Dinjan Hysaj v The Secretary of State for the Home Department

A deprivation decision under section 40(3) must be assessed under the law and policy in force when it is made. An earlier erroneous nullity decision, taken on legal advice in accordance with then-understood precedent, does not of itself reduce the strong public interest in depriving citizenship obtained by fraud.

A qualified historic 14-year residence policy created no legitimate expectation and could not found historic injustice without demonstrated prejudice. A custodial sentence broke the continuous residence required by that policy.

Deprivation does not automatically revive earlier indefinite leave to remain. A short period without leave while a later immigration decision is made, and its ordinary practical consequences, will not ordinarily make deprivation disproportionate under article 8.

The appellant, an Albanian national, obtained refugee status, indefinite leave to remain and British citizenship by falsely presenting himself as a Kosovan minor. After the deception was discovered, the Secretary of State initially treated his naturalisation as a nullity. That course was successfully challenged in R (Hysaj) v Secretary of State for the Home Department [2017] UKSC 82.

In July 2018, the Secretary of State instead decided to deprive him of citizenship under section 40(3) of the British Nationality Act 1981. The First-tier Tribunal dismissed his appeal on 26 October 2018. He appealed on grounds concerning delay, historic policy, loss of status, foreseeable consequences, article 8 and the exercise of discretion.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. The appellant admittedly obtained citizenship by deliberate and material fraud, satisfying the condition precedent in section 40(3) of the British Nationality Act 1981.

2. The Secretary of State was entitled to act on legal advice and the law as it was then understood when she adopted the nullity doctrine. Although the nullity decision was retrospectively shown to be unlawful by R (Hysaj) v Secretary of State for the Home Department [2017] UKSC 82, this did not establish unlawful delay, a dysfunctional system, or a basis for reducing the public interest in deprivation.

3. The former Chapter 55 14-year policy was expressly qualified by “in general”, “normally” and the public interest. It gave no clear and unambiguous promise that the appellant would avoid deprivation. Decisions had to be made under the policy in force at the decision date. In any event, the policy was linked to the long-residence rule, and the appellant’s custodial sentence broke continuous residence.

4. No historic injustice was shown. The appellant could not establish that a deprivation decision had to be made during the lifetime of the earlier policy or that its discretion would necessarily have been exercised in his favour. He had instead retained the benefits of fraudulently acquired citizenship during the delay.

5. Upon deprivation, earlier indefinite leave to remain did not automatically revive. The appellant had never held Convention refugee status because his protection claim was founded on a wholly false account. A temporary period without leave while the Secretary of State considered deportation or leave was a foreseeable consequence, but did not render deprivation disproportionate.

6. Significant weight attached to the public interest in preserving the integrity of naturalisation. The likely disruption to work, finances and family life was an ordinary consequence of the appellant’s fraud. The family could remain together, and the children’s interests did not outweigh that public interest. The First-tier Tribunal’s failure expressly to address loss of status was therefore immaterial. Its anonymity order was set aside.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision; the anonymity direction was set aside.
• First-tier Tribunal: on 26 October 2018, dismissed the appeal against the decision to deprive the appellant of British citizenship under section 40(3) of the British Nationality Act 1981.