Secretary of State for the Home Department v Mr Xhevdet Daci

Hearing date: 12 December 2024

Approved Judgment

This judgment was handed down remotely at 2.15pm on 17/01/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This appeal by the appellant Secretary of State for the Home Department raises an issue about whether the Secretary of State had exercised the discretion provided by section 40(3) of the British Nationality Act 1981 (BNA 1981), and had provided sufficient reasons for the exercise of that discretion, when deciding, by letter dated 2 August 2021, to deprive the respondent Mr Daci of his citizenship.

The First-tier Tribunal (Immigration and Asylum Chamber) (FTT) had, by a decision dated 25 April 2022, allowed an appeal by Mr Daci against the Secretary of State's decision dated 2 August 2021 on the basis that it could not be said that Mr Daci had obtained his citizenship by means of his admitted fraud. The Upper Tribunal (Immigration and Asylum Chamber) (UT) set aside the decision of the FTT in a decision dated 21 August 2023. The UT then remade the decision on 5 March 2024, and allowed Mr Daci's appeal against the decision dated 2 August 2021, on the basis that the Secretary of State had failed to exercise the statutory discretion set out in section 40(3) of the BNA 1981 properly because there had been no consideration of relevant factors.

This appeal was heard by the same constitution of the Court of Appeal who heard the appeals of Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16 ( Chaudhry) and Kolicaj v Secretary of State for the Home Department [2025] EWCA Civ 10 ( Kolicaj) in the weeks of 2 and 9 December 2024. Chaudhry was another appeal following a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981 and the parties in this appeal and in Chaudhry helpfully produced a joint bundle of authorities and co-ordinated submissions on matters of principle, which related to the test to be applied by the FTT when hearing an appeal from a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981. Kolicaj was an appeal following a decision of the Secretary of State made pursuant to section 40(2) of the BNA 1981.

The issue about the test to be applied by the FTT when hearing an appeal from a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981 involves consideration of the judgment of the Supreme Court in R(Begum) v Special Immigration Appeals Commission [2021] AC 765 ( Begum (No.1)) and the judgments of Upper Tribunal (Immigration and Asylum Chamber) (UT) in Ciceri (deprivation of citizenship appeals: principles) v Secretary of State for the Home Department [2021] UKUT 238 (IAC); [2021] Imm AR 1909 ( Ciceri) and Chimi v Secretary of State for the Home Department (deprivation appeals; scope and evidence) [2023] UKUT 115 (IAC); [2023] Imm AR 1071 ( Chimi).

In Chaudhry it was decided, for the reasons set out in that judgment, that the proper approach to appeals under section 40A of the BNA 1981 from decisions of the Secretary of State made pursuant to section 40(3) of the BNA 1981 is: (i) it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981; (ii) the decision of the Secretary of State on the causation issue whether the registration or naturalisation was obtained by the impermissible means is to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); (iii) the exercise of the Secretary of State's discretion to make an order depriving a person of citizenship status is to be reviewed on appeal by the FTT on public law grounds in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); and (iv) it is for the FTT to consider whether the Secretary of State had acted in breach of other relevant legal obligations, including those arising under section 6 of the Human Rights Act 1998, although due weight would need to be given to the findings, evaluations and policies of the Secretary of State.

In this appeal it was common ground before the FTT, the UT, and this court that, as a matter of fact, Mr Daci had committed fraud when applying for citizenship because he had used a false name, date of birth and nationality.

Factual background

Mr Daci was born on 13 March 1981, and he is a citizen of Albania. Mr Daci entered the UK on 25 July 1998 and claimed asylum on 28 July 1998. At that time Mr Daci was aged 17 years and 4 months. Mr Daci gave a false name “Xhevdet Dani” and claimed to be a national of Kosovo. He also gave a false date of birth as 20 December 1981. Mr Daci gave a false account of his life, claiming that he had been persecuted and abused by Serbian police who had also threatened to kill him. He said that his father (who was then still alive in Albania) had died of a heart attack as a result of a police raid.

Mr Daci became 18 years old on 13 March 1999. On 24 May 1999 Mr Daci was granted indefinite leave to remain as a refugee. On 10 December 1999, Mr Daci applied for, and was in due course granted, a Home Office Travel Document in the false identity of Dani, having claimed that he could not approach his own authorities because he was a refugee.

On 11 May 2004 Mr Daci applied to naturalise as a British citizen in the false identity of Dani. Mr Daci gave false information that he was a national of Kosovo, and that his date of birth was 20 December 1981. Mr Daci was asked on the form if he had ever engaged in any other activities which might indicate that he was not a person of good character, and he ticked the “No” box. Mr Daci signed a declaration confirming that the information he had given was correct. There was a warning on the form that giving false information, knowingly or recklessly, was a criminal offence.

The Secretary of State's good character guidance, applicable at the time in Annex D to Chapter 18 of the Nationality Instructions, stated that an applicant would not be considered to be of good character if they had practised deceit in their dealings with the Home Office.

On 23 June 2004 Mr Daci became a British citizen, albeit in the false name of Mr Dani. In May 2020, it came to the Home Office's attention that Mr Daci might have naturalised in a false identity. Further checks were conducted, which revealed his identity as Mr Daci.

On 24 May 2021, Mr Daci was informed that consideration was being given to depriving him of his British citizenship. Mr Daci made representations to the effect that he should not be deprived of citizenship by letter dated 14 June 2021. By letter dated 2 August 2021, having considered those representations, the Secretary of State decided to deprive Mr Daci of his citizenship.

The letter dated 2 August 2021

As the grounds on which the UT allowed the appeal when remaking the decision were based on the approach to discretion set out in the letter dated 2 August 2021, it is necessary to set out material parts of the letter. The letter started by recording that Mr Daci had been issued with a certificate of naturalisation as a British citizen on 23 June 2004, referring to the investigations carried out by UK Visas and Immigration. It was stated that following the investigation and on the basis of evidence presented the Secretary of State “has decided that your British citizenship was obtained fraudulently. The Secretary of State has decided that you should therefore be deprived of British citizenship for the reasons outlined below”.

The letter went on to outline the facts, and record that the information was put to Mr Daci in a letter dated 24 May 2021 and that Mr Daci had responded through representatives on 14 June 2021. That letter was analysed as making representations to the effect that: Mr Daci was a minor when entering the UK and could not be regarded as complicit in the deception; he had attained 14 years of residence in the UK by 2012 and so had deprivation action taken place promptly he would have benefited from the 14 year policy; referred to the impact of the nullity legislation and the delay caused to deprivation decisions which had caused Mr Daci to suffer; and raised a claim under article 8 of the European Convention of Human Rights (ECHR), given domestic effect by the Human Rights Act 1998.

The Secretary of State referred to the point raised in mitigation to the effect that he was a minor when entering the UK. Reference was made to Chapter 55 of the Nationality Instructions, which I will refer to as “the relevant policy”. The Secretary of State accepted that Mr Daci was a minor when he came to the UK and made his false asylum claim, but pointed out that he had been an adult for over two months before he acquired indefinite leave to remain, and had also had opportunity to set the record straight. The Secretary of State dealt with Mr Daci's claim that an interpreter advised him to give false details and noted the absence of details of the interpreter and evidence. The Secretary of State considered it unlikely...