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Deception and denaturalisation: seek and you shall find

In this blog post I am going to take a look at the second main way that the British state strips some citizens of their citizenship status. In a previous blog post I looked at behaviour-based denaturalisation. Here I’m looking at fraud-based denaturalisation. In contrast to the considerable literature addressing behaviour-based denaturalisation, fraud-based denaturalisation has attracted little analysis. Some interesting work by Émilien Fargues forms an exception to the rule.

There are two types of fraud-based denaturalisation in the United Kingdom. The statutory power to deprive a British citizen of their status on the basis of fraud was introduced in 1914. It is unknown how frequently this statutory power was exercised in previous years but it is thought to be seldom. A further form of fraud-based denaturalisation emerged through case law. In the 1978 case of Sultan Mahmood [1981] QB 58, a man had adopted the identity of his dead cousin and later purported to register as a British citizen in that identity. The court held that the purported registration was a nullity because of the man’s fraudulent adoption of the identity of a real person.

Later cases expanded the circumstances in which a previous recognition or grant of citizenship might be simply disregarded in this fashion as a nullity. Statistics for both these forms of fraud-based denaturalisation are available for the period since 2012, and show a significant subsequent expansion in exercise of the power. This coincides with increased use of behaviour-based denaturalisation discussed in a previous blog post.

The rise and fall of nullification

The British state found it convenient to rely on simple declarations of nullity, challengeable only by way of an application for judicial review, rather than the statutory power, which carried procedural safeguards and a full right of appeal. The number of nullity declarations soared in 2013 from a very low base to 176 cases in a single year before subsiding again.

In 2018, the Supreme Court held in a case call Hysaj [2017] UKSC 82 that cases subsequent to Sultan Mahmood had taken a ‘wrong turning’ and therefore that many of the subsequent nullity declarations had been unlawful. The statutory power should have been exercised instead.

The number of statutory fraud-based deprivations then began to rise then increase sharply to 273 cases in 2021. It may well be the case that a proportion of the more recent statutory deprivation decisions have been made in respect of individuals whose citizenship was previously unlawfully nullified then in effect restored by the Supreme Court judgment.

Is there more fraud?

Why has there been such an increase in fraud-based denaturalisation? One possible explanation is that modern migrants are on average more fraudulent than historic migrants. This is probably unknowable but it seems unlikely as an explanation. Human behaviour does not really seem to change over time and the benefits of entry to the UK were probably just as great, if not greater, in the twentieth century.

Alternatively, if the proportion of migrants willing to deploy fraud remained broadly the same but the absolute number of migrants to whom citizenship was granted rose, that might explain the increase. This is not borne out by the available statistics, though. While there has been an increase in grants of citizenship between the period 1980 to 1999 (average 63,000 per year) and 2000 to 2021 (average 150,000 per year), this does on the face of it explain the sharp increase in fraud-based denaturalisation since 2012.

It is more plausible to suggest either or both that more effort is made to detect fraud — which would represent a change in state policy — and perhaps that fraud is easier to detect in the modern world, given the proliferation of databases against which checks for fraud can be made.

Focus on fraud

The Home Office team responsible for denaturalisation, the Status Review Unit, was created in 2012. Prior to that, a report by the Chief Inspector of Borders and Immigration recorded that no fraud-based denaturalisations at all had been processed in the years 2008 to 2012. A later inspection carried out in 2017 recorded that the entire unit consisted of 24 staff in 2017. Fargues, who had some access at the Home Office, found that five of of these officials were dedicated to denaturalisation.

In March 2017, the unit was reported to have a backlog of 1,338 deprivation cases and to be processing between 12 and 23 such cases per month. The delays caused by persistent backlogs, the opportunistic, non-systematic way in which cases are referred to the team within the Home Office, the internal system of prioritisation and the availability of only snapshots of statistics on the work in progress render it impossible to link any prior migration trends with the number of denaturalisations occurring in a given year.

If you create an Inquisition, it will find heresy. Setting up a dedicated team for the specific purpose of detecting fraud is likely to lead to an increase in the detection of fraud. That does not explain why the decision was taken to devote resources to this issue, and it may be an element of circularity. The unit was set up because more fraud was noticed or suspected, and the unit then proceeded to uncover more fraud.

Widening the net

Meanwhile, at some point between July 2014 and December 2014, a pragmatic policy to the effect that denaturalisation would not be pursued against a person who had resided in the United Kingdom for 14 years was abolished. It is hard to say when exactly now; this window is derived from comparing captures of the relevant policy document in the National Archive.

The abolition of this policy opened the doors to pursuit of denaturalisation of long-term residents, some of whom had been British citizens for well over a decade by the time deprivation action was taken. This was despite the Home Office being aware of the underlying fraud for substantial periods of time.

In one reported case, for example, an Albanian man had enter the United Kingdom in 1999, been naturalised as British in 2005, was warned of possible denaturalisation action in 2009 and then formal action was only pursued in 2018.

In another, an Albanian man entered the country in 1996, was naturalised as British in 2003, issued with a nullity decision in 2013 (which was then itself effectively invalidated by the Supreme Court judgment in Hysaj as discussed earlier) and statutory deprivation action was taken in 2018.

