Skip to main content

Test of dishonesty in Ivey applies to deprivation decisions

Written by
Asad Ali Khan
Date of Publication:
12 March 2024

Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 (06 March 2024)

In a case raising an elementary issue of procedural fairness, the Court of Appeal allowed the appeal of Mr Ullah—a Pakistani national—against the UT's erroneous decision to dismiss his appeal reversing the FTT's first instance decision to allow his appeal from the SSHD's decision to make an order to deprive him of British citizenship. The appeal arose out of the FTT's finding that Mr Ullah, who had committed criminal offences, did not act dishonestly when he answered "No" to a question on Form AN asking whether there was, in effect, anything which might cast into doubt his good character. Mr Ullah gave oral evidence in chief in the FTT and addressed his state of mind at the point in time when he completed the form and gave exculpatory evidence. Dishonesty was denied. No cross-examination was conducted by the SSHD. The issue at the heart of the appeal turned on the probative weight to be attached to any evidence which is not challenged in the context of a finding about dishonesty. The case drew on the Supreme Court's judgment, concerning civil law, in TUI UK Ltd v Griffiths [2023] UKSC 48 and confirmed that that the legal test of dishonesty entailed in Ivey v Genting Casinos [2017] UKSC 67 applies in the context of deprivation decisions under section 40(3) of the British Nationality Act 1981. Mr Ullah came to the UK in 2004 as a worker permit holder and was granted indefinite leave to remain in 2009.

On 27 June 2012, he applied for naturalisation as a British citizen using Form AN which invited him to read Guide AN as well as Booklet AN. Section 3 of Guide AN was headed "Good character" and required the applicant to disclose anything which indicated that he was not of good character and contained a warning that checks would be made in that regard failing which the application fee would be forfeited. Mr Ullah ticked "No" when he answered the question "Have you engaged in any other activities which might indicate that you may not be considered a person of good character". His application was granted and on 18 September 2012, he was issued with a certificate of naturalisation and became a British citizen. However, on 16 October 2012, he was arrested on suspicion of conspiracy to defraud the SSHD, fraud contrary to section 2 of the Fraud Act 2006, and possession of criminal property contrary to section 329(1) of the Proceeds of Crime Act 2002. His arrest followed a criminal investigation into large scale immigration fraud and his involvement with a gang of people associated with that fraud, involving the then highly skilled migrant programme (HSMP) and the creation of false employment or self-employment records to support falsified immigration applications under that route. He entered a guilty plead on the possession of criminal property which related to £80,532.35 that had been paid into his bank account.

He pleaded not guilty on the fraud charge and a verdict to that effect was directed to lie on the file. The remaining charges were stayed. He was sentenced to 51 weeks' imprisonment and released from prison in May 2013 and left the UK.

Deprivation of citizenship

Five other individuals were tried in 2014 on charges of conspiring to defraud in respect of the immigration fraud. Mr Ullah was not a defendant in those proceedings: the sentencing judge, however, referred to the discovery of a ledger at his home address which contained details of payments connected to the conspiracy. In March 2016, the SSHD sent him an investigation letter to his last known address in the UK, advising him that deprivation of his British citizenship was under consideration as there was reason to believe that he had obtained British Citizen status using fraud. He was invited to provide his response to the allegations made within 21 days. The mail record revealed the letter was signed for by someone using the name "Ullah". As no reply was received, the letter was re-sent to a different address on 1 April 2016 but no response was received to the letter. On 14 July 2016, a decision was made to deprive him of his British citizenship pursuant to section 40(3) of the BNA 1981. First of all, he was indicted for and convicted of possession of criminal property and had been involved in criminal acts prior to applying for British citizenship.

Secondly, on Form AN, submitted on 27 June 2012, he had ticked "no" in answer to the question in section 3.12 as to whether there was, in effect, anything which might cast his "good character" into doubt. Finally, had he disclosed his criminal activities in the Form AN, his application for British citizenship would have failed because he would not have been deemed of good character in view of his activities in immigration crime.

On 24 November 2019, he was stopped at Belfast Docks, attempting to board a ferry with the intention of travelling to London by bus. He said he left the UK in 2013 as he moved to the United States six years earlier. The SSHD re-served the decision of 14 July 2016. He appealed against that decision to the FTT. After hearing his oral evidence, the FTT judge allowed the appeal and held that he was not dishonest and did not use fraud, make false representations or conceal material facts while obtaining British citizenship. The SSHD's appeal in the UT was successful and judges Norton-Taylor and O' Callaghan found that the FTT's findings of fact were wrong in law and in the absence of any further hearing or receiving oral evidence held that Mr Ullah was dishonest in his naturalisation application and that the SSHD's decision disclosed no error of law. The parties agreed that a finding of dishonesty in the application for naturalisation is needed so as to justify a deprivation decision. The key issue of fact before the FTT was whether Mr Ullah was dishonest when he ticked "No" to the question asked in the application form as to whether he had engaged in any activities which might indicate that he might fail the good character test.

The legal burden of proving that Mr Ullah acted dishonestly rested upon the SSHD and a three-stage process applied, i.e. (i) the SSHD must first adduce prima facie evidence of deception, (ii) Mr Ullah then had a burden of raising an innocent explanation satisfying the minimum level of plausibility, and thirdly (iii) if that burden is discharged, the SSHD must establish on a balance of probabilities that this explanation is to be rejected.

The civil standard of proof is applicable and is flexible in its application. Where there are allegations of fraud or deception, which if established will have serious consequences, a careful examination of the standard and quality of the evidence adduced is mandatory as held in R v SSHD ex parte Khawaja [1983] UKHL 8 and SSHD v Rehman [2001] UKHL 47.

