- BY Sonia Lenegan
Deprivation of British citizenship without advance notice is lawful, says Upper Tribunal
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The Upper Tribunal has held that it is lawful for the Home Secretary to deprive a person of their British citizenship without notice, in this case because of a concern that the second nationality would be renounced. Renunciation would have meant that deprivation of British citizenship would be at risk of being held unlawful as it would have left the appellant stateless. The case is Kolicaj (Deprivation: procedure and discretion) Albania [2023] UKUT 294 (IAC). The appellant was notified that he had been deprived of his citizenship on the same day that he had been notified that it was under review due to his criminal conviction.
The headnote summarises the decision as follows:
1. The requirements of procedural fairness are highly fact-sensitive but will normally require that the Secretary of State notifies an individual that she is minded to deprive them of their citizenship, so as to afford them an opportunity to make representations. The Secretary of State might lawfully dispense with that step, however, where there is proper reason to believe that the individual would attempt to frustrate the process upon receipt of such notification.
2. Where the Secretary of State seeks to deprive a person of British citizenship under s40(2) of the British Nationality Act 1981, she may lawfully dispense with the ‘minded-to’ step where there is a clear and obvious risk of the individual renouncing any other citizenship so as to render themselves stateless and engage the statelessness proviso in s40(4).
3. The power to deprive a person of their citizenship under section 40 of the 1981 Act and the jurisdiction on appeal under section 40A were explained in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 235 and Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC). Where the Secretary of State determines that the condition precedent for exercising that power is made out, she must then exercise her discretion as to whether to deprive that person of their British citizenship in the light of all the circumstances of the case. It follows that even if the decision of the Secretary of State in relation to the condition precedent is free of public law error, the decision might nevertheless be unlawful where she fails to exercise her discretion, or where the exercise of that discretion is itself tainted by public law error.
The appeal was allowed in this case, not because of the lack of notice given but because of deficiencies in the reasons provided by the Home Secretary on her use of discretion in making the deprivation decision. An onward appeal against the findings about the need to give notice and an opportunity to make representations against a decision to deprive may be unlikely as a result. For now, the Home Secretary has been given the green light to make deprivation decisions in this way and it is not difficult to imagine that we may see an increase in no notice deprivation decisions.
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