R v Secretary of State for the Home Department

A grant of British citizenship obtained through a false identity is not a nullity merely because the applicant used fraud to acquire the qualifications for naturalisation. Where the applicant is the person considered and granted citizenship, the grant remains valid unless and until citizenship is formally withdrawn under British Nationality Act 1981, section 40.

Nullity is confined to cases in which one real person impersonates another real person and the grant can properly be attributed to neither. The decisions extending nullity to invented identities or qualifications fraudulently acquired in such identities were overruled.

The appellants obtained indefinite leave to remain and later naturalisation by using false particulars concerning their names, dates or places of birth, nationality and asylum histories. When the frauds emerged, the Secretary of State treated their citizenship as a nullity rather than pursuing deprivation under sections 40 and 40A of the British Nationality Act 1981.

Ouseley J upheld the decisions in [2014] EWHC 832 (Admin), [2015] 1 WLR 945. The Court of Appeal, bound by earlier authority, upheld that judgment in [2015] EWCA Civ 1195, [2016] 1 WLR 673. After permission to appeal was granted, the Secretary of State accepted that the law had taken a wrong turning and applied for the appeals to be allowed by consent.

The central issue was whether the appellants’ misrepresentations made their grants of citizenship nullities or instead exposed them to formal deprivation proceedings.

1. The appeals were allowed by consent. Lady Hale, with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord Hodge agreed, accepted the Secretary of State’s revised reasoning. The appellants were British citizens by naturalisation under section 6(1) of the British Nationality Act 1981. Their citizenship remained valid unless and until formal deprivation orders were made under section 40(3).

2. The nullity principle recognised in Mahmood remained good law. It applies where one real person impersonates another real person who possesses the qualifications for citizenship. The Secretary of State considers and purports to grant citizenship to the person impersonated, although that person has not applied and may be unwilling or dead. The grant cannot be attributed either to the impersonator or to the person impersonated and is therefore ineffective.

3. A different result follows where the applicant creates or uses a false identity and, in that identity, acquires the characteristics required for citizenship. The applicant is nevertheless the person who applies, is considered and receives the grant. The grant is valid even though the qualifications were acquired through fraud or false representations. Such fraud falls within the deprivation regime in section 40, with the applicable right of appeal under section 40A.

4. The expanded nullity doctrine lacked a clear and principled boundary. It also produced uncertainty and potentially serious retrospective consequences for derivative citizenship and third parties. Its treatment of citizenship could not readily be reconciled with the Secretary of State’s continued recognition of indefinite leave to remain obtained through the same false identity.

5. Ejaz was rightly decided. The Court of Appeal decisions in Akhtar and Bibi, which extended nullity beyond impersonation of another real person, were overruled. The Court of Appeal’s order was set aside, the Secretary of State’s nullity decisions were withdrawn, and the children identified in the consent order were recognised as British citizens under the applicable provisions of the 1981 Act.

1. United Kingdom Supreme Court: In [2017] UKSC 82, allowed the appeals by consent, overruled Akhtar and Bibi, and set aside the Court of Appeal’s order.
2. Court of Appeal: In [2015] EWCA Civ 1195, [2016] 1 WLR 673, upheld the nullity decisions on the basis of binding Court of Appeal authority, while describing that interpretation as problematic.
3. High Court, Administrative Court: Ouseley J upheld the Secretary of State’s decisions, with some reluctance, in [2014] EWHC 832 (Admin), [2015] 1 WLR 945.