Jurgen Deliallisi v The Secretary of State for the Home Department

An appeal under section 40A of the British Nationality Act 1981 is a full merits appeal. Unless the legislation clearly requires otherwise, the Tribunal must re-exercise the Secretary of State’s discretionary judgment, rather than confining itself to legality or human-rights grounds.

The Tribunal must determine the reasonably foreseeable consequences of deprivation. Removal is relevant only if it is a reasonably foreseeable consequence, not because it is statutorily assumed. Deprivation may require separate assessment under Article 8 and EU proportionality, but a person who held indefinite leave before naturalisation does not regain that leave automatically on loss of British citizenship.

The appellant obtained refugee status, indefinite leave to remain and later British citizenship after falsely claiming to be a Kosovan national. The Secretary of State decided to deprive him of citizenship under section 40 of the British Nationality Act 1981.

The First-tier Tribunal dismissed his appeal after treating the appeal under section 40A as largely confined to the statutory fraud condition and Article 8. By consent, the Upper Tribunal found an error of law in that approach and set the decision aside. It re-made the decision after considering the scope of section 40A, the consequences of deprivation, Article 8, EU citizenship, the appellant’s prior indefinite leave, and the Secretary of State’s deprivation policy.

1. Appeal dismissed. The Tribunal re-exercised the discretion under section 40A and concluded that it remained appropriate to deprive the appellant of British citizenship.

2. Section 40A confers a full appeal on the merits. In the absence of express limiting language, an appellate tribunal must exercise afresh the judgment or discretion involved in the deprivation decision. The Secretary of State’s published policy is relevant and must be given due weight, but it does not bind the Tribunal. The First-tier Tribunal erred by treating the appeal as confined to the factual precondition in section 40(3) and Article 8.

3. The Tribunal had to assess the reasonably foreseeable consequences of deprivation. Unlike an immigration appeal under section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, removal was not assumed. On the evidence, removal was too remote to affect the appeal. The appellant was likely to receive limited leave and to be permitted to work.

4. Indefinite leave to remain ceased when the appellant became a British citizen. It had no vestigial existence during citizenship and did not revive automatically on deprivation.

5. Article 8 was not engaged on the facts. The foreseeable consequences did not materially interfere with the family’s private or family life, even on the cautious assumption that the appellant might be unable to work. The children’s best interests were treated as a primary consideration.

6. Loss of EU citizenship required a proportionality assessment. Although the appellant would lose free-movement and other EU citizenship benefits, the deception used to obtain citizenship, the limited practical impact, his continuing Albanian nationality, and the public interest in maintaining the integrity of citizenship law made deprivation justified and proportionate.

7. The respondent’s policy normally not to deprive a person resident for more than 14 years did not assist the appellant. It was not an absolute or sliding-scale policy, and his British wife and children could not cure his failure to meet its residence criterion.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision for error of law and re-made it, dismissing the appeal under section 40A of the British Nationality Act 1981.

• First-tier Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s deprivation appeal after adopting a restricted view of section 40A and finding no Article 8 interference of sufficient gravity.