24 Oct 2016, 50 mins ago


Am I British? Revocation of citizenship and other scenarios

The 2014 Immigration Act profoundly altered the appeals regime and drastically reduced the number of appealable immigration decisions.

At present, appeal rights exist in limited situations such as in the case of refusal of protection or human rights claims, EEA decisions and refusals of applications made before the 2014 Act came into force. It is also possible to appeal against Home Office’s decisions to deprive someone of his or her British citizenships.

Section 40(2) of the British Nationality Act 1981 allows the Secretary of State to deprive someone of their British citizenship if this is conducive to the public good. Generally deprivation happens when the individuals are abroad and appeals are usually heard in front of the Special Immigration Appeals Commissions.

Even if it may be difficult to succeed, individuals whose status has been revoked have the opportunity to challenge the Secretary of State’s decision to deprive them of their British citizenships. Furthermore, revocation has no retrospective effect but section 66(2) of the Immigration Act 2014 states that in certain circumstances the Secretary of State may take account of the manner in which a person conducted him or herself before this section came into force.

The British Nationality Act leaves third parties’ rights unaltered. For example, a child born abroad who has acquired British nationality because of her father’s British citizenship, will not lose her nationality if her father’s citizenship is revoked.

But another scenario exists where individuals have no right to appeal against the Secretary of State’s decision and where third parties’ rights are affected.

The Court of Appeal (Civil Division) has recently dealt with this situation in the case of Hysa & Ors, R (on the Application of) v Secretary of State for the Home Department [2015] EWCA Civ 1195.

This appeal concerned three Albanian nationals, who entered the UK and claimed asylum on the basis that they were from Kosovo and feared persecution in their country of origin. These individuals had provided false personal details such as name and/or date of birth, and they had all stated that they were from Kosovo instead of Albania.

Having been granted some form of leave, the appeallants eventually acquired indefinite leave to remain. In due course they all applied to be naturalised as British citizens and their applications were granted.

At some point, the fact that they had misrepresented themselves came to light, and “although the Secretary of State has a power under section 40 of the 1981 Act to make an order to deprive a naturalised British citizen of his citizenship, in relation to which there is a right of appeal under section 40A, she did not exercise that power in these cases”.

Instead, the Secretary of State wrote to each appellant to inform them that their naturalisation was ‘null and void’ by reason of having been obtained ‘by means of impersonation’ and that they were not, and never had been, British citizens.

In this scenario, the appellants had no right of appeal and therefore they commenced judicial review proceedings. Eventually the case reached the Court of Appeal.

The Court has decided that in fact the appellants are not British. This is because the Secretary of State granted citizenship to the (Kosovan) people whose details appear on their naturalisation certificates, and not to the (Albanian) individuals who had provided false information.

Stating that naturalisation is null and void, means that any rights acquired by third parties are also affected. This leaves children and other parties exposed, even if they did not take part to the fraud and were not aware of the impersonation.

Another anomaly is that the Secretary of State has decided not to revoke the appellants’ indefinite leave to remain, at least for the time being, even if arguably this form of leave was also acquired by impersonation.

It is unclear whether further steps will be taken in this regard, and in any event it is hoped that clarification will be given by the Secretary of State in complex situations like this, involving rights acquired by other parties who did not take part in any impersonation or fraud.