Bujar Laci v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Newey LJ,Baker LJ
Judgment Date20 May 2021
Neutral Citation[2021] EWCA Civ 769
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2019/1314
Date20 May 2021
Between:
Bujar Laci
Appellant
and
The Secretary of State for the Home Department
Respondent

[2021] EWCA Civ 769

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lord Justice Newey

and

Lord Justice Baker

Case No: C5/2019/1314

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM:

UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)

Lord Uist and UTJ Canavan

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Manjit Gill QC and Mr Ahmad Badar (instructed by Connaughts Law) for the Appellant

Mr Zane Malik QC (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 21 st January 2021

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

This appeal arises out of a decision by the Secretary of State, pursuant to section 40 of the British Nationality Act 1981, to deprive the Appellant of his British citizenship on the ground that he had obtained it by fraud: in short, he had applied for naturalisation on the basis that he was a Yugoslav national from Kosovo whereas he was in fact Albanian. The First-tier Tribunal (“the FTT”) allowed the Appellant's appeal against that decision, but the Upper Tribunal (“the UT”) in turn allowed an appeal by the Secretary of State. The Appellant appeals to this Court with permission granted by McCombe LJ. He is represented before us by Mr Manjit Gill QC, leading Mr Ahmad Badar. The Secretary of State is represented by Mr Zane Malik QC.

2

The appeal initially anonymised the Appellant's name, in accordance with this Court's usual precautionary practice in immigration cases. There are no grounds for maintaining that anonymity, and the appeal should have been de-anonymised following the grant of permission. By an oversight that did not occur, and the appeal was listed as “BL (Albania)”, but at the start of the hearing we directed, without objection from Mr Gill, that the anonymity should be lifted.

THE FACTS

3

The Appellant was born in Guri Bardhë in Albania in April 1983, to Albanian parents. In August 1989, when he was aged sixteen, he came to the UK, under an arrangement made by agents, in order, he says, to escape the lawlessness and unrest then prevalent in Albania. He claimed asylum on the basis that he was a Yugoslav national from Kosovo and was fleeing from persecution by the Yugoslav authorities. He claimed to have been born on 5 November 1985 and thus to be aged fourteen. His evidence to the FTT was that he felt that it was wrong to put forward a false story but that he was young and scared and under the influence of the agents, who told him what to say.

4

The Appellant's asylum claim was refused, but in accordance with the policy then in place he was granted exceptional leave to remain to 29 February 2004. On 17 April 2004 he was granted indefinite leave to remain.

5

On 16 May 2005 the Appellant applied for British nationality, which was granted on 22 August 2005. In his application (and in the previous application for ILR) he again gave the same false date of birth and details of his nationality that he had given when he applied for asylum. He also gave false details about his parents' nationality. His evidence to the FTT was that he felt locked in to the lies that he had told originally. He says in his witness statement that he was very ignorant and naïve at the time but that he now understands the seriousness of his deception and that there is no excuse for it.

6

On 17 February 2009 the UK Border Agency wrote to the Appellant saying that the Secretary of State had reason to believe that he had obtained his status as a British citizen by fraud and that she 1 was considering whether he should be deprived of his nationality under section 40 (3) of the 1981 Act. It asked him to provide any evidence

that he was in fact born in Kosovo and any other matters which he wished the Secretary of State to take into account in reaching a final decision. UKBA's letter does not state the basis of its (correct) belief that the Appellant had obtained his naturalisation by fraud, but it was common ground that it derived, albeit rather late, from information supplied two years previously by his mother in support of an application (which was granted) for entry clearance to visit him in the UK. His evidence in the FTT, which appears to have been accepted (see para. 43 below), was that both he and his family had been unhappy about his having given false details in order to claim asylum and thereafter, but that he did not know how to go about disclosing the truth; and that he accordingly agreed that his mother should supply his correct details with her application “and then we would see what happens”. That falls a long way short of making a clean breast of his deception, but the fact remains that he was responsible for providing the information that led to it being discovered
7

The Appellant's then solicitors replied to UKBA on 17 March 2009. They admitted what he had done but advanced the arguably mitigating circumstances noted above, together with other reasons why the Secretary of State ought not to deprive the Appellant of his citizenship notwithstanding the deception.

