January 29, 2022

British citizenship can be taken away if criminal offending not disclosed

The Upper Tribunal has affirmed the continuing obligation to disclose material facts in applications for naturalisation as a British citizen, including facts which arise after submitting the application. The case is Walile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC).

Offence committed while citizenship application pending
The facts in this case were particularly unpleasant. Mr Walile applied for naturalisation in January 2010. In March 2010, he raped a child. Shortly afterwards, he left the UK, returning on 3 May. He was issued a certificate of naturalisation the following day.

It is unclear from the judgment when Mr Walile was charged with the offence, but it was evidently after his citizenship application had been granted. In September 2016 he was sentenced to six years’ imprisonment following a guilty plea.

In November 2018, over seven years after the successful application for naturalisation, the Home Office decided to deprive Mr Walile of his British citizenship under section 40(3) of the British Nationality Act 1981. This empowers the Secretary of State to make a deprivation order if she is satisfied that naturalisation was obtained by “fraud, false representation or concealment of a material fact”.

The Secretary of State considered that Mr Walile had concealed a material fact by failing to inform her of the offence committed whilst his application was being considered. She argued that he ought to have known he was required to disclose the offence because he had signed the declaration on the application form promising to inform the Home Office of any change of circumstances. He had also confirmed that he had read Guide AN which at that time stated:

While the application is under consideration we expect you to tell us about anything which alters the information you have given us. This… includes police investigation or anything that may result in charges or indictment.

The appellant appealed, arguing among other things that the requirement to disclose the offence was contrary to the privilege against self-incrimination.

Self-incrimination and public law error
The Secretary of State relied on the Court of Appeal decision in L v C [2001] EWCA Civ 1509, which had found that:

The privilege [against self-incrimination] is against being “compelled” “on pain of punishment” to provide evidence or information. The privilege does not give rise to a defence in civil proceedings, nor give rise to a right not to plead a defence in civil proceedings.

In the event, the self-incrimination point was not pursued at the hearing. The Upper Tribunal agreed that “the privilege against self-incrimination simply does not arise in a case of this kind”.

The tribunal also refused permission to argue a new ground in light of the Supreme Court’s decision in Begum [2021] UKSC 7: that the deprivation decision contained a public law error. This argument arose from the guidance on Deprivation and nullity of British citizenship:

55.7.5 In general the Secretary of State will not deprive of British citizenship in the following circumstances:

Where fraud postdates the application for British citizenship it will not be appropriate to pursue deprivation action…
However, where it is in the public interest to deprive despite the presence of these factors they will not prevent deprivation.

President Lane and Vice-President Ockelton found that there was, in any case, no public law error:

… significant weight needs to be afforded to the opening words “in general” in paragraph 55.7.5 and the closing words, concerning the public interest. In the present case, it is, in our view, obvious that the Secretary of State took the view that the immense gravity of the material fact which the appellant concealed from the respondent meant that there was a significant public interest in depriving the appellant of British citizenship.

The appeal was dismissed and the deprivation decision upheld.

The official headnote
(1) An applicant for British citizenship who commits a criminal offence before the application is decided by the Secretary of State cannot rely upon the privilege against self-incrimination as a reason for not informing the Secretary of State of the crime.

(2) The mere fact that a foreign criminal has children is not a reason to impose an anonymity order, preventing disclosure of the foreign criminal’s name in immigration proceedings in the First-tier Tribunal or the Upper Tribunal.

(3) Begum [2021] UKSC 7 authoritatively explained how the scope of an appeal against a decision under section 40(2) or (3) of the 1981 Act is narrower than the Upper Tribunal and the Court of Appeal previously thought; but it did not introduce the ability to bring an appeal based on public law grounds, which have always been available.

Importance of disclosure
This decision confirms that applicants for naturalisation are required to disclose anything and everything that may cast doubt on their good character, not only at the time of making the application, but also whilst the application is being considered.

As Guide AN confirms, this includes disclosure of any offence “for which you may go to court” even if a criminal charge has not yet been brought. In such circumstances, the privilege against self-incrimination is not a defence for non-disclosure.

If such conduct is not disclosed and later comes to light, it is likely to result in deprivation of citizenship — even that might render the person stateless. And following the Supreme Court’s decision in Begum, the grounds of appeal against a deprivation decision are narrow.

