Court of Appeal returns deprivation appeal to the Upper Tribunal

The Court of Appeal has allowed the Home Secretary’s appeal in a deprivation case involving the use of a false identity, but the appeal will now return to the Upper Tribunal which had not considered the article 8 rights of the appellant. This is the third of the recent appeals to the Court of Appeal by the Home Secretary in a deprivation case. The case is Secretary of State for the Home Department v Daci [2025] EWCA Civ 18.

This case was heard around the same time as Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, where guidance was given on the correct approach to appeals against deprivation decisions made under section 40(3) of the British Nationality Act 1981. Section 40(3) decisions are made where the Home Secretary is satisfied that naturalisation was obtained by fraud, false representation or concealment of a material fact.  

Background

Mr Daci is an Albanian national who came to the UK aged 17 and applied for asylum in 1998 with a false name and date of birth and claiming to be a Kosovan national. He was granted indefinite leave to remain as a refugee in 1999 and also obtained a Home Office travel document using this false identity. He naturalised in this false identity on 23 June 2004. In May 2020 the Home Office became aware that he may have naturalised using a false identity and checks revealed his true identity as Mr Daci.

On 24 May 2021 Mr Daci was given notice that deprivation was being considered. He made representations that he should not be deprived of citizenship on 14 June 2021, including the fact that he had been a child when he first used the false identity. On 2 August 2021 the deprivation decision was made under section 40(3). On 25 April 2022 the First-tier Tribunal allowed Mr Daci’s appeal.

The Upper Tribunal set that decision aside on 21 August 2023 and remade it, allowing Mr Daci’s appeal for a different reason to the First-tier Tribunal. The Upper Tribunal concluded that “it could not be said that if the discretion had been lawfully considered, having regard to the variety of factors before the decision-maker, the outcome would inevitably have been negative to Mr Daci”.

Court of Appeal

The Home Secretary appealed, submitting that the Upper Tribunal had erred in law in finding that the Home Secretary had failed to take into account relevant considerations when exercising her discretion and had failed to give reasons for the exercise of discretion. The Home Secretary accepted that the Upper Tribunal had not considered Mr Daci’s article 8 claim and that issue should be remitted to the tribunal.

There were three issues to be determined by the Court of Appeal:

(1) whether the UT was wrong to find that the Secretary of State’s decision dated 2 August 2021 had been unlawful because the Secretary of State had failed to exercise and give sufficient reasons for the existence of the discretion provided by section 40(3) of the BNA 1981;

(2) whether the Secretary of State’s decision was otherwise unlawful and disproportionate, and in particular by reason of the misapplication of the relevant policy; and

(3) whether, if the Secretary of State’s appeal was allowed, Mr Daci’s article 8 ECHR claim should be remitted to the FTT or UT.

On the first point, the Court of Appeal disagreed with the Upper Tribunal, saying that it was apparent from a “fair reading” of the letter dated 2 August 2021 that the Home Secretary had given consideration to the use of discretion and had provided sufficient reasons for the exercise of discretion. The court also concluded that the decision was in line with policy and not unlawful or disproportionate, stating that:

Under the wording of the relevant policy at paragraph 55.7.8.3 Mr Daci was to be treated as complicit because he had attained the age of 18, did not acquire ILR or other leave automatically, and on 10 December 1999 Mr Daci applied for a Home Office Travel Document in the false identity of Dani, and on 11 May 2004 Mr Daci applied to naturalise as a British citizen in the false identity of Dani.

The appeal was remitted to the Upper Tribunal.

Conclusion

Two of the three recent Court of Appeal deprivation decisions have been returned to the tribunal, and I would not be surprised if the Home Secretary tries the Supreme Court on Kolicaj. I understand that at least some of the cases that were identified as being on hold pending a ministerial submission are now being progressed again. Anyone working on these cases should ensure they have had a look at the ICIBI’s recent inspection which contains several interesting points, including the Home Office’s “frustrations” about the reliance on article 8 grounds in these appeals and the fact that almost 25% of appeals in 2022 were successful.