R Hysaj v R Bakijasi and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Floyd,Lord Justice Kitchin |
| Judgment Date | 26 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1195 |
| Docket Number | Case No: C4/2014/1674, C4/2014/1675, C4/2015/0546 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 2015 |
[2015] EWCA Civ 1195
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
CO57252013, CO141602013, CO78152013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Lord Justice Floyd
and
Lord Justice Sales
Case No: C4/2014/1674, C4/2014/1675, C4/2015/0546
and
and
Mr Stephen Knafler QC & Ms Sonali Naik (instructed by Duncan Lewis Solicitors & Appleby Shaw Solicitors) for the Appellants
Mr Jonathan Moffett (instructed by Government Legal Department) for the Respondent
Hearing date: 12 November 2015
This is an appeal from the judgment of Ouseley J in which he decided that each of the three appellants, Mr Hysaj, Mr Bakijasi and Mr Kaziu, had not in fact become British citizens when issued with certificates by the Secretary of State purporting to register them as having citizenship by naturalisation. This was on the basis that they had fraudulently deceived the Secretary of State when they first came to this country and thereby obtained indefinite leave to remain ("ILR"), which they then relied upon when applying to become British citizens pursuant to the British Nationality Act 1981 ("the 1981 Act").
Although the appellants told various lies about themselves, the common theme in the three cases is that when they came to the United Kingdom they each fraudulently claimed that they were ethnic Albanians from Kosovo who faced persecution there and so should be granted asylum in the United Kingdom. In truth, however, each of them was a national of Albania with no entitlement to asylum. As Mr Knafler QC, who appeared on their behalf, correctly and sensibly acknowledges, these fraudulent claims represented a serious abuse of the right of refugee protection. Nonetheless, he submits, the Secretary of State has not addressed the frauds in the correct way.
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, when the Secretary of State discovered the frauds she wrote to each appellant to inform him that, relying on previous decisions of this court in relation to the earlier relevant statutory provision, section 20 of the British Nationality Act 1948 ("the 1948 Act"), his naturalisation was "null and void" by reason of having been obtained "by means of impersonation" and that he was not, and never had been, a British citizen.
No right of appeal arises in these circumstances, but the appellants brought these judicial review proceedings to challenge the Secretary of State's decision in each case to treat their naturalisation as being invalid. Their claim for judicial review having failed before Ouseley J, they now appeal to this court with permission granted by the judge.
The Facts
I gratefully adopt the helpful and succinct account of the facts of each case provided by Ouseley J in paras. [3]–[15] of his judgment, as follows:
"3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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."
9. 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.
10. 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.
11. 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.
12. 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...
To continue reading
Request your trial
-
Habte v Minister for Justice and Equality
...the obtaining of citizenship’ (at para. 57). Referring to the decision of the Court of Appeal in Hysaj and ors v. Secretary of State [2015] EWCA Civ. 1195 (a case concerned not with the statutory ground for revocation, but with the circumstances in which fraud will vitiate a grant of citiz......
-
Upper Tribunal (Immigration and asylum chamber), 2020-03-19, [2020] UKUT 128 (IAC) (Hysaj (Deprivation of Citizenship:Delay))
...Appeal (Kitchen, Floyd and Sales LJJ) held in R. (on the application of Kaziu and Others) v Secretary of State for the Home Department [2015] EWCA Civ 1195; [2016] 1 W.L.R. 673, at [30], that the High Court had been right to regard itself bound by the decisions in Mahmood and Akhtar. On a p......
-
R v HMRC and Kirklees Metropolitan Borough Council (HB & TC)
...Tribunal was to the effect that it had failed to have regard to the judgment of the Court of Appeal in R (Hysaj and others) v SSHD [2015] EWCA Civ 1195. The case was, in subsequently appealed to the Supreme Court. The Supreme Court gave judgment in R (Hysaj and others) v SSHD [2017] UKSC 82......
-
Upper Tribunal (Immigration and asylum chamber), 2020-03-19, DC/00035/2018
...Appeal (Kitchen, Floyd and Sales LJJ) held in R. (on the application of Kaziu and Others) v Secretary of State for the Home Department [2015] EWCA Civ 1195; [2016] 1 W.L.R. 673, at [30], that the High Court had been right to regard itself bound by the decisions in Mahmood and Akhtar. On a p......