The Secretary of State for the Home Department v Gjelosh Kolicaj

Hearing dates: 11 December 2024

APPROVED JUDGMENT

This judgment was handed down remotely at 2:15pm on 17 January 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

This is an appeal by the Secretary of State for the Home Department, who was the Right Honourable Priti Patel MP at the material time, against a decision of the Upper Tribunal Immigration and Asylum Chamber (the UT). By that decision, the UT (Dove J and Mr. CMG Ockelton, President and Vice-President respectively of the UT) allowed an appeal by the Respondent (Mr. Kolicaj) in a reasoned decision published on 13 November 2023.

Mr. Kolicaj was deprived of his UK citizenship by an order (“the Deprivation Order”) made by the Secretary of State on 22 January 2021 under section 40(2) of the British Nationality Act 1981. The Deprivation Order said:-

“It is hereby ordered in pursuance of the notice issued by the Secretary of State for Home Affairs on 22 January 2021 that:

Gjelosh Kolicaj, born in Puke, Albania on 24 April 1981

Be deprived of his British citizenship on the grounds of conduciveness to the public good.

The Secretary of State is satisfied that Gjelosh Kolicaj will not be rendered stateless by such action.”

The notice (“the Notice”) referred to in the order was served on Mr. Kolicaj in prison on 22 January 2021 about half an hour before the Deprivation Order was served on him. He had been given no prior notice of the intention of the Secretary of State to make a deprivation order and he was not allowed any opportunity to make representations to the Secretary of State before she made her decision. The Notice is required by section 40(5) of the British Nationality Act 1981 before an order can be made. It is sometimes referred to as “the decision letter” because it is the only document which was served on Mr. Kolicaj prior to the making of the Deprivation Order and it is the document in which the Secretary of State sought to comply with her statutory duty to give reasons for making the Deprivation Order.

Mr. Kolicaj appealed against the Deprivation Order to the First Tier Tribunal (Immigration and Asylum Chamber) (FTT) which dismissed his appeal by a reasoned decision promulgated on 5 May 2022. The FTT comprised Resident Judge Holmes and FTT Judge Hughes. The UT allowed Mr. Kolicaj's appeal against that order and it is that decision which is now the subject of this appeal.

The issues on appeal

Although more issues were raised before the FTT and the UT, this appeal concerns three points:-

i) The Secretary of State has permission, granted by Falk LJ, to advance one ground of appeal in these terms:-

“The UT erred in law in finding that the Secretary of State, when making her decision to deprive Mr. Kolicaj of his British citizenship, was unaware that she had a discretion to exercise, and accordingly that she failed to take into account any of the matters relevant to the exercise of her discretion.”

ii) In a Respondent's Notice Mr. Kolicaj seeks to uphold the decision of the UT on two grounds which, he says, were wrongly rejected by both the FTT and the UT on appeal. These are:-

a) The Deprivation Order was made following a process which was procedurally unfair because Mr. Kolicaj was not allowed any opportunity to make representations to the Secretary of State before she made her decision.

b) The Deprivation Order was unlawful because it was made by the application of a policy which was not published and not made available to Mr. Kolicaj until 23 March 2022. The suggested policy document is a submission by Ms. Fiona Johnstone dated 13 May 2020, more fully described below. That was disclosed shortly before the hearing in the FTT and this disclosure was the result of a request for disclosure on his behalf. The request was made because earlier disclosure, on 18 February 2022, had been given of the official advice which had been placed before the Secretary of State when she decided to make the Deprivation Order. That advice was contained in a submission by Mr. Steve Parsons with annexes which is dated 17 December 2020 and which referred to Ms. Johnstone's earlier document.

The background facts

Given the nature of the issues we have to deal with, the facts of the case can be quite briefly summarised.

Mr. Kolicaj is, or was, a dual Albanian/UK national. He came to the UK in 2005 and was naturalised as a British citizen on 5 February 2009. He married an Albanian national in 2013 and they live in the United Kingdom with their four British children. At the date of the Deprivation Order she had applied for further leave to remain on the basis of her marriage to a British citizen, but that had not been determined. Mr Kolicaj was her sponsor and if the Deprivation Order was sustained her application on that basis would fall away. At the time of the Deprivation Order they had two children, born in 2013 and 2015.

On 27 February 2018 Mr. Kolicaj pleaded guilty in the Crown Court at Kingston to conspiracy to remove the proceeds of criminal conduct from England and Wales contrary to section 1(1) of the Criminal Law Act 1977. The substantive offence was contrary to section 327(1)(e) of the Proceeds of Crime Act 2002. The case arose from an investigation by the National Crime Agency into an organised crime group which was involved in high value money laundering. Large quantities of cash were transported in suitcases on flights from the UK to various European countries for ultimate delivery into Albania. Mr. Kolicaj was an organiser of these transports and directed and controlled the couriers who took the suitcases. The judge in the Crown Court imposed a sentence of 6 years' imprisonment having determined that the proper sentence, before a 25% discount for the guilty plea, was 8 years. She found that Mr. Kolicaj was a leading figure in this money laundering exercise which had involved multiple journeys by couriers, in the course of which it was estimated that £8m or thereabouts was removed from England and Wales and transported onwards to Albania. Mr. Kolicaj himself had made journeys to Albania immediately after some cash seizures by law enforcement authorities, and this was said to show his managerial role in the operation. He had used his UK passport in this operation. One of these trips took place after he himself had been arrested in the UK and released. This level of determination to continue offending was later relied upon by the National Crime Agency as indicating that it was likely that he would continue to pose a risk following completion of his sentence. That assessment was one of the Annexes to Mr. Parsons' December 2020 submission to the Secretary of State about Mr. Kolicaj's case.

The Secretary of State's decision

The events which culminated in the Deprivation Order occurred while Mr. Kolicaj was in prison, approaching the point at which he would be released under licence after serving half his sentence.

i) On 13 May 2020 Fiona Johnstone, a Home Office official, wrote the ministerial submission to the Secretary of State entitled “Deprivation of British Citizenship” which recommended that the Home Office should “use the deprivation power [arising under section 40(2) of the 1981 Act] against people guilty of serious organised crime, but limit its use to the most serious and high profile cases.” Until this point, although Chapter 5 of the published Home Office Nationality Instructions issued by the Secretary of State as a guide to decision makers had defined “conduciveness to the public good” as “depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours”, we understand that this power had not in practice been regularly used in cases of serious organised crime. The facts in Aziz v. Secretary of State for the Home Department [2018] EWCA Civ 1854; [2019] 1 WLR 266 ( Aziz) show that the Secretary of State in 2015 gave a notice relying on “serious and/or organised crime”, see [9] per Sales LJ. No doubt Ms. Johnstone's advice was designed to extend the use of the published policy to more cases of serious organised crime. The Secretary of State accepted the advice given, which meant that thereafter the previously published policy would be applied in such cases, although only to the most serious and high-profile cases.

ii) On 19 October 2020 the National Crime Agency wrote to the Secretary of State inviting her to use her powers under section 40(2) of the British Nationality Act 1981 to deprive Mr. Kolicaj of his British citizenship and to consider subsequently deporting him to Albania. It set out the facts of his offending and some information about his family circumstances. The letter was written before the decision of the Supreme Court in R (Begum) v. SIAC [2021] UKSC 7; [2021] AC 765 which was handed down on 26 February 2021, by which time the Secretary of State had made the decision to issue the Deprivation Order, which had been served on Mr. Kolicaj. The NCA letter contained the assessment of risk referred to at [8] above, reviewed Mr. Kolicaj's private life and concluded:-

“Consideration has been given to the private life that Gjelosh KOLICAJ has...