January 24, 2022

British citizenship can be taken away if criminal offending not disclosed

The Upper Tribunal has affirmed the continuing obligation to disclose material facts in applications for naturalisation as a British citizen, including facts which arise after submitting the application. The case is Walile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC).

Offence committed while citizenship application pending
The facts in this case were particularly unpleasant. Mr Walile applied for naturalisation in January 2010. In March 2010, he raped a child. Shortly afterwards, he left the UK, returning on 3 May. He was issued a certificate of naturalisation the following day.

It is unclear from the judgment when Mr Walile was charged with the offence, but it was evidently after his citizenship application had been granted. In September 2016 he was sentenced to six years’ imprisonment following a guilty plea.

In November 2018, over seven years after the successful application for naturalisation, the Home Office decided to deprive Mr Walile of his British citizenship under section 40(3) of the British Nationality Act 1981. This empowers the Secretary of State to make a deprivation order if she is satisfied that naturalisation was obtained by “fraud, false representation or concealment of a material fact”.

The Secretary of State considered that Mr Walile had concealed a material fact by failing to inform her of the offence committed whilst his application was being considered. She argued that he ought to have known he was required to disclose the offence because he had signed the declaration on the application form promising to inform the Home Office of any change of circumstances. He had also confirmed that he had read Guide AN which at that time stated:

While the application is under consideration we expect you to tell us about anything which alters the information you have given us. This… includes police investigation or anything that may result in charges or indictment.

The appellant appealed, arguing among other things that the requirement to disclose the offence was contrary to the privilege against self-incrimination.

Self-incrimination and public law error
The Secretary of State relied on the Court of Appeal decision in L v C [2001] EWCA Civ 1509, which had found that:

The privilege [against self-incrimination] is against being “compelled” “on pain of punishment” to provide evidence or information. The privilege does not give rise to a defence in civil proceedings, nor give rise to a right not to plead a defence in civil proceedings.

In the event, the self-incrimination point was not pursued at the hearing. The Upper Tribunal agreed that “the privilege against self-incrimination simply does not arise in a case of this kind”.

The tribunal also refused permission to argue a new ground in light of the Supreme Court’s decision in Begum [2021] UKSC 7: that the deprivation decision contained a public law error. This argument arose from the guidance on Deprivation and nullity of British citizenship:

55.7.5 In general the Secretary of State will not deprive of British citizenship in the following circumstances:

Where fraud postdates the application for British citizenship it will not be appropriate to pursue deprivation action…
However, where it is in the public interest to deprive despite the presence of these factors they will not prevent deprivation.

President Lane and Vice-President Ockelton found that there was, in any case, no public law error:

… significant weight needs to be afforded to the opening words “in general” in paragraph 55.7.5 and the closing words, concerning the public interest. In the present case, it is, in our view, obvious that the Secretary of State took the view that the immense gravity of the material fact which the appellant concealed from the respondent meant that there was a significant public interest in depriving the appellant of British citizenship.

The appeal was dismissed and the deprivation decision upheld.

The official headnote
(1) An applicant for British citizenship who commits a criminal offence before the application is decided by the Secretary of State cannot rely upon the privilege against self-incrimination as a reason for not informing the Secretary of State of the crime.

(2) The mere fact that a foreign criminal has children is not a reason to impose an anonymity order, preventing disclosure of the foreign criminal’s name in immigration proceedings in the First-tier Tribunal or the Upper Tribunal.

(3) Begum [2021] UKSC 7 authoritatively explained how the scope of an appeal against a decision under section 40(2) or (3) of the 1981 Act is narrower than the Upper Tribunal and the Court of Appeal previously thought; but it did not introduce the ability to bring an appeal based on public law grounds, which have always been available. [This paragraph of the headnote is missing from the version of the judgment published on Bailii.]

Importance of disclosure
This decision confirms that applicants for naturalisation are required to disclose anything and everything that may cast doubt on their good character, not only at the time of making the application, but also whilst the application is being considered.

As Guide AN confirms, this includes disclosure of any offence “for which you may go to court” even if a criminal charge has not yet been brought. In such circumstances, the privilege against self-incrimination is not a defence for non-disclosure.

