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Hysaj and others v. Secretary of State for the Home Department - (21 Dec 2017)

Secretary of State can deprive a person of citizenship, if satisfied that grant was obtained by means of fraud, false representation or concealment of a material fact


Appellant obtained British citizenship using a false name, a false date of birth, a false nationality and a false place of birth. When these frauds came to light, the Secretary of State decided that, in each case, the grant of citizenship was a nullity, so that the appellants were not, and never had been, British citizens. The issue is whether the misrepresentations made by the Appellants in their applications for United Kingdom citizenship made the grant of that citizenship a nullity, rather than rendering them liable to be deprived of that citizenship under Sections 40 and 40A of the British Nationality Act, 1981.

Section 6(1) of the British Nationality Act, 1981 provides that, “If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”

Section 40 of the 1981 Act makes provision for the Secretary of State to deprive a person of citizenship obtained by registration or naturalisation if satisfied that the registration or naturalisation was obtained by means of “fraud, false representation or concealment of a material fact”. On the face of it, fraud or false representation would include the sort of misrepresentations as to identity made by the appellants, so that, if the Secretary of State sees fit, they could be deprived of their citizenship under that provision. Section 40A makes provision for a right of appeal against most such deprivations to the First-tier Tribunal.

The law took a wrong turning after R v Secretary of State for the Home Department ex p 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.

The subsequent cases including R v Secretary of State for the Home Department ex p Akhtar, Bibi v Entry Clearance Officer, and the present one were based on the principle that there is a category of fraud as to identity which is so serious that a purported grant of citizenship is of no effect, but had not articulated a clear definition of such fraud. This uncertainty means the law is difficult to apply in practice and also gives rise to a number of illogical and unsatisfactory consequences.

Present court agrees with the reasoning now put forward by the Secretary of State. It follows that, the decisions of the Court of Appeal in Akhtar and Bibi must be overruled and that this appeal must be allowed by consent.


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