The Court of Appeal

Lewison, Green and Andrews LJJ unanimously allowed Mr Ullah's appeal and addressed dishonesty and cross-examination and the importance of cross-examination.

(i) Dishonesty and cross-examination

Green LJ said that a finding of dishonesty in the naturalisation application was needed to justify deprivation of citizenship. In the context of a deprivation decision under section 40(3) of the 1981 Act the test of dishonesty set out in Ivey applied.

In LLD v SSHD [2020] NICA 38, the Court of Appeal in Northern Ireland held that Lord Hughes' formulation in Ivey regarding dishonesty, provided as it was in the context of a civil case, should be applied broadly. And the court was not able to identify any reason in principle or otherwise why it should not apply to the Immigration Rules as "coherence and predictability in the legal system are long recognised and essential attributes" and that "the DNA of dishonesty is the same, in whatever legal context it features." Green LJ held:

31. The UT treated as decisive the fact that the Appellant had pleaded guilty to an offence which involved him knowing or suspecting that he was in possession of criminal property. In my judgment that amounts to an error of law. There may be cases where an individual's conduct almost inevitably leads to an inference of dishonesty; but that is by no means an immutable rule.

Despite its erroneous conclusion, the UT rightly pointed out that in Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 (IAC) it was stated at paragraph 53 that "in the cases of obvious fraud, such as in relation to identity or nationality, it is much easier to see the causative link between the conduct of the appellant and the granting of citizenship. In other cases the link may be less clear…".

Mr Ullah gave oral evidence as to his state of mind and understanding when he completed the application form. He committed the offence of possessing criminal property—in light of paragraph 26 of R v Gabriel [2006] EWCA Crim 229 the mens rea of the possession of criminal property requires knowledge or mere suspicion. Accordingly, Green LJ held:

32. … The Appellant pleaded guilty to the offence. There was no Newton hearing challenging the basis of plea. It must be assumed that he was sentenced upon the basis of the lesser mens reai.e. mere suspicion.

33. On the facts of the case, the FTT treated this explanation as plausible under the first subjective limb of the dishonesty test. The judge then measured this against the objective second limb of the test. In determining what weight to give to the evidence of Ullah the judge was entitled, and indeed bound, to attach relevance to the decision on the part of the Respondent not to cross-examine him in order to test and challenge his evidence. The conclusions of the Judge on the evidence are well within the bounds of the discretion to be accorded to a judge required to find facts. The FTT was therefore entitled to refer to an "evidential gap" in the SSHD's case arising from this failure to cross-examine upon this essential component of the case. The UT therefore erred when it said, at paragraph [32]: "the reality was that there was no such 'gap' in the evidence: the conviction and relevant supporting documentation spoke for itself".

34. Before this Court the SSHD argued that the appeal was a collateral attack upon a final decision of a criminal court and amounted to an abuse of process. This is misconceived. The criminal offences were not based upon dishonesty and in any event did not negate the duty of the FTT to apply the Ivey test to the facts before it.

The Court of Appeal observed that the UT's determination disclosed that the Presenting Officer had wrongly assumed that Mr Ullah had put forward an account of being unaware of wrongdoing at the Crown Court but had nonetheless been found guilty (by a jury) and thereby disbelieved. Notably, he had in fact pleaded guilty and there was no evidence that either expressly or impliedly his guilty plea was upon a basis amounting to an admission of dishonesty.

(ii) Importance of cross-examination

The Court of Appeal followed TUI UK Ltd v Griffiths and held that although the judgment of the Supreme Court concerned evidence in civil proceedings, the principles expounded in that case regarding the importance of cross-examination applied a fortiori in the instant case in the field of public law. The SSHD relied on the second exception listed in TUI, i.e. that the evidence was 'manifestly incredible' such that the loss of an opportunity to cross-examine 'would make no difference'. Rejecting the SSHD's submission that Mr Ullah's response, to the question whether he had committed any crime before 18 September 2012, obviated the need for cross-examination Green LJ held that:

43. … As to the evidence given from the witness box it was for the judge to assess in the round and then to form a view in the context of the relevant test for dishonesty. Mr Malik KC argued that the Appellant's answer was to be understood in a "practical" rather than a "technical" sense. He was simply saying that he had no actual knowledge of the crime. This is consistent with the mens rea of the offence as including suspicion. At all events the judge accepted this as "plausible" which was all that was required: e.g. Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615. Again, the issue for the UT was not whether it disagreed with the findings of fact made by the FTT but only whether those finding, generous or otherwise to Ullah, were outside the bounds properly to be accorded the fact finder.

The FTT was alive to the fact the case had a frustrating history. The SSHD was given four opportunities to address deception and dishonesty, but did not do so and failed to comply with a series of procedural directions relating to preparation for the hearing and breached an undertaking it had given to the FTT. The hearing during which Mr Ullah gave evidence was the fifth (lost) opportunity to allege deception. In closing submissions, it was stressed his evidence had not been challenged in cross-examination, yet the Presenting Officer did not, even at that late stage, invite the FTT to recall Mr Ullah and this was the sixth missed opportunity to raise dishonesty. Therefore, there was no conceivable excuse for the SSHD not to challenge his evidence on this key issue, and the criticisms made of the approach of the FTT were unfounded.


The Court of Appeal deprecated the suggestion in Pajtim Berdica v SSHD [2022] UKUT 276 (IAC), at paragraph 30, that reliance on Ivey in the immigration context is misplaced and Green LJ stated that such an approach "is not correct." Moreover, the failure to cross-examine Mr Ullah was fatal to SSHD's dishonesty case and the Court of Appeal remained unimpressed with the government's incompetence in that regard. Overall, the two weighty Supreme Court authorities of TUI and Ivey were against the SSHD and so his case failed.