Laci v Secretary of State for the Home Department

British citizenship obtained by material deception will ordinarily be withdrawn. Exceptionally, compelling countervailing circumstances may justify a different exercise of the discretion under section 40(3) of the British Nationality Act 1981.

Prolonged and unexplained official inaction may reduce the public interest in deprivation or weigh affirmatively against it. Particular weight may arise where the authorities began deprivation action, remained silent for almost a decade, renewed the person’s passport and thereby reasonably led that person to believe that citizenship was no longer in question. The tribunal may combine that unfairness with the practical consequences of an interim loss of immigration status. The weight assigned to such circumstances is primarily for the tribunal.

The appellant obtained British citizenship after falsely claiming to be a Yugoslav national from Kosovo when he was Albanian. After discovering the deception, the Secretary of State notified him in 2009 that deprivation was under consideration. She then took no further action for nine years and renewed his British passport in 2016.

The First-tier Tribunal accepted that section 40(3) of the British Nationality Act 1981 was engaged but allowed his appeal. It relied on the prolonged inaction, his established life in the United Kingdom and the consequences of losing settled status. The Upper Tribunal found errors of law, remade the decision and dismissed the appeal.

The central issues were whether the First-tier Tribunal had misdirected itself about removal, the public interest and the period of unsettled status, and whether its conclusion was nevertheless legally unavailable.

1. Appeal allowed. The Upper Tribunal had not identified a sustainable error of law in the First-tier Tribunal’s decision. The First-tier Tribunal’s decision allowing the appellant’s appeal against deprivation was restored.

2. A person who obtained citizenship by deception will, in ordinary circumstances, be deprived of it. Such a person seeks to retain an important status to which they were never entitled. A different result will therefore be unusual or exceptional, although exceptionality is not a freestanding legal test.

3. The First-tier Tribunal had not treated removal as a foreseeable consequence supporting the appellant. Properly read, its reasons excluded removal from the balance and relied instead on the loss of settled status. Under Aziz [2018] EWCA Civ 1884, a tribunal should not normally undertake a proleptic assessment of whether removal will follow deprivation because deprivation and removal are distinct decisions with separate appeal processes.

4. Adverse consequences other than removal remain relevant. These may include statelessness or the period between deprivation and a decision granting leave. During that limbo period, a person may be unable lawfully to work. The First-tier Tribunal was entitled to regard the threatened loss of the appellant’s settled, long-term employment as a serious factor.

5. The First-tier Tribunal had recognised the strong public interest in withdrawing citizenship obtained by deceit. Its reference to that interest and its direction under the existing authorities showed that it had performed the required balance. The brevity of its reasons did not establish an error of law.

6. The decisive exceptional feature was the Secretary of State’s conduct. She commenced consideration of deprivation, invited and received representations, remained silent for more than nine years and renewed the appellant’s passport. He reasonably believed that no further action would be taken. The First-tier Tribunal could regard the resulting unfairness, together with the other circumstances and the effects of immigration limbo, as sufficiently compelling to outweigh the public interest in deprivation.

7. Delay is not invariably sufficient. Its relevance and weight depend on the circumstances. Once unreasonable delay is accepted as material, the weight assigned to it is a matter for the tribunal. The outcome did not authorise an indulgent approach to citizenship obtained by fraud.

1. Court of Appeal (Civil Division): By [2021] EWCA Civ 769, unanimously allowed the appellant’s appeal and restored the First-tier Tribunal’s decision.
2. Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for error of law, remade the decision and dismissed the appellant’s appeal against deprivation.
3. First-tier Tribunal: Accepted that section 40(3)(b) of the British Nationality Act 1981 was engaged but allowed the appellant’s appeal against deprivation, relying particularly on the Secretary of State’s nine-year inaction and the consequences of unsettled immigration status.