Introduction
There is a right of appeal to the First-tier Tribunal ('FTT') when a person is deprived of British citizenship on grounds of it being acquired by means of fraud (s.40(3) of the British Nationality Act 1981 ('1981 Act') (the Secretary of State may deprive where satisfied citizenship was obtained by fraud, false representation, or concealment of a material fact; s. 40A a right of appeal to the FTT where given notice of a decision). But what are the correct tests to apply on appeal? In the case of Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, the Court of Appeal settles this issue. In so doing, it reveals a pool of fact-finding tribunal appellate jurisdiction within which the question of whether there has been fraud, etc., may be considered, while preserving the public law approach to the other aspects of the deprivation decision.
The acquisition and deprivation of British citizenship
Although Mr Chaudhry had made his successful application for naturalisation as a British citizen in his own name, the Secretary of State discovered thereafter that previously he had obtained a UK passport using the details of a deceased child (in order to obtain a driving licence). That being so, she considered he had obtained his British citizenship by means of a false representation when he answered no to the naturalisation application form question "have you engaged in any other activities which might indicate that you may not be considered a person of good character". That being so, she decided to deprive him of citizenship. Mr Chaudry denied using the passport to obtain a driving licence.
On Appeal to the Immigration Tribunals
The FTT allowed Mr Chaudhry's appeal against citizenship deprivation, stating that it needed to apply a Wednesbury (irrationality/unreasonableness) test, a public law question, to the task of whether the deprivation decision was exercised correctly. It found error on the basis that the Secretary of State had failed to discharge the burden of proof resting on her to establish the fraud (a prior question as to whether there was fraud, etc.), the standard of proof being the balance of probabilities/more likely than not. No decision was made on compliance with Article 8 ECHR (right to respect for private life) under the Human Rights Act 1998.
The Secretary of State appealed to the Upper Tribunal ('UT') contending among other things that, impermissibly, the FTT had considered the fraud issue for itself when referring to 'burden of proof'. The UT applied the approach in Ciceri (deprivation of citizenship appeals: principles) v Secretary of State for the Home Department [2021] UKUT 238 (IAC), UT ('Ciceri') (the question of fraud is a condition precedent but the Secretary of State's decision is to be tested on public law principles) and, thereafter, in remaking the appeal decision, the approach in Chimi v Secretary of State for the Home Department (deprivation appeals: scope and evidence) [2023] UKUT 115 (IAC), UT ('Chimi'), a case concerning s. 40(2) of the 1981 Act (deprivation of citizenship may occur where the Secretary of State is satisfied that deprivation is 'conducive to the public good') that held that only evidence before the Secretary of State was to be considered on the public law question (but human rights questions might require consideration of other evidence). Thus, for the UT the correct approach was a public law review only of all issues arising for determination. Applying that approach, the it held that the Secretary of State's decision was lawful and that there was no infringement of Article 8 ECHR.
Before the Court of Appeal
Mr Chaudhry appealed to the Court of Appeal on the basis that the FTT not the UT had applied the correct test to the question of fraud (i.e., that it was not merely a public law review but involved fact-finding on the fraud issue). At that point, the Secretary of State changed her stance on how fraud was to be considered on appeal and concluded that the correct approach in a s.40(3) appeal raised three questions:
(i) whether, as a matter of past fact, there has been fraud, false representation, or concealment of a material fact. The tribunal has a fact-finding function in that respect (NB this is the Secretary of State's new stance);
(ii) If such fraud, etc., is established, whether citizenship was obtained by means of that fraud. Under s.40(3), it is the Secretary of State who needs to be satisfied as to that matter. Therefore, her conclusion in that respect is subject to challenge on public law grounds only; and
(iii) whether the discretion to deprive should be exercised. The Secretary of State's decision in that respect is also challengeable only on public law grounds.
Mr Chaudry agreed with (i) and (iii) but continued to challenge the correctness of (ii).
The Secretary of State's altered position arose in the context of her submission that in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7, [2021] AC 765 (Begum (No.1) Lord Reed (in paragraphs 68 and 69; [NB see also paragraph 71 for material context]) had contemplated different principles applying depending on the nature of the decision under appeal, and that the FTT should decide for itself on the factual questions of fraud, false representation or concealment of a material fact.
The Judgment of the Court of Appeal
The now-common approach of the parties as to issue (i) did not resolve that issue but was a starting point. Rightly, the Court observed it needed to decide the issue to its own satisfaction. In its principal judgment, Lord Justice Dingemans closely examined the applicable statutory provisions in ss. 40(3) and 40A of the 1981 Act. He concluded that, where there was a factual dispute, it was for the FTT to find for itself whether there was fraud, false representation, or concealment of a material fact. The question concerned a statutory precondition for the exercise of the power and the FTT had institutional competence to decide the issue.
Further, His Lordship considered that while the Secretary of State might make reasonable judgments on the materials available at the time of the decision, these might later be shown to be wrong by further evidence adduced and tested before the FTT. He held that Begum (No 1) did not prevent such a conclusion. Finally, he agreed that it was for the Secretary of State to prove on the balance of probabilities that there was fraud, false representation, or concealment of a material fact. In substance, he agreed with the parties on issue (i).
On issue (ii), His Lordship agreed with the Secretary of State: whether the registration or naturalisation (so as to acquire British citizenship) was obtained by impermissible means, is a decision of the Secretary of State to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in Begum (No.1) (at paragraph 71). This was so, he said, as the decision on causation is a matter critically dependent on the Secretary of State's previous decision-making about which she is in a better position than the FTT to make the primary evaluation (NB this may not be the last word on this issue).
On issue (iii) His Lordship agreed with the parties: the exercise of the Secretary of State's discretion to make an order is to be reviewed on appeal by the FTT on public law grounds in accordance with the principles referred to by Lord Reed in Begum (No.1) (at paragraph 71).
As to human rights considerations, His Lordship held that was for the FTT to consider whether the Secretary of State had acted in breach of them; and that was something that might involve the consideration of relevant evidence. 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.
For these reasons, he considered that the tests in Ciceri and Chimi needed to be reformulated on the basis that an appellant will be able to adduce evidence on both the precedent facts of fraud, false representation and concealment of a material fact, and on matters relevant to the question of whether the Secretary of State has acted incompatibly with human rights requirements. His Lordship considered that the evidence can be adduced and examined in one go and it will be for the FTT to apply the relevant evidence to the separate legal tests.
In applying this test to the facts, Lord Justice Dingemans found that the FTT had erred in failing to consider aspects of the Secretary of State's case. The FTT reasoning was inadequate and the case would be returned there. The UT decision was set aside as it had applied the incorrect legal test. Lord Justice Edis and Lord Justice Underhill agreed.