Hysaj & Ors, R.( On the Application of) v Secretary of State for the Home Department

An implied limitation applies to the power to grant naturalisation under the British Nationality Act 1981. Where an applicant has used fraudulent impersonation of such seriousness and centrality that it wholly undermines the statutory process, the purported naturalisation is a nullity and the deprivation machinery does not apply.

The limitation is narrow. Innocent errors, innocent pseudonyms and immaterial deception do not suffice. Fraud used to obtain indefinite leave to remain may qualify where that status is then relied upon to obtain citizenship. A later right of appeal against deprivation does not remove the limitation.

Three appeals arose from judicial review proceedings against decisions by the Secretary of State treating the appellants’ naturalisation as having no legal effect. Each appellant had fraudulently claimed to be a Kosovan refugee, obtained indefinite leave to remain, and later applied for naturalisation using the same false identity. The Secretary of State did not make deprivation orders under section 40 of the British Nationality Act 1981.

Ouseley J dismissed the claims, holding that the naturalisations were nullities. The appeals concerned whether an implied limitation survived under the 1981 Act, whether the introduction of a right of appeal altered the position, and whether valid continuing indefinite leave to remain prevented the naturalisations from being nullities.

1. Appeals dismissed. Sales LJ gave the judgment, with Kitchin LJ and Floyd LJ agreeing. The court was bound by Sultan Mahmood [1981] 1 QB 58 (Note), Parvaz Akhtar [1981] 1 QB 46 and Tohura Bibi [2007] EWCA Civ 740. The statutory context of section 20 of the British Nationality Act 1948 was materially equivalent to section 40 of the British Nationality Act 1981.
2. The Secretary of State’s power under section 6(1) of the 1981 Act is subject to an implied limitation. A person cannot obtain naturalisation by fraudulent impersonation which is sufficiently serious and central to the application wholly to undermine the statutory process. In such a case the purported grant is a nullity, so the prospective deprivation machinery is not engaged.
3. The limitation must be applied narrowly. The court took account of both the public interest in preventing a fraudster from benefiting from fraud and the public interest in stable citizenship status for innocent third parties. Fraud concerning a prior status may qualify where it directly enabled the application for citizenship. The appellants had obtained indefinite leave to remain through fraudulent impersonation, maintained the false refugee identity when applying for naturalisation, and could not rely on the resulting status to escape the limitation.
4. The replacement in 2003 of the right to request an inquiry with a right of appeal under section 40A did not alter the analysis. Section 6(1) remained unamended, and the amendment supplied no sufficiently clear indication that Parliament intended to remove the implied limitation.
5. The court noted that legislative clarification would be desirable. It also left open, as an issue not explored in argument, whether section 3 of the Human Rights Act 1998 might have an interpretive role where innocent third-party citizenship interests are affected.

1. Court of Appeal (Civil Division): dismissed all three appeals.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Ouseley J dismissed the judicial review claims and held that the appellants’ purported naturalisations were nullities.