A Supreme Court decision handed down today is good news for people who have had their British citizenship taken away because it was obtained under false pretences. The Home Office has accepted that in most cases, deprivation rather than nullity is the correct process. Deprivation gives people stripped of citizenship a full right of appeal and has less of a knock-on effect on their families if carried through.

Lady Hale’s judgment clarified that nullity – which means that the person losing citizenship never actually was a British citizen – will be appropriate when an applicant applies for citizenship impersonating another real person, who in turn has the characteristics required to get citizenship. The applicant never meets the requirements for citizenship; it is the person he or she has impersonated who meets the requirements. In that case, the Secretary of State would have granted citizenship to a person who never applied for it and therefore there could have been no grant of citizenship. The grant was a nullity.

By contrast, where people apply for citizenship using a false identity created by them, or adopt the identity of another and then go on to acquire the characteristics needed to obtain citizenship by using that identity, they can be deprived of that new citizenship but the grant of citizenship will not be null from the very beginning.

The Secretary of State appealed against herself

The case is R (Hysaj & Ors) v Secretary of State for the Home Department [2017] UKSC 82. The appellants were Albanian citizens who claimed asylum as Kosovars, and were granted indefinite leave to remain – and then naturalisation – using those false identities.

When she found out about the deception, the Secretary of State decided that the grants of citizenship were a nullity. The appellants were not and had never been British citizens, although they continued to have indefinite leave to remain.

The High Court and Court of Appeal upheld the Secretary of State’s decisions.

Interestingly, though, when the Supreme Court gave permission to appeal, the Secretary of State, who was the respondent, applied for the appeals to the Supreme Court to be allowed by consent. It was the Secretary of State who gave reasons as to why her decisions had been unlawful, which the Supreme Court just agreed with!

Deprivation v nullification: case law “took a wrong turning”

The law of deprivation and nullification of citizenship is covered in Colin’s  recent post. What is important to bear in mind is that nullification of British citizenship means that a person has never been a British citizen. Deprivation, on the other hand does not have a retroactive effect. The person was a British citizen but, after they are deprived of their citizenship, they are no longer British.

In her judgment, Lady Hale (or should we say the Secretary of State?) referred to four cases which built the law around deprivation and nullification:

• R v Secretary of State for the Home Department ex p Mahmood [1981] QB 58
• R v Secretary of State for the Home Department ex p Akhtar [1981] QB 46
• R v Secretary of State for the Home Department ex p Ejaz [1994] QB 496
• Bibi v Entry Clearance Officer, Dhaka [2007] EWCA Civ 740.

In her own words, with my underlining:

Having reviewed the matter after permission to appeal was granted in this case on 27 February 2017, the Secretary of State has come to the conclusion that the law took a wrong turning after Mahmood. The Mahmood type of case involves two real people, X and Y. X impersonates Y for the purpose of applying for citizenship. Y has the characteristics required for citizenship. Y is considered by the Secretary of State and is granted citizenship. But Y has never applied for it, may not want it, or may even be dead. Thus it cannot be said that citizenship has been granted either to Y or to X. Accordingly there was no grant of citizenship. Mahmood, in the Secretary of State’s view, remains good law. [16]

By contrast, in the later cases, X uses a false identity created by him (or someone on his behalf) and in that identity he acquires the characteristics needed to obtain citizenship. X applies for citizenship using the false identity Y. But X meets the requirements for citizenship albeit having acquired them by using the false identity Y. X is considered for citizenship by the Secretary of State in identity Y and is granted citizenship in that identity. In such a case, in the Secretary of State’s view, the grant of citizenship is valid, albeit that the person may later be deprived of it under section 40. Ejaz was rightly decided but Akhtar and Bibi were wrongly decided. [17]

“Section 40” is section 40 of the British Nationality Act 1981, which makes provision for the Secretary of State to deprive a person of citizenship if satisfied that it was obtained by means of “fraud, false representation or concealment of a material fact”.

Why is the appeal good news?

As the appeals were allowed, the nullification of the appellants’ citizenship will be overturned. However, they are still at risk of being deprived of their British citizenship. Why, then, is it good news?

First of all, if they are deprived of their citizenship, the appellants will have a right of appeal. In these cases, this will most likely be under section 40A of the British Nationality Act 1981, which is a “full merits appeal”.

The right of appeal could otherwise be under section 2 of the Special Immigration Appeals Commission Act 1997, on lawfulness grounds only, but only if the Secretary of State certifies that the decision was based on information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country or otherwise in the public interest. Such does not seem to be the case here.

Secondly, third parties are not affected by the deprivation decision whereas they would be in the case of nullity. The worst affected are usually children.

If they are born after their parent is naturalised as British, then they are British. However, if the parent was never British, then they would never have been British either. In contrast, if the parent is deprived of their citizenship, but were British at the time of their birth, the children will keep their British citizenship. This was precisely the case for the appellants’ children in this case.

Other affected parties could be partners who entered as the spouses of British citizens.

What’s next?

The Home Office will need to change the guidance which says that nullity action would be appropriate in circumstances where:

A: It is discovered that the applicant is not the intended recipient of the grant.

This could happen in the following ways:

a) the applicant has given false information or concealed information concerning their identity, for example by using a false name, giving a false date or place of birth, or claiming a false nationality or concealing their true nationality status. In this scenario, whether nullity action is appropriate will depend on the nature, quality and extent of any fraud, deception or concealment.

b) the applicant has created an entirely new false identity.

c) the applicant is using someone else’s identity (i.e. impersonation).

Only (c) will survive today’s decision, and only where the applicants themselves have not gone on to meet the requirements for citizenship (albeit they have done so on someone else’s identity).

For (a) and (b), the applicant should be liable to deprivation, but never nullification.

Finally, countless people have had their citizenship wrongly nullified. Will they need to challenge the nullification, or can it be assumed that nullification was never lawful and therefore they never lost their citizenship? Of course, they may still be deprived of their citizenship, but at least they will have a right of appeal against the decision, and their family members will not be affected.