An Albanian man who secured his British citizenship by fraud must be allowed to keep it because of the Home Office’s inexplicable nine-year delay in taking action after it found out, the Court of Appeal has held. The judgment in Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 also untangles and explains some of the previous case law about deprivation of citizenship on the basis of deception.

The Kosovar refugee who wasn’t

Bujar Laci was born in Albania in 1983. Aged 16, he came to the UK and claimed asylum, claiming to be from Kosovo and giving a fake date of birth. He was allowed to stay and became a British citizen in 2005.

Mr Laci and his family had always been uneasy about giving false details to the British authorities and decided to come clean, albeit in a roundabout way. When, in 2009, his mother applied for a visa to come and visit him, they decided to put down his real personal details. “And then”, Mr Laci recalled, “we would see what happens”.

What happened was that the Home Office wrote to Mr Laci to charge him with obtaining his British citizenship by fraud and to give him notice that it was considering depriving him of that citizenship under section 40(3) of the British Nationality Act 1981:

The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a) fraud,

(b) false representation, or

(c) concealment of a material fact.

Mr Laci’s solicitors replied, asking the Home Office not to. There was then radio silence for nine years, during which time Mr Laci “got on with his life on the basis that a decision had been taken not to pursue the matter”. His British passport was even renewed without incident in 2016.

In 2018, the Home Office returned to the matter “out of the blue” and made a decision to take Mr Laci’s citizenship away as originally contemplated almost a decade previously. Mr Laci appealed, won in the First-tier Tribunal but lost in the Upper. The case thus reached the Court of Appeal.

Untangling the case law

The Court of Appeal had first to sort out how closely judges are allowed to scrutinise the Secretary of State’s decision to use the section 40(3) deprivation power, the case law on this having “developed in a rather unsatisfactory way”. The problem was that several previous judgments had pronounced on the issue without reference to one another:

• First the Upper Tribunal in BA [2018] UKUT 85 (IAC);
• Then the Court of Appeal in Aziz [2018] EWCA Civ 1884, without referring to BA;
• Then a different Court of Appeal in KV (Sri Lanka) [2018] EWCA Civ 2483, referring to BA but not to Aziz

To cap it all, in the present appeal, the First-tier Tribunal was not referred to Aziz and the Upper Tribunal to neither Aziz nor KV (Sri Lanka). Lord Justice Underhill, in a measured post-script, comments that it would be nice if lawyers arguing such cases, but in particular those representing the Home Office, could make sure to “apprise judges of the relevant law”.

Underhill LJ went on to review the cases in the round, concluding that the statement of principles in paragraphs 45(4) and 45(5) of BA is basically right, but has been modified somewhat by the later cases. His judgment, and in particular paragraphs 21-40, will therefore need to be read carefully by those preparing future deprivation of citizenship appeals.

Nine-year delay fatal to deprivation attempt

Returning to the matter at hand, the Court of Appeal first found that the Upper Tribunal had got it wrong in various ways. Counsel for the Home Office nevertheless urged that the deprivation decision be upheld: whatever the fine details of the reasoning, the “only decision to which [the Upper Tribunal] could properly have come on the facts of the present case was that the Appellant should be deprived of his citizenship”. Underhill LJ was attracted by this back-to-basics approach, saying:

In all ordinary cases deprivation of citizenship will indeed be the inevitable outcome of a finding that it was obtained by deceit: see para. 37 above. The Appellant can muster a number of points in his favour, but most of them could not, whether by themselves or cumulatively, outweigh the obvious strong public interest in depriving him of a status of fundamental importance to which he was not entitled.

But this was not an ordinary case, and there was one point in Mr Laci’s favour that was strong enough to outweigh the public interest in removing his citizenship: the nine-year delay. It was “obviously unfair” for the Home Office to drop the matter for that length of time but then turn around and pursue deprivation. During the hiatus Mr Laci had, among other things, bought a flat, got married and had his first child. (Although nothing is made of it in the judgment, it appears from the chronology that the 2018 notice about the renewed deprivation proceedings landed just days before the birth of his son.) 

Underhill LJ concluded:

On balance, and not without hesitation, I would accept that the FTT was entitled to regard the Secretary of State’s inaction, wholly unexplained at the time and for so extraordinarily long a period, as sufficiently compelling, when taken with all the other circumstances of the case, to justify a decision that the Appellant should not be deprived of his citizenship.

This was not, he emphasised, some “indulgent view” of citizenship obtained by lying. It will still take something special to snatch citizenship from the jaws of fraud.