Securing Due Process: Lessons Learned from Ullah v Secretary of State for the Home Department.

Background:

Hafiz Aman Ullah, the appellant, appeals against decisions made by the Upper Tribunal ("UT") on 25 February 2022 and 21 July 2022. These decisions overturned the initial ruling of the First Tier Tribunal ("FTT") that allowed Ullah's appeal against the decision of the Secretary of State for the Home Department ("SSHD") to deprive him of British citizenship. The FTT had originally ruled in Ullah's favour.

Case Summary:

This case revolves around the issue of procedural fairness, particularly regarding the determination of dishonesty in Ullah's application for British citizenship. Ullah, who had committed criminal offences, claimed he was not dishonest when answering a question on the citizenship application form regarding his good character. The FTT accepted his testimony without cross-examination, finding no evidence of dishonesty. However, the UT disagreed, asserting that Ullah was indeed dishonest. The appeal thus focuses on the probative weight of unchallenged evidence in determining dishonesty, concerning legal precedents like Ivey v Genting Casinos [2017] UKSC 67. Three grounds of appeal were raised: disputing the UT's authority to overturn the FTT's decision, criticizing the UT's handling of the case, and alleging procedural unfairness. The Court announced its decision to allow the appeal based on the first ground, suggesting that there was no legal error in the FTT's original decision.

Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 (06 March 2024) made it to the Court of Appeal.

The court of appeal observed the following as the UT's decision as to the error of law

FTT's Decision:

• The appellant provided oral evidence before the FTT, stating he ticked "No" on the citizenship application form because he genuinely believed it was the correct answer.
• The appellant was only convicted of possessing criminal property after his citizenship application and most charges against him were dropped.
• The SSHD did not challenge the genuineness of the appellant's belief during cross-examination. The FTT accepted that without challenging this belief, the SSHD couldn't assert dishonesty solely based on the conviction.
• The FTT emphasized the need to examine the appellant's mental state at the time of completing the form. It concluded that the SSHD hadn't proved intentional deception, which was necessary under section 40(3).

The court of appeal observed the following as to the UT's Jurisdiction and Errors of Law:

• The UT's jurisdiction is limited to errors of law under Sections 11 and 12 TCEA 2007.
• Legal principles dictate that the UT should refrain from finding errors of law just because it might disagree with the FTT's conclusions or reasoning.
• The UT should not assume that points not expressly mentioned by the FTT were not considered.
• The UT must exercise judicial restraint and not infer misdirection by the FTT based on incomplete reasoning.
• Judges in the FTT are presumed to be aware of relevant legal authorities.
• Different tribunals may reach different conclusions without implying an error of law.

The court of appeal observed the following as to the UT's Reasons for Setting Aside FTT's Decision:

• The UT highlighted potential significance in the appellant's prior conviction for possessing criminal property.
• It criticized the FTT for failing to adequately address the implications of the conviction on the appellant's state of mind when completing the citizenship form.
• The UT found shortcomings in the FTT's analysis and reasons, particularly regarding the appellant's knowledge of criminal conduct and its relevance to the "good character" requirement.
• It concluded that the FTT's decision lacked proper analysis and reasoning, especially concerning the appellant's past conduct and its impact on his eligibility for citizenship.

In essence, the UT found errors in the FTT's handling of the case regarding the appellant's prior conviction and its implications on his honesty, leading to the decision being set aside.

Court of Appeal's ruling and observation:

The Two-Stage Test for Dishonesty:

In the context of naturalization applications and deprivation cases, a finding of dishonesty is crucial. The test for dishonesty, as outlined in Ivey by Lord Hughes, involves two stages: (i) determining the individual's actual state of knowledge or belief about the facts, and (ii) assessing whether their conduct was dishonest by the standards of ordinary decent people. This approach was confirmed in the criminal context by the Court of Appeal in R v Barton and further emphasized in LLD by the Court of Appeal in Northern Ireland.

In cases such as Balajigari and LLD, the courts reiterated the applicability of Lord Hughes' formulation of dishonesty across different legal contexts, including immigration cases. The principles set out in Ivey are broad and should be applied consistently for coherence and predictability in the legal system.

