Deprivation of Citizenship and Fraud: the impact of Begum

Introduction

Deprivation of citizenship is one of the most extreme executive powers available in our modern society. Under section 40 of the British Nationality Act 1981 (BNA), the Home Secretary can deprive a person of their British citizenship if they consider it conducive to the public good under section 40(2) (conducive grounds cases), or if the person obtained their citizenship by fraud under section 40(3) (fraud cases). Notably, where an individual’s British citizenship is deprived because the Home Secretary believes their citizenship was obtained by fraud, the need to avoid statelessness does not apply.

Although a person subject to a deprivation order has a right of appeal to a specialist tribunal, the functions of the tribunal on such an appeal remain a question for debate. One issue is whether an appeal against a deprivation decision constitutes a full reconsideration of the decision to deprive the person of British citizenship (i.e. a merits-based review), or a more limited review of the Home Secretary’s decision challengeable only on public law principles.

The relevance of Begum

Begum v SSHD [2021] UKSC 7; [2021] AC 765 involved a challenge under section 2B of the Special Immigration Appeal Commission Act 1997 (“the 1997 Act”) to the Home Secretary’s decision to deprive Shamima Begum of her British citizenship, on the basis that her return would present a risk to national security (“the Deprivation Decision”). Ms Begum also brought a separate challenge to the Home Secretary’s refusal to grant her leave to enter the UK to pursue her appeal, challenging this by appeal on human rights grounds and by judicial review on common law grounds (“the Leave Refusal”).

The hearing of those issues took place concurrently before SIAC, with the Chair sitting concurrently as a judge of the Administrative Court. On the Deprivation Decision challenge, SIAC decided three preliminary issues against Ms Begum. SIAC also dismissed Ms Begum’s appeal against the Leave Refusal, and the Administrative Court dismissed the judicial review challenge of the same.

Lord Reed’s judgment in the Supreme Court addressed SIAC’s jurisdiction and powers on appeal under sections 2 and 2B of the 1997. Lord Reed concluded that the orthodox public law approach set out by Lord Hoffmann in SSHD v Rehman [2001] UKHL 47; [2003] 1 AC 153 should be favoured: the question for the Court was whether there was no factual basis for the Home Secretary’s opinion, and whether the opinion was one which no reasonable minister could have held. Lord Reed also stressed the importance of democratic accountability for decisions on matters of national security as an additional reason for SIAC to respect the Home Secretary’s assessment.

This provided an indication that, without an express statutory provision to the contrary, appellate courts and tribunals were generally not authorised to exercise the Home Secretary’s discretion differently. Deprivation decisions in section 2B national security cases could only be reviewed on public law principles.

Although Begum was a section 2B case relating to national security, Lord Reed’s wide-ranging analysis of the preceding legal authorities included Upper Tribunal decisions concerning the scope of an appeal under section 40A. The principles set out in Begum therefore may be of wider reach, applying to the jurisdiction of the First-tier Tribunal in cases of fraud under section 40(3). Indeed, a body of authority in the Upper Tribunal has emerged suggesting that Lord Hoffman’s orthodox public law approach applies to all types of deprivation appeals, including fraud cases [1].

Section 40(3) deprivation cases involving fraud: the U3 case

In light of the lingering ambiguity in Lord Reed’s judgment, the ‘Begum question’ and its applicability to section 40(3) fraud appeals has been put before the Court of Appeal in a series of recent cases, including Shyti v SSHD [2023] EWCA Civ 770, Ahmed v SSHD [2023] EWCA Civ 1087 and most recently, U3 v SSHD [2023] EWCA Civ 811. In both Shyti and Ahmed, the Court of Appeal declined to decide the ‘Begum question’ as it had been able to decide the appeals on alternative grounds and any decision on the point would be obiter.

In U3, the Court of Appeal considered the decisions in Rehman and Begum, before giving its own account of SIAC’s functions in section 2B appeals against deprivation decisions. The Court held that Lord Reed’s description of SIAC’s functions on a section 2B appeal was necessary to the decision in Begum, but even if obiter, it was highly persuasive. Nevertheless, as the Supreme Court was not considering an appeal against a SIAC decision on the merits of a section 2B appeal after a full hearing, Lord Reed’s description of SIAC’s functions were “necessarily at a high level” and could not be considering “binding” or “exhaustive” (at [166]).

