Secretary of State for the Home Department v Xhevdet Daci

In an appeal under section 40(3) of the British Nationality Act 1981, the First-tier Tribunal reviews the Secretary of State’s decision on causation and on the exercise of discretion on public law grounds. A deprivation decision must nevertheless demonstrate, when read fairly as a whole, that the Secretary of State considered the relevant representations, exercised the statutory discretion, and gave adequate reasons.

A policy must be construed in light of its purpose and as a policy rather than as a statute. A person who, as an adult, continues a false identity in further immigration and naturalisation applications may be treated as complicit in the fraud. Delay does not make deprivation disproportionate where the deception continued and the Secretary of State acted promptly upon discovering it.

The respondent obtained British citizenship in 2004 using a false identity, date of birth and nationality. Although he had been a minor when he first claimed asylum, he was an adult when granted indefinite leave to remain and when he later made applications maintaining the false identity.

The First-tier Tribunal allowed his appeal against the Secretary of State’s deprivation decision, holding that the fraud had not obtained his citizenship. The Upper Tribunal set that decision aside, but when remaking the appeal allowed it on the basis that the Secretary of State had failed to exercise the discretion conferred by section 40(3) of the British Nationality Act 1981 and had not considered relevant factors.

The Secretary of State appealed. The issues were whether the decision letter disclosed a lawful and adequately reasoned exercise of discretion, whether the relevant deprivation policy had been misapplied, and whether the unresolved article 8 claim should be remitted.

1. Appeal allowed. The Upper Tribunal erred in holding that the Secretary of State had failed to exercise the discretion under section 40(3) of the British Nationality Act 1981. On a fair reading of the decision letter as a whole, the Secretary of State knew of the discretion, exercised it against the respondent, and gave sufficient reasons.

2. The decision letter considered the respondent’s representations about his age when the original deception began, his later conduct, delay, the relevant policy, and human-rights matters. The reference in the final part of the letter to the legal representatives’ representations incorporated the earlier analysis. The fact that the final headings concerned article 8, section 55 and statelessness did not mean that the preceding matters had not informed the discretionary decision.

3. The deprivation policy was correctly applied. Policy wording is construed by the court in light of its purpose, but as policy rather than legislation. The respondent was properly treated as complicit because, after reaching adulthood, he did not receive leave automatically and continued the deception in applications for a travel document and for naturalisation. His false answers in the naturalisation application also showed a lack of good character.

4. The decision was neither unlawful nor disproportionate at common law. The respondent had continued the deceit as an adult, and the Secretary of State acted promptly once the fraud came to light.

5. The article 8 issue remained unresolved. Deprivation may have a more limited effect on article 8 rights than deportation, but the court was not fairly able to determine compatibility itself. The respondent’s appeal was therefore remitted to the Upper Tribunal to determine compatibility with article 8 of the European Convention on Human Rights and the consequent lawfulness of the decision under section 6 of the Human Rights Act 1998.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed: [2025] EWCA Civ 18. The remaining article 8 issue was remitted to the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): It set aside the First-tier Tribunal’s decision on 21 August 2023. On remaking the appeal on 5 March 2024, it allowed the respondent’s appeal because it considered that the Secretary of State had not lawfully exercised the discretion under section 40(3) of the British Nationality Act 1981. That conclusion was overturned by the Court of Appeal.
• First-tier Tribunal (Immigration and Asylum Chamber): On 25 April 2022 it allowed the respondent’s appeal, finding that his citizenship had not been obtained by his admitted fraud.