Hysaj (Deprivation of Citizenship: Delay)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,O'Callaghan,Norton-Taylor UTJJ |
| Judgment Date | 19 March 2020 |
| Neutral Citation | [2020] UKUT 128 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 128 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President), O'Callaghan and Norton-Taylor UTJJ
Ms S Naik QC and Ms H Foot instructed by Oliver & Hasani Solicitors, for the Claimant;
Mr R Palmer QC and Ms J Smyth instructed by the Government Legal Department, for the Secretary of State.
Arusha and Demushi (deprivation of citizenship – delay) [2012] UKUT 80 (IAC); [2012] Imm AR 645
Aziz, Khan and Rauf v Secretary of State for the Home Department [2018] EWCA Civ 1884; [2019] WLR 266; [2019] ImmAR 264
BA (deprivation of citizenship: appeals) [2018] UKUT 85 (IAC); [2018] Imm AR 807
Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39; [2014] AC 700; [2013] 3 WLR 179; [2013] 4 All ER 533
Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 AC 115; [2008] 3 WLR 166; [2008] 4 All ER 1146; [2008] Imm AR 688; [2008] INLR 489
Bibi and Others v Entry Clearance Officer, Dhaka [2007] EWCA Civ 740; [2008] INLR 683
Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 439 (IAC)
EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159; [2008] 3 WLR 178; [2008] 4 All ER 28; [2008] Imm AR 713; [2008] INLR 516
Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931
Guardian News & Media Ltd, Re [2010] UKSC 1; [2010] 2 AC 697; [2010] 2 WLR 325; [2010] 2 All ER 799
Hesham AH (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109
JB (India) v Entry Clearance Officer [2009] EWCA Civ 234
Mousasaoui v Secretary of State for the Home Department [2016] EWCA Civ 50
O'Brien and Others v Independent Assessor [2007] UKHL 10; [2007] 2 AC 312; [2007] 2 All ER 833; [2007] 2 WLR 544
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591; [2015] 3 All ER 1015; [2015] Imm AR 950; [2015] INLR 593
R v Secretary of State for the Home Department ex parte Nahid Ejaz [1994] QB 496; [1994] 2 All ER 436
R v Secretary of State for the Home Department ex parte Parvaz Akhtar [1981] QB 46; [1980] 3 WLR 302; [1980] 2 All ER 735
R v Secretary of State for the Home Department ex parte Sultan Mahmood [1981] QB 59
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; [2009] 1 AC 453; [2008] 3 WLR 955; [2008] 4 All ER 1055
R (on the application of FH and Others) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin)
R (on the application of Gallaher Group Ltd and Others) v The Competition and Markets Authority [2018] UKSC 25; [2019] AC 96; [2018] 2 WLR 1583; [2018] 4 All ER 183
R fon the application of Gurung and Others) v Secretary of State for the Home department [2013] EWCA Civ 8; [2013] 1 WLR 2546; [2013] Imm AR 651; [2013] INLR 634
R (on the application of Hysaj) v Secretary of State for the Home Department [2017] UKSC 82; [2018] 1 WLR 221; [2018] 2 All ER 471; [2018] Imm AR 699; [2018] INLR 279
R (on the application of KV) v Secretary of State for the Home Department [2018] EWCA Civ 2483; [2018] 4 WLR 166
R (on the application of Kadria) v Secretary of State for the Home Department; R (on the application of Krasniqi) v Secretary of State for the Home Department[2010] EWHC 3405 (Admin)
R (on the application of Kaziu and Others) v Secretary of State for the Home Department [2015] EWCA Civ 1195; [2016] WLR 673; [2017] 1 All ER 380; [2016] Imm AR 329; [2016] INLR 343
R (on the application of Kaziu and Others) v Secretair of State for the Home Department [2014] EWHC 832 (Admin); [2015] 1 WLR 945; [2014] 4 All ER 133; [2014] Imm AR 919
R (on the application of Limbu and Others) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin)
R (on the application of Mowleed Mohammed Hussein) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin)
R (on the application of SC and Others) v Secretatary of State for Work and Pensions and Others [2019] EWCA Civ 615; [2019] 1 WLR 5687; [2019] 4 All ER 787
RS (Afghanistan) v Secretary of State for the Home Department [2016] EWCA Civ 1179
Secretary of State for the Home Department v R (on the application of Rashid) [2005] EWCA Civ 744; [2005] Imm AR 608; [2005] INLR 550
TN (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40; [2015] 1 WLR 3083; [2015] 4 All ER 34; [2015] Imm AR 1162; [2015] INLR 647
Young v Bristol Aeroplane Company Limited [1945] UKHL 2; [1946] AC 163
Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB)
Convention Relating to the Status of Refugees 1951, Articles 1 A(2) & 1C(3)
Borders, Citizenship and Immigration Act 2009, section 55
British Nationality Act 1981, Section 40 & 40A
British Nationality Act 1981, Section 20
Directive 2004/83/EC (“Qualification Directive”), Article 11(1)(c)
European Convention on Human Rights, Article 8
European Convention on Nationality, Article 7