If such conduct is not disclosed and later comes to light, it is likely to result in deprivation of citizenship — even that might render the person stateless. And following the Supreme Court’s decision in Begum, the grounds of appeal against a deprivation decision are narrow.

January 7, 2022

Six especially ugly bits of the revised Borders Bill that really should be changed

Page contents
1. No-notice deprivation of citizenship
2. Priority Removal Notices
3. Accelerated detained appeals
4. Abolition of certain appeal rights
5. Notice requirements for removals
6. Insufficient legal aid
Conclusion

The controversial Nationality and Borders Bill had its second reading in the House of Lords this week. One thing that peers on all sides of the house seemed to agree on – even if for different reasons – is that the immigration system is not working well. They’re right.

Official figures demonstrate an unacceptably high level of unlawful decision-making. Half the appeals against Home Office immigration decisions are successful in the First-tier Tribunal. Around one third of judicial reviews lodged against the Home Office are either settled or decided in the claimant’s favour, according to the government’s evidence to the Independent Review of Administrative Law.

Contrary to the Home Secretary’s stated intention of “ensuring access to justice and upholding the rule of law”, the Borders Bill fails to address the urgent issues with the current system. These include the need for access to proper legal advice and a properly funded courts and tribunals system, as well as better first instance decision-making.

Instead, the Bill contains a series of provisions which make these problems worse: weakening appeal rights despite high levels of wrong initial decisions; requiring judges and Home Office caseworkers to give “minimal weight” to some evidence provided by genuine refugees; creating fast-track processes based on policies previously found to be unlawful; and increasing the Home Secretary’s arbitrary powers, such as the authority to require certain cases to be heard artificially quickly, aggravating the risk of rushed and unlawful outcomes. Some were introduced or amended only at report stage in the House of Commons — that is, only after detailed scrutiny by MPs was over.

Below are the specific provisions that Public Law Project and JUSTICE believe will increase the risk of unlawful immigration decisions, make it harder to challenge those decisions, and threaten procedural fairness and natural justice.

1. No-notice deprivation of citizenship

Clause 9 of the Bill has already attracted considerable attention [but you read it here first — Ed.]. Whilst the Home Secretary’s power to deprive someone of British citizenship is not new, this clause will introduce new exceptions to the requirement to give a person notice of that decision. These exceptions are based on a subjective test – what appears to the Secretary of State to be the case, rather than what can be objectively proven – and are drafted extremely broadly. There is no requirement that the power be used only in “exceptional circumstances”, as the Home Office has repeatedly claimed.

If no-notice provisions are deemed necessary, they should be limited to exceptional circumstances, such as when there is no possible way of contacting the person; contain objective tests requiring the Home Secretary to justify her decisions; confer on the Home Secretary an on-going duty to take steps to give notice; and, most importantly, protect access to appeal, for example by suspending appeal time limits until actual notice has been given.

2. Priority Removal Notices

Priority Removal Notices (PRNs) are designed to truncate the period of time in which a person can challenge a Home Office decision to remove them from the UK.

If someone is issued with a PRN, they can be given a “cut-off date” by which they must tell the Home Office their grounds and the evidence they want to rely on in support of their protection or human rights claim to remain in the UK. Anything after the cut-off date is deemed late — in which cases the Bill makes it mandatory for the Home Office and judges to interpret that person’s credibility to be damaged and evidence be given “minimal weight”, unless they can show good reasons.

There are many potential good reasons why a claim might be late; delay due to trauma and difficulties accessing legal advice are just two. But these provisions place the burden on claimants to show those reasons before their claim will be considered fairly. This is despite the fact that the government’s own equality impact assessment acknowledges that “vulnerable people… might find it more difficult than others to disclose what has happened to them; to participate in proceedings; and to understand the consequences of non-compliance with legal requirements”.

Even if there are no good reasons for a late claim, it does not mean that lateness should govern the assessment of the case, rather than its merits and the strength of its evidence. Judges and decision-makers spend their professional lives assessing credibility and the weight of evidence; there is no compelling justification for an automatic rule to override individual case analysis.

Even if the Secretary of State wishes to constrain her decisions in such a way, judicial independence must be preserved. Judges already have the power to assess late evidence differently without being required to do so by an arbitrary time limit. It is crucial that the decision of the Secretary of State to serve a PRN does not undermine the very purpose of the appeal process: to provide an effective and independent judicial check on executive power.

