Benjamin Hawkin represented the Appellant before the Court of Appeal in what is a rare case, both procedurally and substantively.

Whilst serving a term of imprisonment the Appellant was notified by the Secretary of State that she would not be pursuing deportation against him, on the basis that he was a British citizen. In due course he was released on licence and resumed life with his wife and two children. However, 5 years after her original decision not to deport the Appellant, the Secretary of State did commence the procedure, stating that she did not accept that he was a British citizen. The Secretary of State subsequently made a deportation order.

The Appellant appealed to the First-tier Tribunal (Immigration and Asylum Chamber), which allowed his appeal, accepting that he had been naturalised. However, the Secretary of State then appealed to the Upper Tribunal, which overturned the First-tier Tribunal’s determination, and substituted its own determination dismissing the Appellant’s appeal, as it did not accept that he was a British citizen, or that deportation would breach his rights under Article 8 of the ECHR.

The Appellant then applied for permission to appeal to the Court of Appeal. Bean LJ granted permission to appeal on paper against the Upper Tribunal’s consideration of the nationality issue, as well as permission to adduce fresh evidence in respect of it, but refused permission on the Article 8 grounds.

However, at a renewed oral permission hearing, Gloster LJ accepted that the Secretary of State’s prior decision not to deport was an unusual factor having an effect on the Article 8 balancing exercise, and so gave permission on the outstanding grounds as well.