Immigration Act 1971, sections 1(1) & 3
Immigration, Asylum and nationality Act 2006, section 56
Immigration Rules HC 395 (as amended), paragraphs 276A(a)(iv) & 339A(iii)
Supreme Court Rules 2009, rule 34(2)
Tribunal Procedure (Upper Triunal) Rules 2008, rule 15(2A)
Human rights — Article 8 of the ECHR — proportionality — reasonably foreseeable consequences — disruption in day-to-day life — public interest — immigration — citizenship deprivation — fraud and deception in acquiring citizenship — nullity doctrine — R (on the application of Hysaj)[2017] UKSC 82 applied — delay — historic injustice long residence — continuous residence broken bv custodial sentence — procedure and process — legitimate expectations no clear and unambiguous promise
The Claimant, a citizen of Albania, entered the United Kingdom in 1998 and claimed asylum. He provided his correct name but falsely claimed to be a citizen of the Federal Republic of Yugoslavia, resident in Kosovo. He presented himself as an unaccompanied minor born in 1981, when in fact he was an adult born in 1977. The Secretary of State for the Home Department accepted that the Claimant was a refugee and granted him indefinite leave to remain (“ILR”) in the United Kingdom. In 2004 the Claimant applied for, and was granted, British citizenship, using the same details he had provided in his protection claim. In 2007, he travelled to Albania and married an Albanian national. His wife applied for entry clearance to the United Kingdom. During interview, she disclosed the Claimant's true date and place of birth. As a result, the Secretary of State notified the Claimant that she was considering depriving him of his British citizenship. In 2011, the Claimant was sentenced to five years' imprisonment for wounding with intent to cause grievous bodily harm. In 2013, the Secretary of State wrote to the Claimant informing him that his grant of nationality was a nullity because he had used false details when making his application. She served notice of intention to deport him. The Claimant's wife was refused entry clearance but entered the United Kingdom clandestinely in 2014 with the couple's eldest child. Two further children were born in the United Kingdom.
The Claimant challenged the decision to declare his grant of British citizenship a nullity. His claim was unsuccessful before the Administrative Court and the Court of Appeal but the Supreme Court allowed his appeal by consent in R (on the application of Hysaj) v Secretary of State for the Home Department[2017] UKSC 82. The Supreme Court held that, following the case of R v Secretary of State for the Home Department ex parte Sultan Mahmood[1981] QB 58, which remained good law, the law on nullification of citizenship took a wrong turning and the cases of R v Secretary of State for the Home Department ex parte Parvaz Akhtar[1981] QB 46 and Bibi v Entry Clearance Officer[2007] EWCA Civ 740 must be overruled. It was agreed that, although the Claimant had used a false identity created by him, he had not impersonated anyone else, and thus the grant of British citizenship to him was valid.
In July 2018. the Secretary of State issued a decision to deprive the Claimant of British citizenship under section 40(3) of the British Nationality Act 1981 (“the 1981 Act”) on the ground that the exercise of deception had been material to the grant of citizenship. The First-tier Tribunal (“FtT”) dismissed the Claimant's appeal against that decision. The Claimant argued that the public interest in deprivation was reduced in his case due to historic injustice. He asserted that, had a decision been made under section 40(3) of the 1981 Act earlier, he could have benefited from a policy in Chapter 55 of the Nationality Instructions, which was withdrawn in August 2014, that the Secretary of State would not, in general, deprive a person of British citizenship if he had been resident in the United Kingdom for more than 14 years (“the 14-year policy”). The FtT dismissed that claim, finding that under the 14-year policy there was still an exercise of discretion on the Secretary of State's part. The FtT noted that the Claimant completed his 14 years residence at a time when he was serving a prison sentence, which might have militated against exercising discretion in his favour. The FtT held that, although the case had been ongoing for ten years, there had been no unreasonable or unaccountable delay on the Secretary of State's part and, whilst the nullity decision of 2013 was unlawful, the Secretary of State had acted in accordance with the law at the time. The FtT considered that the Claimant's deportation was not a reasonably foreseeable consequence of deprivation and concluded that there were no exceptional circumstances likely to result in a breach of his rights under Article 8...
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