Secretary of State for the Home Department v Xhevdet Daci

The Court of Appeal considered whether the Secretary of State had lawfully exercised the discretion in section 40(3) of the British Nationality Act 1981 to deprive the respondent of British citizenship and whether sufficient reasons had been given for that exercise. The court held that the Secretary of State had recognised and exercised the statutory discretion and had given adequate reasons in the letter of 2 August 2021. The court found that the respondent had obtained citizenship by fraud, was complicit as an adult in maintaining that fraud, and that the decision to deprive was consistent with the relevant policy in the Nationality Instructions (in particular paragraph 55.7.5 and 55.7.8). The delay in discovery of the fraud did not render the decision disproportionate. The Court allowed the Secretary of State's appeal but remitted the respondent's Article 8 European Convention on Human Rights (ECHR) claim to the Upper Tribunal for determination.

This was an appeal by the Secretary of State against a decision of the Upper Tribunal (Immigration & Asylum Chamber) which, having set aside an earlier First-tier Tribunal decision, remade the decision to allow the respondent's appeal from the Secretary of State's deprivation decision on the ground that the Secretary of State had not properly exercised the discretion under section 40(3) of the British Nationality Act 1981.

Background facts:

• The respondent, born 13 March 1981, is an Albanian national who entered the United Kingdom in July 1998 as a minor but gave false name, date of birth and nationality and claimed asylum under a false identity.
• He obtained indefinite leave to remain on 24 May 1999 and naturalised on 23 June 2004 in the false identity. In 2020 the Home Office discovered the true identity and in May 2021 notified consideration of deprivation. By letter of 2 August 2021 the Secretary of State decided to deprive him of citizenship.

Nature of the application:

• The Secretary of State appealed the Upper Tribunal's decision that the deprivation decision was unlawful because the statutory discretion had not been exercised or reasoned; the respondent cross-appealed on other grounds including Article 8 ECHR.

Issues framed by the court:

1. Whether the Secretary of State had recognised, exercised and given sufficient reasons for the exercise of the discretion under section 40(3) BNA 1981.
2. Whether the decision was otherwise unlawful or disproportionate, including misapplication of the relevant policy in the Nationality Instructions (notably paras 55.7.5 and 55.7.8).
3. If the Secretary of State's appeal succeeded, whether the respondent's Article 8 ECHR claim should be remitted for fresh consideration.

Reasoning and disposition:

• The court reviewed the letter of 2 August 2021 and found it addressed the representations made on 14 June 2021 under the headings relied on by the respondent, considered the relevant policy and assessed complicit conduct as an adult. The language in paragraph 43 and the subsequent discussion were read as a whole and found to show a considered exercise of discretion and adequate reasons.
• On policy, the respondent was properly treated as complicit under paragraph 55.7.8 because he had been an adult before acquiring indefinite leave to remain and had maintained the false identity when later naturalising; his statements on forms and the good character guidance supported that conclusion. The delay in discovery did not render the decision disproportionate given continued deception and prompt action once fraud was discovered.
• The court allowed the Secretary of State's appeal, concluding the Upper Tribunal was wrong to find no exercise of discretion, but remitted the Article 8 compatibility issue to the Upper Tribunal for determination in the first instance.

The court considered and applied authorities including Begum (No.1), Ciceri, Chimi and the Court's contemporaneous reasoning in Chaudhry, and noted related authorities such as Laci and Aziz in the context of proportionality and human rights assessment.

Appeal allowed. The Court of Appeal held that the Secretary of State had recognised and exercised the discretion under section 40(3) of the British Nationality Act 1981 and had given adequate reasons in the decision letter of 2 August 2021. The Secretary of State’s decision was consistent with the relevant Nationality Instructions and was not otherwise unlawful or disproportionate at common law. The Article 8 ECHR issue remains undecided and is remitted to the Upper Tribunal for determination.

The respondent's appeal to the First-tier Tribunal (Immigration and Asylum Chamber) was allowed on 25 April 2022. The Upper Tribunal set aside the FTT decision on 21 August 2023 and then remade the decision, allowing the respondent's appeal on 5 March 2024. The Secretary of State appealed to the Court of Appeal, which delivered judgment on 17 January 2025 ([2025] EWCA Civ 18).