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The reasonably foreseeable consequences of depriving someone of British citizenship


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The case of Muslija (deprivation: reasonably foreseeable consequences) [2022] UKUT 337 (IAC) makes it clear that the reasonably foreseeable consequences of deprivation of British citizenship do not include predicting the outcome of a subsequent human rights appeal.

The case concerns an Albanian national who obtained refugee status, and subsequently citizenship, by pretending to be Kosovan. Mr Muslija admitted his deception. The key issue was whether depriving him of his British citizenship would disproportionately interfere with his right to private and family life with his British wife and daughter.

Reasonably foreseeable consequences

The Court of Appeal has previously held that a “proleptic analysis” of removal should be avoided in deprivation cases.

I had no idea what “proleptic” meant until I looked it up after reading Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884, which introduced the word into the lexicon of deprivation appeals. You can read more about this case here.

If you’re in the same boat as me, fear not. the Upper Tribunal has helpfully provided a definition:

““Proleptic” in this context means an anticipatory analysis of an individual’s prospective removal or deportation.”

The dictionary definition is: the representation of a thing as existing before it actually does. The “thing” in this context is a decision which could lead to removal from the UK:

“At the time of the Secretary of State’s deprivation decision, and even during any appeal against such a decision, the individual concerned will remain a British citizen, and will not (and indeed, can not) have made a human rights claim; still less will the Secretary of State have taken a decision to refuse the claim.”

A decision depriving someone of their British citizenship doesn’t necessarily lead to removal. There is a two stage process. If a deprivation appeal is unsuccessful. First, the person will be deprived of their British citizenship and will become subject to immigration control. Secondly, the Home Office will decide whether to grant a visa to the person (for example on human rights grounds). If the visa is refused, there is a separate right of appeal.

At the first stage, only the “reasonably foreseeable” consequences of deprivation can be considered. This includes what will happen during the “limbo period” between the deprivation and a decision on whether a visa will be granted. It does not include considering the potential outcome of the second stage and the likelihood of removal. 

The First-tier Tribunal judge in Mr Muslija’s case failed to follow this approach. He considered whether the requirements of Appendix FM and section 117B(6) could be met and concluded that it was “extremely likely” that Mr Muslija would win a human rights appeal. He decided that removal was not a realistic ultimate outcome. Deprivation was therefore disproportionate and the appeal was allowed.  

This decision was overturned by the Upper Tribunal following an appeal by the Home Office. Speculation as to what the Home Office’s future decision would be, and the outcome of any appeal against that decision, is not permitted:

“The judge purported to decide the outcome of an appeal against a decision that was yet to be taken, by reference to an application that was yet to be made.”

This constituted a proleptic analysis of a chain of future events. This is outside the scope of a deprivation appeal.

Re-making the decision

The Upper Tribunal proceeded to re-make the decision and refused Mr Muslija’s appeal.

Mr Muslija concerns were summarised as follows:

“A significant part of the appellant’s concern was the potential loss of all that he has sought to build up in this country, having arrived at a relatively young age, ostensibly as an impoverished asylum seeker, subsequently battling cancer and establishing his own business to provide for his family… the Secretary of State’s decision would deprive him not only of his British citizenship, but also of his pride.”

The Upper Tribunal has previously held that the disruption deprivation of citizenship will cause to a person’s day-to-day life is a consequence of their own actions and, without more, the loss of rights previously enjoyed cannot tip the proportionality balance in favour of retaining the benefits of citizenship which were fraudulently obtained. The question in these cases therefore boils down to whether there is something more which tips the balance. This could be delay, the loss of the right to work, or the impact on the person’s child.

Mr Muslija’s case had all three. However, he was still unsuccessful.

He argued that it was unfair to deprive him of his citizenship in 2022, 11 years after he first disclosed his true identity to the Home Office in 2011. However, the delay was due to the Home Office’s misunderstanding of the law on nullity and deprivation rather than due to “culpable inaction”. This meant that the delay could not render the decision disproportionate (per Ciceri (deprivation of citizenship appeals: principles) Albania [2021] UKUT 238 (IAC) at paragraph 5 of the headnote).

