Court of Appeal emphasizes test for dishonesty and procedural fairness in citizenship deprivation case

Citation: [2024] EWCA Civ 201
Judgment on

Introduction

The case of Hafiz Aman Ullah v Secretary of State for the Home Department presents an appeal against the decisions of the Upper Tribunal (UT) regarding the deprivation of British citizenship based on allegations of dishonesty in the appellant’s naturalization application. It provides insights into the application of the principle of procedural fairness and the test for dishonesty in the context of deprivation decisions under the British Nationality Act 1981.

Key Facts

Hafiz Aman Ullah, the appellant, was deprived of his British citizenship after being convicted of a criminal offence involving possession of criminal property prior to his naturalization as a British citizen. The case turned on whether he acted dishonestly by answering “No” to a question in the naturalization application form about his good character. The respondent did not cross-examine the appellant regarding his state of mind when he completed the form, which became a pivotal issue in the appeal.

The judgment primarily revolves around the application of the following legal principles:

  1. Test for Dishonesty: The case referenced the Supreme Court’s judgment in Ivey v Genting Casinos, applying its two-stage test for dishonesty to the immigration context, which involves first establishing the individual’s subjective knowledge or belief as to the facts and then judging his conduct against the objective standards of ordinary decent people.

  2. Procedural Fairness and the Duty to Cross-Examine: The judgment leaned heavily on the Supreme Court’s ruling in TUI UK Ltd v Griffiths, emphasizing the importance of cross-examining witnesses on key points of their evidence, particularly where allegations of dishonesty are involved. The absence of cross-examination was deemed a significant omission.

  3. Standard and Quality of Evidence: Given the seriousness of allegations of dishonesty, the civil standard of proof with a demanding quality of evidence is required as established in R v SSHD ex parte Khawaja and SSHD v Rehman.

  4. Error of Law: The case affirmed the principle that the Upper Tribunal is restricted in its jurisdiction to errors of law as outlined in AH (Sudan) v Secretary of State for the Home Department and other cases. It also addressed the proper approach to considering whether an error of law has been made, as set out in the Tribunals, Courts and Enforcement Act 2007.

Outcomes

The Court of Appeal allowed the appeal on the basis that:

  1. The UT erred in its application of the law on dishonesty by finding a decisive fact from the appellant’s conviction which did not necessarily lead to an inference of dishonesty.

  2. The UT made an incorrect legal assessment by not recognizing the “evidential gap” left by the absence of cross-examination on the appellant’s state of mind, which contributed to the FTT’s conclusions.

  3. The UT’s action was procedurally unfair in deciding the appeal and substituting its own decision for that of the FTT without re-examining the appellant’s oral evidence.

Conclusion

The Court of Appeal’s decision in Hafiz Aman Ullah v Secretary of State for the Home Department provides a clear affirmation of the strict approach required in establishing dishonesty, especially when it is critical to the outcome of a case, such as the deprivation of citizenship. The requirement for cross-examination where allegations of dishonesty are central to the decision, the proper application of the civil standard of proof in serious cases, and the limits on the UT’s jurisdiction to errors of law are important takeaways for legal professionals handling similar matters.