The PRN provisions give the Home Secretary the power both to expedite appeals and restrict them to one level of the immigration tribunal only, meaning no errors made by that single tribunal judge can be picked up. This includes barring them from the Court of Appeal. This restriction of appellate access is as rare as it is unjustifiable: the lateness of your claim has nothing to do with your susceptibility to judicial error. We have layers of appeal for a reason.

Finally, if someone affected by this expedited appeal process has a different appeal in progress, that appeal can also be pulled into the expedited system. This will arbitrarily subject claims which have been made on time — including in relation to EU law rights and deprivation of citizenship — to a process designed to punish late appeals.

3. Accelerated detained appeals

The Bill seeks to recreate a fast-track process for asylum appeals. This previously existed as the Detained Fast Track, which was found to be unlawful in 2015, and is now to reappear under a new name: “accelerated detained appeals”.

The criteria for inclusion in the proposed new accelerated detained appeals process are that:

the person is in detention
the case is of a description prescribed by regulations
in the opinion of the Secretary of State the appeal “would be likely to be disposed of expeditiously”
Nothing in these criteria requires any consideration of whether the appeal can be dealt with fairly if it is decided on an accelerated basis. There is no requirement to ensure that the appellant has access to competent legal advice and representation. There is no requirement to ensure that they have adequate time to secure essential evidence, such as medico-legal reports, country expert evidence, or other documentary or witness evidence. There is no requirement to provide access to an interpreter if the person does not speak sufficient English.

This clause weights the system almost entirely in favour of the Home Secretary with minimal concern for fairness to the individual.

4. Abolition of certain appeal rights

The Home Secretary already has the power to certify certain human rights claims as “clearly unfounded”, which means that they can only be appealed once a person has been removed from the UK. Clause 27 of the Bill will remove even that right of appeal.

It is not difficult to imagine that with late evidence attracting “minimal weight” under other provisions in the Bill, more cases could be declared clearly unfounded than at present, increasing the risk that a person will be deported to a country where they could be tortured or killed with no way to appeal the removal even after the fact.

5. Notice requirements for removals

Clause 45 imposes a duty on the Home Office to give people a minimum of five working days’ notice of when they are going to be removed from the UK. This is an improvement, since notice periods can currently be as little as 72 hours, and are not secured in primary legislation.

But a notice period is only useful if it allows the person to get legal advice during that window. Unlike the provisions for Priority Removal Notices (see below), there is no specific provision in the Bill for providing legal advice to those served with notice of the Home Office’s intention to remove them in five days’ time. Without this, the notice period in and of itself does nothing to secure effective access to justice. Whilst a statutory minimum period may be welcome in principle, its efficacy depends on the availability of legal advice and there is currently no adequate or sustainable legal aid funding in this area.

The Bill also creates several exceptions to the right to five days’ notice, which will allow the Home Secretary to remove people effectively without notice and take away the courts’ ability to supervise the use of removal powers.

The Joint Committee on Human Rights adds that:

the power of the Secretary of State to remove a person without further notice being given where a removal has previously failed must not be used in cases where a removal has failed for legitimate reasons or where the claimant’s right to access justice requires him or her to have additional notice.

We agree.

6. Insufficient legal aid

The Bill provides for seven hours of legal aid for people served with a Priority Removal Notice to receive advice on their immigration status and removal. Whilst additional legal aid is welcome, this level of provision is not adequate given the complexity of the current immigration system, much less a system with reduced appeal rights, expedited processes, and greater powers to the Home Secretary.

There is a strong case for all of immigration law to be brought back into scope for legal aid. The Westminster Commission on the sustainability of legal aid has recommended early advice in all immigration cases be immediately brought back in scope pending a more in-depth review. At the very least, the Bill should be amended to provide legal aid to people who are served with a five-day notice of removal under clause 45. (This could be done simply by inserting “or notice of removal directions” after “priority removal notice” throughout Clause 24.)

Conclusion

This Bill will entrench existing problems: people with a legitimate basis to stay in the UK – and genuine grounds to fear removal – can be removed without effective access to justice. Making it legally easier to remove people from the UK in principle does nothing to make the system any more efficient in practice. Greater effort should be made to increase the quality and accuracy of Home Office decision-making in the first place.

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