In the present case, the SSHD acknowledged the application of the Ivey test. The UT upheld the SSHD's challenge, emphasizing that the FTT failed to adequately address the implications of the appellant's conviction, thus neglecting the objective limb of the dishonesty test.

Contrary to a suggestion by Pajtim Berdica, reliance on Ivey in immigration cases is not misplaced; rather, it is essential for ensuring consistency in legal standards.

The UT made a crucial error in considering the appellant's guilty plea to be decisive evidence of dishonesty. While some cases may strongly imply dishonesty, it's not an absolute rule. As noted in Sleiman, the causative link between conduct and citizenship can vary.

In this case, the appellant provided oral evidence about his state of mind when completing the application form and pleaded guilty to possessing criminal property, requiring knowledge or suspicion. However, the plea was likely based on suspicion rather than knowledge, as indicated by the absence of a Newton hearing challenging the plea basis.

The FTT found the appellant's explanation plausible under the subjective limb of the dishonesty test and properly weighed this against the objective standard. The FTT also considered the SSHD's failure to cross-examine the appellant, leading to an "evidential gap" in the SSHD's case, contrary to the UT's assertion.

The argument by the SSHD that the appeal constituted a collateral attack on a final criminal court decision is flawed. The criminal offences weren't based on dishonesty, and the duty of the FTT to apply the Ivey test remained unaffected.

Additionally, the UT wrongly assumed that the appellant's guilty plea amounted to an admission of dishonesty, whereas there's no evidence to suggest so.

The recent judgment in TUI by the Supreme Court highlights the pivotal role of cross-examination in evaluating witness testimony. Lord Hodge, in paragraph [42] of the judgment, endorsed the principle articulated in Phipson on Evidence 20th Edition (2022), emphasizing that parties are generally required to challenge opposing witnesses' evidence through cross-examination if they seek to contest its acceptance by the court. This practice is essential as it allows witnesses to clarify any contradictions or issues in their testimony and ensures fairness in the adjudicative process.

Lord Hodge further underscored the significance of cross-examination in providing witnesses with an opportunity to explain or clarify their evidence, particularly in cases where accusations of dishonesty are made. He noted in paragraph [70(vi)] of TUI that cross-examination serves as a critical tool for assessing witness credibility and is particularly crucial when dishonesty is alleged. Although Lord Hodge acknowledged that this rule is not absolute and may be relaxed depending on the circumstances, he emphasized its fundamental importance in ensuring fair and effective adjudication.

In the present case, counsel for the respondent argued that the evidence presented by the appellant was "manifestly incredible," justifying the lack of cross-examination. However, this argument fails to recognize the discretion vested in the trial judge to assess evidence and determine credibility. Moreover, the respondent's failure to cross-examine the appellant must be contextualized within the broader procedural history of the case. Despite multiple opportunities and warnings, the respondent neglected to challenge the appellant's evidence, undermining subsequent criticisms of the tribunal's approach.

In conclusion, the failure to cross-examine the appellant cannot absolve the respondent of procedural lapses or excuse errors in the tribunal's reasoning. The principles elucidated in TUI underscore the critical importance of cross-examination in ensuring fairness and integrity in the adjudicative process, particularly in cases involving allegations of dishonesty.

The heart of Mr. Ullah's case revolved around his appeal against the removal of his British citizenship, based on claims of dishonesty during his citizenship application. Despite later convictions related to immigration fraud, the fact that Mr Ullah answered "No" to a question about his character on the application wasn't considered clear proof of dishonesty. The Court rightly emphasised the need for solid evidence and thorough examination, especially in cases with significant consequences.

Looking beyond the specifics of this case, Ullah v Secretary of State for the Home Department highlights the importance of coherence and predictability in our legal system. By sticking to established legal principles, the Court reinforced public trust in the justice system and upheld the rule of law. This dedication to legal precedent underscores the judiciary's commitment to protecting individual rights and ensuring fairness.

In summary, the ruling in Ullah v Secretary of State for the Home Department showcases the enduring values of justice and fairness. Through careful analysis and a commitment to legal integrity, the Court set a commendable example that resonates throughout legal circles. As we navigate the complexities of citizenship law and beyond, it's crucial to learn from this significant case, ensuring that justice remains the bedrock of our legal framework.