Deprivation of British citizenship process is procedurally unfair, says Court of Appeal

The Home Secretary’s appeal in a deprivation case has seemingly backfired as the Court of Appeal has held that the deprivation process being operated, where the affected person is not given an opportunity to make representations against the decision, is procedurally unfair. The case is Secretary of State for the Home Department v Kolicaj [2025] EWCA Civ 10. My write up of the Upper Tribunal’s decision in this case is here.

Background

Mr Kolicaj is an Albanian national who came to the UK in 2005 and was naturalised as a British citizen on 5 February 2009. He married in 2013 and has four British children. In February 2018 he pleaded guilty to conspiracy to remove the proceeds of criminal conduct from England and Wales. The Crown Court judge found that Mr Kolicaj played a leading role in a money laundering exercise where it was estimated that around £8 million was moved from the UK to Albania. He was sentenced to six years in prison, having been given a 25% discount on eight years because of his guilty plea.  

On 13 May 2020 a Home Office official wrote a ministerial submission to the Home Secretary recommending that the deprivation power at section 40(2) of the British Nationality Act 1981 be used against people guilty of serious organised crime, but that use of the power was limited to the “most serious and high profile cases”. The Home Secretary agreed. Before this, the position was that the guidance said that serious organised crime could lead to deprivation but this had not been regularly used in practice.

On 19 October 2020 the National Crime Agency wrote a letter inviting the Home Secretary to use her powers to deprive Mr Kolicaj of his British citizenship, including details of his offending as well as his family life. On 17 December 2020 a submission was made to the Home Secretary recommending that a deprivation order was made under section 40(2). The ministerial submission included five annexes, the letter dated 19 October 2020, an assessment that Mr Kolicaj would not be stateless, a human rights assessment stating in relation to article 8 that:

“full circumstances are not known at this time so only a preliminary assessment can be made. He will have the opportunity to make representations against each decision” [i.e. both in relation to the proposed deprivation order and the proposed subsequent deportation order]. The document further notes that Mr. Kolicaj’s circumstances in full “will only be known once he makes representations against both the decision to deprive his citizenship and the decision to deport him” and said that any representations “will be given careful consideration”

The fourth annex was an assessment of the welfare of the children in accordance with the Home Secretary’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The fifth was a draft notice of deprivation decision, which was subsequently signed by the Home Secretary.

A deprivation order was made in respect of Mr Kolicaj on 22 January 2021 under section 40(2) of the British Nationality Act 1981 (i.e. on the grounds that it was conducive to the public good). The order was served on Mr Kolicaj half an hour after he had been served with a notice of the decision under section 40(5) stating that his status as a British citizen was “under review” (described by the Court of Appeal as “infelicitously phrased”). Mr Kolicaj had no opportunity to make any representations before either the notice or order were made.

The Court of Appeal

The First-tier Tribunal dismissed his appeal on 5 May 2022. The Upper Tribunal then allowed Mr Kolicaj’s appeal against that decision, although in doing so concluded that the process followed by the Home Secretary in not giving advance notice and the opportunity to make representations, was lawful.

The Home Secretary appealed the decision to the Court of Appeal and was granted permission on the ground that:

The UT erred in law in finding that the Secretary of State, when making her decision to deprive Mr. Kolicaj of his British citizenship, was unaware that she had a discretion to exercise, and accordingly that she failed to take into account any of the matters relevant to the exercise of her discretion.

In the Respondent’s Notice Mr Kolicaj raised and was granted permission to appeal on two grounds:

a) The Deprivation Order was made following a process which was procedurally unfair because Mr. Kolicaj was not allowed any opportunity to make representations to the Secretary of State before she made her decision.

b) The Deprivation Order was unlawful because it was made by the application of a policy which was not published and not made available to Mr. Kolicaj until 23 March 2022. The suggested policy document is a submission by Ms. Fiona Johnstone dated 13 May 2020, more fully described below. That was disclosed shortly before the hearing in the FTT and this disclosure was the result of a request for disclosure on his behalf. The request was made because earlier disclosure, on 18 February 2022, had been given of the official advice which had been placed before the Secretary of State when she decided to make the Deprivation Order. That advice was contained in a submission by Mr. Steve Parsons with annexes which is dated 17 December 2020 and which referred to Ms. Johnstone’s earlier document.

The Court of Appeal identified two significant changes that had occurred since the decision in Mr Kolicaj’s case. The first change was to the process followed when making deprivation orders.

