Gjelosh Kolicaj v Secretary of State for the Home Department

Procedural fairness will normally require the Secretary of State to give a person notice that deprivation of citizenship is contemplated and an opportunity to make representations. That step may lawfully be omitted where there is a proper and clear reason to conclude that notice would enable the person to frustrate the process. A clear and obvious risk that a dual national would renounce their other nationality, thereby engaging the statutory protection against statelessness, can justify proceeding without a ‘minded-to’ notice.

Under British Nationality Act 1981 section 40(2), satisfaction that deprivation is conducive to the public good is a condition precedent only. The Secretary of State must then separately exercise the discretion whether to deprive the person of citizenship in the light of all relevant circumstances. Failure to exercise that discretion is a material error of law.

Gjelosh Kolicaj, a dual Albanian-British national, was convicted of a serious organised money-laundering offence and sentenced to six years’ imprisonment. The Secretary of State made an order depriving him of British citizenship under British Nationality Act 1981 section 40(2), without first inviting representations.

The First-tier Tribunal dismissed his appeal in a determination dated 26 April 2022. It found that his offending was serious organised crime, that no prior notice was required, and that his human-rights arguments failed.

On appeal, he contended that the decision was procedurally unfair, failed to consider material matters including future risk, and failed to exercise the distinct statutory discretion that arises after the condition precedent for deprivation is met.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside because the Secretary of State had failed to exercise the discretion conferred by British Nationality Act 1981 section 40(2). The appeal under section 40A(1) was allowed.

2. The Tribunal applied the staged approach explained in Ciceri (Deprivation of citizenship appeals: principles) [2021] UKUT 00235 and Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 00115 (IAC). It first held that there was no public-law error in the Secretary of State’s conclusion that deprivation was conducive to the public good. The appellant’s leading role in a sophisticated conspiracy involving the repeated removal of very substantial criminal proceeds properly engaged the policy concerning serious organised crime.

3. A current risk of harm or reoffending is not a precondition to finding that deprivation is conducive to the public good. It may nevertheless be relevant when the Secretary of State decides whether to exercise the discretion to deprive.

4. Common-law fairness normally requires an opportunity to make representations before a deprivation decision. On these facts, however, the clear and obvious risk that prior notification would enable the appellant to renounce Albanian citizenship and render himself stateless justified omitting the ‘minded-to’ step.

5. Having found the condition precedent satisfied, the Secretary of State was required to decide separately whether deprivation should be ordered in all the circumstances. The decision gave no sufficient indication that she recognised or exercised that discretion, despite material concerning future risk, family life and the appellant’s children. The Tribunal could not speculate what decision she would have made had the discretion been exercised.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal under British Nationality Act 1981 section 40A(1) and set aside the First-tier Tribunal’s decision.
• First-tier Tribunal (Immigration and Asylum Chamber): Dismissed the appeal against deprivation of citizenship in a determination dated 26 April 2022.