Supreme Court addresses fairness concerns in deprivation appeals

Having been given a very hard time of it in the Court of Appeal, the Home Secretary has finally been vindicated in her series of appeals concerning the process for depriving people of their British citizenship. The Supreme Court has held that procedural fairness can be achieved through a statutory appeal, as clarified in another Supreme Court decision post-dating the Court of Appeal’s decision in this case. The Supreme Court held that because fairness can be addressed in the appeal, there is no need to provide a person with the ability to make representations before a decision to deprive them of their citizenship is made. The case is Secretary of State for the Home Department v Kolicaj [2025] UKSC 49.

Background

In brief, on 22 January 2021 the respondent Mr Kolicaj was served with a notice of intention to make a deprivation order. Around 30 minutes later he was served with an order depriving him of his British citizenship.

This process was deliberately followed to ensure that Mr Kolicaj would not have an opportunity to renounce his Albanian citizenship before the order was served on him. If he had done so, the order could not have been made as it would have left him stateless.

The First-tier Tribunal dismissed Mr Kolicaj’s appeal but he then succeeded in the Upper Tribunal and the Court of Appeal. The Court of Appeal dismissed the Home Secretary’s appeal, finding that both the deprivation decision and the order were procedurally unfair because of the failure to allow Mr Kolicaj the opportunity to make representations before the decision was made.

The court considered that the ability to appeal under section 40A did not provide a fair opportunity either. The court’s reasoning here was that the right of appeal was too limited in scope because it “was on the information available to the Secretary of State and the circumstances obtaining at the time she made her decision on 22 January 2021, in so far as these gave rise to a public law challenge to that decision judged as at that time”.

In reaching this conclusion, the Court of Appeal referred to the Supreme Court’s decision in R (Begum) v SIAC [2021] UKSC 7 which restricted an appeal against a deprivation decision under section 40(2) of the British Nationality Act 1981 to a review of the decision on public law grounds, i.e. the lawfulness of the Home Secretary’s decision in the circumstances as they existed at the date of the decision. The Court of Appeal listed the types of submissions that Mr Kolicaj would be prevented from making as a result of this limitation, including relying on new material, being able to make representations on the merits, and setting out the current position regarding his risk of re-offending.

The Supreme Court

Since the Court of Appeal’s decision in this case, the Supreme Court decided U3 v Secretary of State for the Home Department [2025] UKSC 19. Here, the Supreme Court said that it is possible for these appeals to be based on evidence that was not before the Home Secretary at the time the deprivation decision was made, and there is nothing restricting evidence to matter pre-dating the decision. The Supreme Court said that the “question is therefore whether the evidence in question is relevant to deciding whether the appeal should be allowed”.

The Supreme Court said that

this part of the Court of Appeal’s reasoning reflects the (erroneous) common ground between the parties that an appeal is concerned only to examine the circumstances existing at the time of the Secretary of State’s decision and again depends on its (erroneous) view of the limited nature of an appeal under section 40A. On the basis of these points, it is readily understandable that the court considered that there is a fairness gap in the regime. It was to fill that gap that the court posited the requirement on the Secretary of State to offer to consider representations made by an individual outside the appeal process, after exercising her power under section 40(2) in such a way as not to afford the individual an opportunity of renouncing his or her foreign citizenship. 

It should be noted that U3 dealt explicitly with appeals to the Special Immigration Appeals Commission and Mr Kolicaj argued here that this did not apply to cases such as his where the appeal was to the First-tier Tribunal. The Supreme Court did not agree, saying that the “procedural differences between an appeal in the FTT and an appeal in SIAC exist solely to enable SIAC to be in a position to examine sensitive secret information relied upon by the Secretary of State which cannot be made public”.

The other main issue dealt with in the appeal was whether the Court of Appeal was right to quash the deprivation notice and order, with the Supreme Court holding that it should have been set aside instead as this is the power held by the First-tier Tribunal. There were also cross-appeals made by Mr Kolicaj, but all were dismissed.  

Conclusion

Time will tell whether this (and probably more particularly, the decision in U3) has finally drawn a line under all the confusion around the procedure for deprivation decisions and the appeals against them. In the meantime, it is not too difficult to envisage that anyone who is very determined to renounce their citizenship may now choose to do it in advance of any notice possibly being served.