As set out in Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 (our summary of Laci is here) the previous process was that the person would be served the notice with the decision to deprive, they could then appeal that and the deprivation order would only be made after the person was appeals rights exhausted or had not appealed. In Mr Laci’s case, he was given three opportunities to make representations before the decision was made and was then able to appeal to the First-tier Tribunal before the order was made.

Concerns later arose about naturalised British citizens frustrating their deprivation by renouncing their other nationality, meaning they would be rendered stateless if deprived of their British citizenship and that would prevent deprivation as set out in section 40(4). The Home Secretary amended her practice in light of these concerns, to the process followed in Mr Kolicaj’s case. The court noted

Surprisingly, this new practice does not appear to have been written down anywhere

Counsel for the Home Secretary said that this process was applied to all cases of section 40(2) “conducive to the public good” cases without any consideration actually being given as to whether renounciation of the other citizenship was even possible.

The second significant change that had happened since the decision in Mr Kolicaj’s case was the Supreme Court’s decision in R (Begum) v SIAC [2021] UKSC 7 (our write up is here). This is because that case restricted the scope of an appeal to the First-tier Tribunal against a deprivation decision made under section 40(2) to a review of the decision on public law grounds. That means that new material cannot be placed before the tribunal and his ability to make representations would be limited (the court gave examples at paragraphs 15 and 17 of the types of submissions he would be prevented from making).

The court summarised the effect of these changes as being that “Mr. Kolicaj has been deprived of his British citizenship without at any stage being able to advance reasons why that should not happen”.

The court accepted that in section 40(2) cases “it is legitimate to operate a system in which the Secretary of State informs the person affected of the decision only after it is made because of the risk of renunciation of the other nationality”. However it rejected the Home Secretary’s argument that it would be “impossible, impractical or pointless to afford an opportunity to make representations at any stage because notice might cause the recipient to renounce their other nationality”.

It was suggested that when notifying a person of the deprivation decision the Home Secretary “should also say at that time that she is willing to review her decision by conducting a merits based evaluation in the light any representations or evidence which that person supplies”. Edis LJ said that these circumstances would displace the usual rule expressed at paragraph 60 of R (Balajigari) v Secretary of State [2019] EWCA Civ 673 (our write up is here) that “unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness”.

Underhill LJ also commented on this point, saying “I note what Edis LJ says at para. 29 about the possibility of operating a procedure under which a Deprivation Order is made but coupled with a simultaneous notification of a right of review. Certainly, a procedure of that kind may in some circumstances be enough to satisfy the requirements of fairness, as discussed in the passage which he cites from the judgment of the Court in Balajigari.”

The court concluded that “the Notice and the Deprivation Order was issued and maintained in a way which was procedurally unfair and must be quashed.”

On the Home Secretary’s appeal, the court upheld the appeal, saying that “I do not think it is possible to say that the Secretary of State was unaware she was exercising a discretion in making her decision”. However as the court had already found that the decision was procedurally unfair, success for the Home Secretary on this point did not help her.

Conclusion

I think it is safe to safe to say that the deprivation process is an absolute mess at the moment (this also being apparent from the recent ICIBI inspection) and changes needs to be made urgently and transparently. The court was damning of the process at paragraph 31:

It is not for the court to devise a procedure which would satisfy procedural fairness. As far as the documents which we have seen reveal, the Secretary of State has never given any thought to how the new way of dealing with section 40(2) decisions might be fairly operated, simply overriding the obligations of fairness in the interest of expediency. That is a surprising state of affairs which should receive immediate attention.

I checked the Home Office’s guidance on deprivation to see if any changes had been made relating to this decision, there have been none that I could see. What I did notice though, is that there is a separate section in the guidance on “Deprivation without giving notice“. This can be used in section 40(2) cases, but requires the Home Secretary to first make an application to the Special Immigration Appeals Commission which will review whether the reasons for not giving notice are obviously flawed.

It seems to me that the practice of giving an extremely short period of notice, as in Mr Kolicaj’s case, is a technical way of trying to circumvent the need to go to SIAC. Instead of not giving notice and going through the necessary steps and oversight of using that process, notice has instead been given in a way that makes it completely ineffective.

I may be entirely wrong, but it seems to me that the Home Secretary’s apparent habit of appealing all such cases without proper individual consideration of whether an appeal is actually a good idea has backfired here. If she had not appealed, would Mr Kolicaj have had any incentive to cross appeal the findings in relation to the broader point of the lawfulness of the notification process being followed for deprivation decisions, which the Court of Appeal then allowed? That does not seem a certainty to me, although this would surely have been eventually raised and dealt with in another case. The Home Secretary will presumably now try the Supreme Court.