Secretary of the State has the power to deprive or nullify the British Citizenship under section 40 of the British Nationality act 1981 in two occasions:
- it would be conducive to the public good to deprive the person of his or her British nationality, and that s/he would not become stateless as a result of the deprivation; or
- where the person acquired the citizenship or status as a result of his registration or naturalisation on or after 1 January 1983, the registration or naturalisation was obtained by means of:
- fraud; or
- false representation; or
- the concealment of any material
Conducive to Public Goods
Conduciveness to the Public Good” means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours. In addition, section 40(4A) further qualifies the proviso of s.40(4):
- if citizenship resulted from naturalisation,
- the Secretary of State is satisfied that the person has conducted themselves in a manner which is seriously prejudicial to the viral interests of the UK whilst being British, and
- there are reasonable grounds to believe that the person is able to become a national of another country, under the law of that country,
then the Secretary of State is not prevented from making an order under s.40(2) even if the person would be rendered stateless.
False Representation
The relevant Nationality Guidance confirms that “false representation” requires dishonesty on the applicant’s part and therefore an innocent mistake would not give rise to the power to deprive. “Concealment of material fact”, according to the Guidance, means operative concealment, i.e. the concealment had a direct bearing to the decision to register or naturalise. As with false representation, deliberate dishonesty is also required for the deprivation power to arise and a genuine omission would not suffice. This is no less clear from the fact that “fraud” is considered to encompass either of the above.
Nullity of British Citizenship
Nullity is the term used to describe a registration or naturalisation which was ineffective from the outset. This means the individual concerned does not need to be deprived of their British citizenship, as they are regarded as never having been granted it in the first place. The test for whether a registration or naturalisation was a nullity has been developed through case law and so is not set out in the legislation which deals with British nationality.
Impact of nullity on the applicant’s children
A person whose registration or naturalisation is declared null and void is regarded as never having held that status. This will, therefore, impact on any children born following registration/naturalisation.
- Children born in the UK If the parent was settled in the UK prior to becoming a citizen, the child may be a British citizen.
- Children born overseas As the parent was not a British citizen at the time of the birth, the child cannot be a British citizen by descent, and so will not have the right of abode in the UK. They will need to regularise their stay.
- Children registered when the parent registered or naturalised Where the child registered as a British citizen on the basis of a false identity, then the registration is likely to be a nullity. Where the child registered as a British citizen in their true identity then, notwithstanding that the grant to the parent is a nullity, it would not be appropriate to take nullity action.
Right of appeal against a decision of Nullity
A person whose citizenship is declared null and void has no statutory right of appeal but could seek to challenge the decision by means of an application for judicial review. A decision to treat a person’s registration or naturalisation as a nullity could affect the position of that person’s spouse or other relatives whose own immigration or citizenship status was secured on the basis of the person’s claimed citizenship status. It might also render him or her liable to deportation or removal.
Where a person’s citizenship has been declared null and void, they will revert to their previous immigration status. If they held indefinite leave to enter or remain before making their citizenship application, they will retain their settled status, provided Secretary of the State remain satisfied that all the relevant criteria were met when the settlement was granted.
The right of appeal against the decision to deprive
The person against whom the Secretary of State has given notice of a decision to make a deprivation order has a right of appeal to the First Tier Tribunal (Immigration & Asylum Chamber) on both the legality and the merits of the Secretary of State’s decision.
Where, however, the decision to make a deprivation order was taken wholly or partly in reliance on information which, in the Secretary of State’s opinion, should not be made public:
- in the interests of national security;
- in the interests of the relationship between the United Kingdom and another country; or
- otherwise in the public interest,
the right will instead be one of appeal to the Special Immigration Appeals Commission (s.40A(2) of the 1981 Act and s.2B of the Special Immigration Appeals Commission Act 1997).
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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