Emma Harris this week successfully had set aside and remade in the Appellant’s favour, the decision of a First-Tier Tribunal Judge who had wrongly found as a matter of fact that, as both parents of a child were Indian Nationals, it followed automatically that the two children born in the UK must have been Indian Nationals as well. In reliance on this, the First-Tier Tribunal Judge had gone on to find that the parents must therefore have used deception when they had sought to register their children as British Citizens on the basis that they had both been stateless.
Having successfully registered their two children as British, both parents (whose visas had otherwise expired) had applied for Limited Leave to Remain with their children in the UK. The children’s father’s application had been granted but their mother (the Appellant) was refused because it was alleged that she had used deception in a previous application by relying upon a fraudulent English Language Test certificate. It was suggested by the Home Office that the Appellant’s presence in the UK was not conducive to the public good and that she could leave the UK whilst her children and partner could remain behind without her.
The First-Tier Tribunal Judge, considering whether the Home Office had discharged the legal burden of proving that the Appellant had engaged in deception in acquiring her English Language Test, had found that the Appellant’s explanation (that she had taken the test herself) could not be believed because she had a propensity to use deception, as evidenced by the deception used in the registration of her children as British Citizens when they could not possibly have been stateless as claimed.
In terms of the status of the children, this case mirrored the factual matrix and conclusions set out by MR C M G Ockelton, Vice President of the Upper Tribunal (Sitting as a Deputy High Court Judge) in the case of MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v The Secretary of State for the Home Department  EWHC 1365 (Admin) in which the position regarding Indian Nationality law is clearly explained as follows at :
“A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended. If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen.”
The erroneous allegation of deception had been raised by the Home Office for the first time in cross-examination during the First-Tier appeal hearing and neither the case of MK nor the relevant provisions of Indian Nationality law had not been drawn to the attention of the First-Tier Tribunal Judge.
As a result of these findings of deception, the First-Tier Tribunal Judge found that it was proportionate for the Appellant and her family to leave the UK.
On appeal in the Upper Tribunal, the mistake has this week been rectified. It has been recognised that the Appellant’s children were indeed stateless as a matter of fact and law and that no deception whatsoever was used in registering them as British Citizens. Furthermore, as this was the only reason for considering that the Appellant had a propensity to use deception, it has also been found that the Home Office have failed to prove that she used deception when obtaining her English Language Test certificate.
The Upper Tribunal Judge went on to remake the decision immediately, finding that, in the absence of any deception, it would be unreasonable to expect two British Children to leave the UK and that there is therefore no public interest in the removal of the Appellant in line with s.117B(6) of the Nationality, Immigration and Asylum Act 2002.