Shahanas Kanhirakandan v The Secretary of State for the Home Department
[2023] EWCA Civ 1298
Hafiz Aman Ullah v Secretary of State for the Home Department
6 March 2024
[2024] EWCA Civ 201
Court of Appeal
Someone lost their British citizenship. A lower court said they weren't dishonest, but a higher court disagreed. The highest court said the higher court was wrong because the government didn't properly question the person, so the lower court's decision stands. It's all about fair procedures and whether the person was actually dishonest.
Key Facts
- •Hafiz Aman Ullah (Appellant) appealed Upper Tribunal (UT) decisions overturning a First-Tier Tribunal (FTT) decision and depriving him of British citizenship.
- •The FTT had allowed Ullah's appeal, finding he wasn't dishonest when answering 'No' to a question about activities that might cast doubt on his good character.
- •Ullah gave unchallenged oral evidence before the FTT regarding his state of mind when completing the form.
- •The UT set aside the FTT's decision, finding the FTT failed to adequately address Ullah's conviction for possession of criminal property.
- •The UT remade the decision, finding Ullah dishonest and dismissing his appeal.
- •Ullah's conviction predated his citizenship application.
- •The SSHD did not cross-examine Ullah on his evidence regarding his state of mind at the time of application.
Legal Principles
The test for dishonesty is the two-stage test in *Ivey v Genting Casinos* [2017] UKSC 67, applying to deprivation decisions under section 40(3) British Nationality Act 1981.
*Ivey v Genting Casinos* [2017] UKSC 67
In deprivation of citizenship cases, the deception must have motivated the grant of citizenship and preceded it.
*Pirzada (Deprivation of citizenship: general principles)* [2017] UKUT 196 (IAC)
The UT's jurisdiction is limited to points of law; it should not readily overturn FTT factual findings.
Sections 11 and 12 Tribunals, Courts and Enforcement Act 2007, *AH (Sudan) v Secretary of State for the Home Department* [2007] UKHL 49, *MA (Somalia) v Secretary of State for the Home Department* [2010] UKSC 49, *R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority* [2013] UKSC 19, *UT (Sri Lanka) v The Secretary of State for the Home Department* [2019] EWCA Civ 1095, *AA (Nigeria) v Secretary of State for the Home Department* [2020] EWCA Civ 1296, *MM (Lebanon) v Secretary of State for the Home Department* [2017] UKSC 10
Failure to cross-examine a witness on a key issue can create an 'evidential gap', impacting the weight given to their unchallenged evidence.
*TUI UK Ltd v Griffiths* [2023] UKSC 48
Outcomes
The Court of Appeal allowed the appeal.
The UT erred in law by setting aside the FTT's decision. The FTT's finding that the appellant was not dishonest was within its permissible range of factual findings, given the SSHD's failure to cross-examine the appellant on the key issue of his state of mind when completing the application form. The UT improperly substituted its own judgment on the facts.
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