8

Remarkably, the Appellant heard nothing further from the Home Office for nine years, and he got on with his life on the basis that a decision had been taken not to pursue the matter. As he put it in his witness statement in the FTT, “months and years went by and I believed the Home Office was not taking any further action”. He had since 2006 worked for the London Borough of Islington as a payroll officer. He continued in that role (as he does to this day) and obtained a qualification from the Association of Accountancy Technicians. In due course he became a senior payroll officer, and an excellent reference from the Deputy Payroll Manager was in evidence before the FTT. In April 2014 he bought a flat in London. In 2016 he applied for and was issued with a new British passport following the expiry of his original one.

9

In June 2013 the Appellant married an Albanian national who was studying in the UK. In March 2018 she was granted indefinite leave to remain, following an application in which she gave the Appellant's correct date and place of birth. Also in March 2018 they had a son. He is a British national by virtue of the Appellant's nationality. (I mention for completeness that they have recently had another child, but that is not relevant to the issues before us.)

10

On 28 February 2018, the Home Office wrote to the Appellant, out of the blue, again notifying him that the Secretary of State was considering depriving him of his British citizenship on the basis that it had been obtained by fraud and asking him for any further information that he wished her to take into account in reaching a final decision. It makes no reference to UKBA's letter of 17 February 2009 or to his solicitors' then reply. (It also contains a paragraph stating that if he was deprived of his British nationality he would not be able to resume his previous refugee status; but that is misconceived since he had been refused asylum.)

11

The Appellant's (new) solicitors replied on 21 March 2018 advancing arguments against the deprivation of his citizenship.

12

On 9 April 2018 the Home Office wrote the Appellant a further letter in mostly the same terms as the letter of 28 February, to which, and to his solicitors' reply, strangely it makes no reference. The letter does, however, refer to the correspondence in 2009. It says that the Appellant's solicitors' letter of 17 March 2009 would be considered, but that an opportunity was being given to him to provide further information because of the passage of time. In that context it refers to the fact that the “finalisation” of decisions in cases under section 40 (3) had been “impacted” by the need to monitor a number of appeals in other such cases which had been lodged in October 2009 and had only been finally determined in the Supreme Court in December 2017. This is a reference to the Hysaj group of cases to which I will refer later and is evidently intended as an explanation of the delay.

13

On 22 June 2018 UK Visas and Immigration (“UKVI”) wrote to the Appellant giving formal notice, pursuant to section 40 (5) of the 1981 Act, of the Secretary of State's decision to deprive him of his British citizenship under section 40 (3). It is against that decision that the Appellant appealed to the FTT.

14

UKVI's letter itself did not constitute the formal deprivation, which under the scheme of the legislation would be the subject of a separate order following the exhaustion of appeal rights. Paras. 25–27 explain the process:

“25. Once deprived of citizenship you become subject to immigration control and so may be removed from the UK or prevented from returning to the UK if deprivation action occurs whilst you are abroad. Consideration may also be given on [sic] whether a limited form of leave be [sic] given. A decision on this matter will follow once the deprivation order is made.

26. In order to provide clarity regarding the period between loss of citizenship via service of a deprivation order and the further decision to remove, deport or grant leave, the Secretary of State notes this period will be relatively short:

• a deprivation order will be made within four weeks of your appeal rights being exhausted, or receipt of written confirmation from your representative that you will not appeal this decision, whichever is the sooner.

• within eight weeks from the deprivation order being made, subject to any representations you may make, a further decision will be made either to remove you from the United Kingdom, commence deportation action (only if you have less than 18 months of a custodial sentence to serve or has [sic] already been released from prison), or issue leave.

27. The effects of deprivation action on you and your family members must be weighed against the...

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  • Upper Tribunal Guidance On Deprivation Of British Citizenship Appeals
    • United Kingdom
    • Mondaq UK
    • 1 November 2022
    ...on those, following Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 128 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769. Upper Tribunal's The grounds of appeal were categorised as substantive challenges against the Judge's decision-making, applying the princi......

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