Luan Kaziu (1st Claimant) Agron Bakijasi (2nd Claimant) Dinjan Hysaj (3rd Claimant) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 26 March 2014 |
| Neutral Citation | [2014] EWHC 832 (Admin) |
| Docket Number | Case No: CO/7815/2013, CO/14160/2013 & CO/5725/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2014 |
[2014] EWHC 832 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/7815/2013, CO/14160/2013 & CO/5725/2013
Mr Stephen Knafler QC and Ms Sonali Naik (instructed by Appleby Shaw Solicitors) for the First Claimant and ( Duncan Lewis Solicitors) for the Second and Third Claimants
Ms Susan Chan (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 27 th February 2014
These three cases were heard together because of the common issues which they raise. All are Albanians who were naturalised as British citizens between 2004 and 2006. The Secretary of State has since discovered that, in their applications for naturalisation, they all lied about their nationality in claiming to be from Kosovo, two lied about their age, making one a minor on his claim for asylum, and one of those also lied about his name. She wrote to each saying that their naturalisation was in consequence a nullity.
They challenge those decisions first on the grounds that those admitted lies did not mean that they had impersonated anyone. Impersonation was the test for whether naturalisation was a nullity, rather than, as with other lies, providing grounds for deprivation of nationality, with its statutory right of appeal. The decided cases should be given a very narrow reading on this point, if they had not been wholly overtaken by changes in the statutory regime. Second, all three had Indefinite Leave to Remain, ILR, at the time of their applications for naturalisation, satisfied the statutory tests and so by definition were the persons to whom citizenship was granted.
The facts
Agron Bakijasi: he arrived in the UK in 1999 and claimed asylum. He gave a false name, false birth date, (though not one which made him a minor), and false nationality. He gave a false account of persecution in Kosovo. His claim was refused on the basis that it was safe for him to return to Kosovo in 2004; he applied for leave to remain under the Family ILR Exercise, using the same false details, and was granted ILR on 21 September 2005. Bakijasi does not contend that the false particulars were immaterial to the grant of ILR: the grant letter is headed with the false name, false date of birth and false nationality. He does contend that it was not determinative of the reasons for the grant by the Defendant. His first son, born in the UK in August 2003, with his birth registered in his father's false surname and his father's false nationality, was granted ILR as his dependant; Bakijasi applied on his behalf in the false surname.
Bakijasi applied for naturalisation in October 2006 using the same false details as to name, date of birth and nationality. He was naturalised on 30 November 2006, the certificate bearing the same false details. The standard certificate states that it does not certify the accuracy of the personal particulars.
He applied for his first son to be registered as a British citizen, using his false surname as the father, and giving his son's nationality as Kosovan. Bakijasi's second son, born in the UK in 2007, purportedly became a British citizen by birth, other than by descent. His birth certificate also gives the false surname and father's false nationality. They all have British passports on which they travel.
Bakijasi was untruthful in a number of other respects, in particular about the whereabouts of the mother of the children, an overstayer from 2001, but who returned to Albania with her two sons in 2007 in an attempt to regularise her immigration status. This led to the discovery of her husband's lies. Her appeal against the refusal of entry clearance, refused in May 2010 in part because of her immigration record and her own use of false documents, was allowed and in March 2011 she was granted a visa to return to the UK. She returned with the two children. She married Bakijasi, in his false name in 2011. On 9 October 2013 she was granted ILR.
On 28 October 2009, following an enquiry on behalf of Bakijasi, the UKBA wrote saying that action to deprive him of his nationality was possible but not likely since he had been granted ILR in the Family Exercise. On 18 February 2010 it wrote saying that the recommendation was against action being taken to deprive him of his nationality. On 19 March 2010, it wrote again saying that that remained the position but Tribunal decisions were awaited which would have a bearing on the decision; it was important that the bona fides of a case be determined.
On 27 June 2013, the SSHD wrote saying that Bakijasi was not and never had been a British citizen; his citizenship was a nullity. That is the decision now challenged by him. The letter explained that the delay in issuing this decision was caused by a number of appeals against deprivation decisions which delayed finalising the decision in this case. The decision not to deprive him of citizenship was because his case came within the policy for excluding certain cases from that process; here it was that he had been granted ILR under the "family amnesty". The letter continued:
"In addition, we also reviewed our policy on recognising a grant of citizenship as null and void based on current case law. The out come of this review is that it is possible that a grant of citizenship may, in some cases, be regarded as null and void if an individual has applied to naturalise using false particulars. In the light of the information now provided, the Secretary of State is satisfied that the naturalisation was obtained by mean of impersonation."
Consequently he had never been a British citizen and his certificate should be returned for cancellation. He reverted to his previous status of having ILR, but, warned the letter, the 2005 decision would be reviewed in the light of his conduct. His passport should be returned. The SSHD warned that she would defend robustly any judicial review. Ms Chan did not let her down.
It is, however, not disputed by the SSHD that the two children are British citizens, and she does not contend that nullifying his citizenship would nullify theirs. Nor does she contend that the grant of ILR to him was a nullity or would become a nullity, if his citizenship were held to be a nullity. She also accepts that at the time when he applied for naturalisation that he had ILR.
Dinjan Hysaj: he arrived in the UK and claimed asylum in July 1998, giving his true name but a false date of birth, making him a minor born in 1981, whereas he was born in 1977; he also alleged that he was from Kosovo, a citizen of the Federal Republic of Yugoslavia, where he claimed falsely that he had been persecuted. He was in fact Albanian. In May 1999, he was accepted as a refugee and granted ILR, which would not have happened had the Secretary of State known the true facts. In 2004, he applied for naturalisation using the same identity details, and was granted it on that same basis in November 2004. His deceit came to light in 2008 and he admitted it in September 2008, after being warned that the SSHD was considering depriving him of British nationality. He does not appear to have been told that this would not proceed. In 2011, he was sentenced to 5 years' imprisonment for causing grievous bodily harm. On 13 February 2013, the SSHD wrote to him saying that he was not and never had been a British citizen because the grant had been obtained by impersonation. The letter was in similar terms to the letter of 27 June 2013 to Bakijasi. On 8 April 2013, she served notice of intention to make a deportation order, and followed that up in November 2013 with a letter notifying him that she was considering cancelling his refugee status. But again it is not contended that the grant of ILR was a nullity or that the nullification of his nationality would prevent him reverting to that status.
He has a wife in Albania who has been seeking entry clearance since 2008; their son was born in Albania in 2010. The SSHD contends that the son is an Albanian citizen. She says that as the father never applied for the registration of his son as a British citizen by descent, he is not a British citizen. He could not now become one in that way if the father's nationality is nullified. Hysaj says that no application for registration was necessary and that his son is a British national. I do not need to resolve that particular issue. However, both are agreed that, by contrast with Bakijasi, the nullification of Hysaj's nationality would nullify the child's British nationality as well – if he had it in the first place. Hysaj accepts this because the child had never lived in the UK, had not been issued with a British passport and there were no exceptional circumstances.
Luan Kaziu: he was 16 when he arrived in the UK in 1998. He was recognised as a refugee who faced persecution in Kosovo as an ethnic Albanian, and was granted refugee status in 1998, and 4 years' limited leave to remain. He gave his true name and date of birth, but falsely claimed to be from Kosovo, when he was in fact an Albanian national. He also gave false family details, also claiming that he was born in Kosovo. He was granted ILR in 2003. There is a debate about whether he would have received four years' Exceptional Leave to Remain, ELR, in 1998 anyway as an unaccompanied minor who had no adequate reception facilities in his country of nationality; the SSHD's evidence was that he would have been...
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