Court of Appeal clarifies the approach to fraud deprivation of citizenship appeals

On 17 January 2024, the Court of Appeal handed down judgment in Chaudhry v SSHD [2025] EWCA Civ 16.

In Chaudhry, SSHD had decided to deprive the Appellant, Mr Chaudhry, of his British citizenship under s.40(3) of the British Nationality Act 1981. The decision followed a finding by SSHD that Mr Chaudhry had fraudulently applied for a British passport, and later a UK driving licence, using the false identity of a deceased British child, and failed to disclose those matters when he applied to naturalise as a British citizen.

The key issue in the appeal was the nature of the test to be applied by the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) when determining an appeal from a decision of the Secretary of State for the Home Department (“SSHD”) to deprive a person of their British citizenship on the grounds of fraud, false representation, or concealment of a material fact under s.40(3) of the British Nationality Act 1981 (“BNA 1981”).

Determination of that issue required the Court of Appeal to consider the scope of the judgment of the Supreme Court in R (Begum) v Special Immigration Appeals Commission [2021] AC 765 (“Begum (No.1)”) and the judgments of Upper Tribunal (Immigration and Asylum Chamber) in Ciceri (deprivation of citizenship appeals: principles) v Secretary of State for the Home Department [2021] UKUT 238 (IAC); [2021] Imm AR 1909 and Chimi v Secretary of State for the Home Department (deprivation appeals; scope and evidence) [2023] UKUT 115 (IAC); [2023] Imm AR 1071.

The Court of Appeal accepted the submissions made on behalf of SSHD in relation to the proper approach to an appeal under s.40A of the BNA 1981 from decisions of SSHD made pursuant to s.40(3) of the BNA 1981. Crucially, Dingemans LJ held at [54] that:

• it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981;
• the decision of the Secretary of State on the causation issue whether the registration or naturalisation was obtained by the impermissible means is to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1);
• the exercise of the Secretary of State’s discretion to make an order depriving a person of citizenship status is to be reviewed on appeal by the FTT on public law grounds in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1);
• it is for the FTT to consider whether the Secretary of State had acted in breach of other relevant legal obligations, including those arising under section 6 of the Human Rights Act. 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.

Chaudhry is now the leading authority on the test to be applied by the FTT when determining an appeal against a decision to deprive a person of their British citizenship on the grounds of fraud, false representation and concealment of a material fact under s.40(3) of the BNA 1981.

The judgment can be found here.

David Blundell KC, Julia Smyth and Harriet Wakeman appeared on behalf of the Secretary of State for the Home Department.