In previous years, if earlier fraud had later emerged the state would simply have written it off. It is easy to see why a state would decide not to pursue action in such cases: it might well be considered pointless given the person would be unlikely to face removal and it might well have a strong adverse effect on family members and others, not just the individual concerned. Widening the net to include long-term residents must surely be a contributing factor to the increase in fraud-based denaturalisation.

Why so many Albanians?

A high proportion of fraud-based denaturalisations since 2012 involve Albanian citizens. This is reflected in the inspection reports addressing denaturalisation and in the reported cases on fraud-based denaturalisation. Why is this?

The background is that some Albanians from Albania arrived in the United Kingdom in the late 1990s and early 2000s and claimed to be ethnic Albanians from Kosovo in order to benefit from a Home Office policy of granting asylum to Kosovars. Some were granted asylum and some were not. Where asylum was refused, it was often because the asylum claimant was disbelieved. Either way, many continued to use their fabricated details in their various dealings with the Home Office. They were eventually granted limited leave, indefinite leave to remain and then sometimes British citizenship.

The previous fraud became often emerged after the person concerned sponsoring the entry of family members from Albania. Denaturalisation action sometimes followed relatively swiftly but was often delayed. It later emerged that one explanation for the delay was simply that officials deciding immigration and citizenship applications within the United Kingdom did not have access to the database used by officials deciding applications for entry from abroad.

There was perhaps an unusual confluence of circumstances. A refugee crisis arose on one side of a national border that divided an ethnic group with a shared language. The UK adopted a generous approach to refugees from one side of that border. But that is not unique, and there is probably plenty of use of fraud by other individuals and groups. This cannot be the whole story of why an administrative infrastructure has been constructed in order seemingly to denaturalise a specific national group.

Discretion and discrimination

It is improbable that Albanian migrants are uniquely liable to have used deception at some point in order to secure status in the United Kingdom.

Where there is discretion, there is also discrimination. It has long been the case that Albanians are heavily overrepresented in immigration detention and in enforced removals, not just in denaturalisation decisions. There is a huge amount of discretion as to what resources are dedicated to detecting fraud and then also to taking action. It is entirely plausible that the British state has discriminated against Albanians.

In an earlier blog post I pointed to discrimination against Muslims in behaviour-based denaturalisation. This is so well documented as to be uncontroversial, I think. Albania is a majority-Muslim country, albeit Albanians are often not perceived as Muslim.

Albanians have nevertheless become a racialised group in the United Kingdom. We have recently witnessed rhetoric from the Immigration Minister Robert Jenrick and Prime Minister Rishi Sunak which singles out Albanians as being particularly deserving in some way of immigration enforcement action. The public discourse concerning Albanians would be unthinkable about any other national or ethnic group. I find it impossible to imagine mainstream contemporary politicians levelling the same explicit generalisations and associations with criminality and deception at Nigerians, Pakistanis, Jamaicans, Jews or others, for example.

There is a possible counterargument here. A plausible case could perhaps be made for arguing that Albanians are uniquely unfortunate in being more liable to be caught; their government has been unusually co-operative in checking identity details on request by British immigration officials. Similar identity checks cannot be so readily carried out on those who claimed asylum from Iraq in the late 1990s and early 2000s claiming to be from the Kurdish autonomous area, for example.

The fact remains that the British government has chosen to devote considerable resources to this exercise since 2010 and overwhelmingly targeted a particular national group, whereas potential deception within other migrant groups has been tacitly tolerated.

Morality and migrants

In practice, very few fraud-based deprivation decisions seem to lead to removal action. Those concerned almost invariably have partners and children in the United Kingdom, who are often themselves British by birth, registration or naturalisation. Indeed, the original deception is often detected only by means of the sponsoring of a family member to come to the United Kingdom.

This absence of a drastic, direct consequence to denaturalisation calls into question its purpose. In short, why devote resources to this issue — there are many arguably more pressing issues facing the contemporary Home Office — when the deception is so historic and denaturalisation will not lead to removal in any event?

Fargues argues convincingly that the British government made the need to tackle fraud one of its priorities in the field of migration, particularly but not exclusively in the context of asylum and marriage migration. The equation of migration with deception is hardly new but there is evidence to suggest that additional priority and resources have been dedicated to the issue in the context of citizenship.

The purpose of fraud-based denaturalisation appears to be a moral one. Fargues suggests the officials responsible justify their work as threatening the purpose of naturalisation, namely to celebrate citizenship as a prize available only to those deemed sufficiently worthy.

Underlying all of this is a change to the way in which value is attributed to citizenship. The once-controversial statement that citizenship is a ‘privilege not a right’ first appears in Parliamentary debates on the abortive earned citizenship legislation of 2008 and 2009. For some, the high value of citizenship means it should only be removed in exceptional circumstances, if ever. For others, the value of citizenship is enhanced by fragility. If citizenship can be broken or lost, those who hold it will cherish it all the more.

This moral dimension to citizenship is rarely stated explicitly in public but has become increasingly prevalent. As I suggested in my piece on behaviour-based denaturalisation, it is increasingly evident there too. This moralistic approach is likely to lead to ever wider use of denaturalisation powers, albeit primarily and disproportionately against perceived out-groups.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.