The Court of Appeal stressed that section 2B confers an apparently unqualified right of appeal, and that right of appeal gave SIAC the power to decide questions of fact and law. Appeals should be treated as separate from an application for judicial review, as the Supreme Court had made clear in General Medical Council v Michalak [2017] UKSC 71; [2017] 1 WLR.

Significantly, the Court held that on a section 2B appeal, SIAC was entitled to make findings of fact on the balance of probabilities relevant to the assessment of national security. This suggests a more generous approach to SIAC’s functions relative to the deference to the executive insisted on by Lord Reed in Begum.

There was, however, an important limitation to that entitlement articulated at [173] of the judgment: SIAC can make findings of fact which may be relevant to the assessment of national security “as long as it does not use those findings of fact as a platform for substituting its view of the risk to national security for that of the Secretary of State”, and “[a]s long as it respects the limits expressed in Rehman and Begum when it considers a challenge to the Secretary of State’s assessment of national security”. A key part of the Court’s reasoning was that SIAC, as a specialist tribunal, was “very well placed” to judge whether it had enough material to make findings of fact, and whether it was appropriate to do so in the circumstances.

Although not central to its decision, the Court commented at [173] that SIAC could make findings of act in a wider range of cases, including deprivation appeals concerning fraud:

“There are many examples of cases in which SIAC may or must find facts. Statelessness is often an issue on a section 2B appeal … Nothing in the authorities prevents SIAC from making relevant findings of fact about that issue. Indeed, E3 obiter (see paragraph 31), above, supports that view. Nor does anything in those authorities prevent SIAC from making findings of fact in an appeal which raises issues under section 40(3) (if such an appeal were to be certified). Again, having heard the witnesses, it has a duty to make such findings. SIAC can, and must, also make relevant findings of fact on any issues about the ECHR which may arise on an appeal, and, as in this appeal, in relation to section 55.”

Squaring the circle or circle of confusion?

The Court of Appeal in U3 has arrived at a nuanced position that seemingly resolves the paradox of appeals under section 2B being governed mainly by administrative law principles, and the fact that SIAC has always accepted written and oral evidence which was not before the decision-maker at the material time. The approach in U3 allows the SIAC to consider new evidence, and if appropriate, make new findings of fact, all while respecting the Home Secretary’s assessment of national security in line with Begum.

The position regarding section 40(3) appeals, however, is no clearer. The Court of Appeal in U3 has created further uncertainty by suggesting that SIAC is not prevented from making findings of fact in such appeals, without any further discussion of whether those findings of fact will also be of limited effect. Confusingly, Laing LJ specifically refers to the ability of SIAC to make findings of fact in section 40(3) appeals if such appeals were to be certified. This would require the Home Secretary to certify that the deprivation decision in a fraud case was taken at least partly in reliance on information which should not be made public. The obvious question is therefore whether the same applies to section 40(3) appeals before the First-tier Tribunal.

The factors of institutional capacity and democratic legitimacy, central to the decision of Begum, carry less force where the assessment being challenged is whether citizenship was obtained by means of fraud. Unlike matters involving national security and intelligence, the Home Secretary does not bring the same level of expertise in the making of section 40(3) fraud determinations.

There is arguably no reason why a tribunal would not be well suited to making a factual finding that there has been fraudulent conduct that was material to the decision to grant citizenship, particularly as it may have additional material which was not before the original decision-maker. Yet in the alternative, the question of whether citizenship had been obtained by fraud may be one which the Home Secretary is best placed to decide, since they have responsibility for determining citizenship applications, including a statutory discretion to assess whether the applicant is of good character. These are arguments the courts have not yet considered, which U3 leaves open to deliberation.

The Court of Appeal has resisted the invitation to deal with Begum question in the context of section 40(3) fraud cases head on. It is surely only a matter of time before a suitable case reaches the appellate courts which will decide the question once and for all. Already, the consequences of being subject to a deprivation order are severe, and the potential to be stateless if subject to a section 40(3) deprivation order even more so. The sooner clarity is provided on this issue, the better.

This article is based on Edward Arash Abedian’s original article in Judicial Review

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[1] Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238 (IAC) at [29]-[30]
Also, SB v SSHD (DC/00054/2019), [11]; Muslija (deprivation: reasonably foreseeable consequences) [2022] UKUT 00337 (IAC), [10]; and Chimi v SSHD [2023] UKUT 00115 (IAC), [57]-[60]