Secretary of State for the Home Department v Kolicaj

An appeal against a decision to deprive a person of British citizenship is a substantive appeal. Its legal framework varies with the issue raised. The tribunal may receive new evidence, including evidence arising after the original decision, and considers the deprivation decision as maintained by the Secretary of State during the appeal.

The statutory appeal supplies the required procedural fairness. The Secretary of State need not invite representations before deciding or ordering deprivation, nor offer a separate merits reconsideration afterwards. An undisclosed policy may be challenged, but earlier non-publication causes no operative unfairness where the policy is disclosed and can be fully contested during the appeal.

The Secretary of State deprived the respondent of British citizenship under section 40(2) of the British Nationality Act 1981 following his conviction for serious organised money laundering. Notice and the deprivation order were served in rapid succession so that he could not first renounce his Albanian citizenship.

The First-tier Tribunal dismissed his appeal. The Upper Tribunal allowed a further appeal because it considered that the Secretary of State had not separately exercised her statutory discretion. The Court of Appeal, in [2025] EWCA Civ 10, rejected that reasoning but upheld the result because the respondent had received no opportunity to make representations before deprivation and, on its understanding, could not present new material in the statutory appeal.

The Supreme Court considered whether procedural fairness required prior representations or a separate reconsideration procedure; whether an undisclosed policy invalidated the decision; whether the discretion had been exercised; and what orders an appellate tribunal may make.

1. The Secretary of State’s appeal was allowed unanimously and the respondent’s cross-appeal was dismissed. The Court of Appeal had proceeded on the mistaken premise that an appeal under section 40A of the British Nationality Act 1981 was confined to reviewing the original decision on public law grounds and on the material then available.

2. An appeal under section 40A, like an appeal to the Special Immigration Appeals Commission under section 2B of the Special Immigration Appeals Commission Act 1997, is a substantive appeal. The governing principles depend on the particular issue. Some issues require respect equivalent to that applied on judicial review; others, including statelessness, fraud and Convention compatibility, may require the tribunal’s own findings or assessment. New evidence may be admitted. The decision in issue is the decision which the Secretary of State maintains after considering the evidence and representations made during the appeal.

3. The statutory scheme contained no fairness gap. Sections 40(5) and 40A focus on notice after the deprivation decision and on the ensuing right of appeal. Parliament thereby impliedly excluded a separate requirement to invite representations before the decision. The appeal itself affords a fair opportunity to make representations. The Secretary of State was therefore neither required to investigate whether Albanian citizenship could be renounced nor obliged to offer a separate merits reconsideration after making the order.

4. The May 2020 ministerial submission constituted a narrower policy governing the exercise of the deprivation discretion and should have been published. The notice was defective because it did not identify that policy. Nevertheless, the policy and the Secretary of State’s reasoning were disclosed during the First-tier Tribunal appeal, where the respondent contested their application. No operative unfairness therefore affected the maintained decision.

5. Section 40(2) distinguishes the condition that deprivation is conducive to the public good from the discretion whether to deprive. The December 2020 submission and notice showed that the Secretary of State exercised that discretion, taking account of policy, the interests of the respondent’s children and Convention rights.

6. A successful statutory appeal does not quash the deprivation decision as on judicial review. The First-tier Tribunal and SIAC nevertheless possess incidental power to set aside the decision, notice and consequential order. They should ordinarily make an order stating the legal effect of their judgment with precision.

1. United Kingdom Supreme Court: Allowed the Secretary of State’s appeal and dismissed the respondent’s cross-appeal: [2025] UKSC 49.
2. Court of Appeal: Rejected the Upper Tribunal’s conclusion that the statutory discretion had not been exercised, but upheld the respondent’s procedural-unfairness ground and ordered that the notice and deprivation order be quashed: [2025] EWCA Civ 10.
3. Upper Tribunal: Allowed the respondent’s appeal because it considered that the Secretary of State had addressed the conducive-to-the-public-good condition but had not separately exercised her discretion whether to deprive.
4. First-tier Tribunal: Dismissed the respondent’s appeal against deprivation, rejecting his public law, procedural fairness, policy and Convention arguments.