Mr Muslija would lose the right to work, leading to financial hardship for him and his family. However, the Tribunal held that they are very unlikely to be destitute as his wife also has an income. The best interests of Mr Muslija’s daughter (referred to as M) favoured preserving the status quo however this did not outweigh the public interest:

“In our judgment, the impact to the family will be proportionate to the considerable public interest that attaches to upholding the integrity of the system by which foreign nationals are naturalised. The limbo period will be stressful for the family, but they will not be destitute. The impact to the appellant of the loss of all he considers he has worked so hard for counts for little, since it was built on the foundations of dishonesty. The impact on M will be limited, and her best interests are only marginally in favour of retaining the status quo. Length of residence alone is not a reason not to deprive a person of their citizenship. The cumulative weight of the factors militating in favour of the deprivation of the appellant’s citizenship outweigh M’s best interests for her father to remain British.” [85]

The appeal was therefore dismissed.

Tipping the balance

What, then, will tip the balance?

In relation to delay, culpable inaction by the Home Office may be sufficient. This tipped the balance in Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 (see [74], [77], & [80] and CJ’s write up of the case here).

In that same case, loss of the right to work was described as “a factor of real significance in his case”. This was not enough to tip the balance for Mr Muslija, however this does not prevent it from being sufficient in other cases. It may be sufficient, for example, where loss of the right to work will lead to destitution or where it is not possible for someone else to run the business during the limbo period.

Similarly, although not enough in Mr Muslija’s case, the best interests of a child may tip the balance in other cases. For instance, where uncertainty caused by the parent’s deprivation of citizenship would interfere with vital school exams, lead to a deterioration in the child’s mental health, or interfere with the child’s cultural identity and sense of self.

Bear in mind that the length of the limbo period may not be as short as the Home Office suggest it will be. A lengthy period of limbo will not, on its own, be enough. However if combined with destitution, irreparable damage to a business, or severe impact on a child, it may be sufficient.

Finally, remember to investigate statelessness. A person cannot be deprived of their British citizenship if it would make them stateless (British Nationality Act 1981, section 40(4)). This was not relevant in Mr Muslija’s case but it may be relevant in other cases.

The headnote says:

“(1) The reasonably foreseeable consequences of the deprivation of citizenship are relevant to an assessment of the proportionality of the decision, for Article 8(2) ECHR purposes. Since the tribunal must conduct that assessment for itself, it is necessary for the tribunal to determine such reasonably foreseeable consequences for itself.

(2) Judges should usually avoid proleptic analyses of the reasonably foreseeable consequences of the deprivation of citizenship. In a minority of cases, it may be appropriate for the individual concerned to demonstrate that there is no prospect of their removal. Such cases are likely to be rare. An example may be where (i) the sole basis for the individual’s deprivation under section 40(2) is to pave the way for their subsequent removal on account of their harmful conduct, and (ii) the Secretary of State places no broader reliance on ensuring that the individual concerned ought not to be allowed to enjoy the benefits of British citizenship generally.

(3) An overly anticipatory analysis of the reasonably foreseeable consequences of deprivation will be founded on speculation. The evidence available and circumstances obtaining at the time of making of the deprivation order (and the appeal against that decision) are very likely to be different from that which will be available and those which will obtain when the decision regarding a future application or human rights claim is later taken.

(4) Exposure to the “limbo period”, without more, cannot possibly tip the proportionality balance in favour of an individual retaining fraudulently obtained citizenship. That means there are limits to the utility of an assessment of the length of the limbo period; in the absence of some other factor (c.f. “without more”), the mere fact of exposure to even a potentially lengthy period of limbo is a factor unlikely to be of dispositive relevance.

(5) It is highly unlikely that the assessment of the reasonably foreseeable consequences of a deprivation order could legitimately extend to prospective decisions of the Secretary of State taken in consequence to the deprived person once again becoming a person subject to immigration control, or any subsequent appeal proceedings.”

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Iain Halliday

Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.