the Secretary of State’s discretion to deprive citizenship is also subject to public law review; and (iv) the FTT must consider whether the Secretary of State breached other legal obligations including human rights.
• There was an error in the FTT’s decision allowing the Appellant’s appeal due to inadequate reasoning on key factual issues.
• The appeal is allowed in part, the UT decision is set aside, and the matter is remitted to the FTT for rehearing with the clarified test to be applied by a different judge.

The decision directly affects the parties by requiring a fresh hearing of the appeal applying the correct legal test. No new binding precedent beyond the clarification of the test for appeals under section 40(3) of the BNA 1981 is established.