The Secretary of State for the Home Department v Gjelosh Kolicaj

Procedural fairness ordinarily requires a person significantly affected by a statutory power to have an opportunity to make representations before the decision. That requirement may be displaced where prior notice would make the process impossible, impracticable or pointless, but the justification must be closely examined. In a citizenship-deprivation case, the Secretary of State may make the order before notification where notice risks renunciation of another nationality. However, where the statutory appeal is limited to public-law review, fairness requires an effective merits-based review after notification. Failure to provide that opportunity is procedurally unfair and requires the decision to be quashed.

The Secretary of State deprived Mr Kolicaj, a dual Albanian and British national, of British citizenship under section 40(2) of the British Nationality Act 1981. The notice and order were served within about half an hour of one another, without any opportunity for representations. The First-tier Tribunal dismissed his appeal on 5 May 2022. The Upper Tribunal allowed his appeal in a decision published on 13 November 2023, finding that the Secretary of State had failed properly to exercise her discretion. The Secretary of State appealed. Mr Kolicaj relied on procedural unfairness and the use of an unpublished policy. The central issues were whether the procedure was fair and whether the Secretary of State had failed to recognise or exercise her discretion.

1. Procedural fairness. Edis LJ applied the ordinary rule that a person foreseeably and significantly adversely affected by a statutory power should have an opportunity to make representations before the power is exercised, subject to narrowly construed statutory or practical exceptions. The British Nationality Act 1981 did not exclude that opportunity expressly or by implication.
2. It was legitimate in section 40(2) cases to make the deprivation order before notifying the person where prior notice created a real risk of renunciation of another nationality and frustration of the statutory process. However, the Secretary of State should then offer a merits-based review in the light of representations or evidence supplied after notification. The appeal under section 40A, being confined to public-law review on the material before the Secretary of State, did not cure the defect. The limited impact of deprivation on Article 8 rights, as distinct from deportation, did not provide an equivalent merits safeguard.
3. Serving the notice and order minutes apart, without any opportunity to make representations and without offering a merits-based review, was procedurally unfair. The notice and deprivation order were therefore required to be quashed. The court did not prescribe the precise procedure to be adopted in future cases.
4. Discretion. The court disagreed with the Upper Tribunal's conclusion that the Secretary of State was unaware of, or failed to exercise, her discretion. Section 40(2) involves a condition precedent that deprivation is conducive to the public good, followed by a discretionary decision whether to deprive. Risk of future offending is not a condition precedent, but may be relevant at the discretionary stage. Consideration of the children's interests was evidence that the discretion had been exercised, although the notice would have been better drafted if the discretionary analysis had been stated separately.
5. Edis LJ concluded that the Secretary of State's ground succeeded but that this did not affect the result because the order remained quashed for procedural unfairness. Dingemans LJ agreed with both judgments. Underhill LJ agreed with Edis LJ's reasons and the quashing of the order, although his paragraph 43 described the appeal inconsistently as allowed. The operative conclusion stated by Edis LJ was that the appeal failed.

1. Court of Appeal (Civil Division): The appeal failed in substance. The court upheld the quashing of the Deprivation Order on procedural-fairness grounds, notwithstanding its rejection of the separate challenge concerning exercise of discretion.
2. Upper Tribunal Immigration and Asylum Chamber: Allowed Mr Kolicaj's appeal in a reasoned decision published on 13 November 2023 and quashed the Secretary of State's decision.
3. First-tier Tribunal Immigration and Asylum Chamber: Dismissed Mr Kolicaj's appeal against the Deprivation Order on 5 May 2022.