Supreme Court finds treating British Citizenship as null and void unlawful
In the Supreme court Judgement dated 21 December 2017 for British Citizenship Application R (on the application of Hysaj and others) (Appellants) v Secretary of State for the Home Department (Respondent) Bakijasi (Appellant) v Secretary of State for the Home Department (Respondent)
Background to the Appeal
The appellants made false representations in their applications for United Kingdom citizenship. They claimed asylum in the UK falsely stating that they were born in Kosovo when in fact they were born in Albania. The issue in these appeals is whether those misrepresentations made the subsequent grant of citizenship to them a nullity rather than rendering them liable to be deprived of that citizenship under sections 40 and 40A of the British Nationality Act 1981 (‘BNA’).
When these frauds came to light the Secretary of State, on the basis of binding Court of Appeal case law, decided that in both cases the grant of citizenship was a nullity, so that the appellants were not and had never been British citizens, albeit that they remained on ILR. The appellants challenged the decisions, submitting that the earlier cases were wrongly decided.
Unusually, the Secretary of State applied pursuant to rule 34(2) of the Supreme Court Rules for the appeals to be allowed by consent, supported with reasons.
The Home Office accepted that:
- The Appellants are British citizens by naturalisation under section 6(1) of the British Nationality Act 1981 (“the 1981 Act”),
- The citizenship remains valid unless and until a formal deprivation order is made pursuant to section 40(3) of the 1981 Act
- The decisions, dated 13 February 2013 and 27 June 2013, that the Appellants’ British citizenships were ‘nullities’ (i.e. that the Appellants were not, and had never been British citizens) were wrong in law
- The Home Office to withdraw the said decisions dated 13 February 2013 and 27 June 2013.
- They accept that the children born to the Appellants after they became British Citizens being in Albania or in the UK are British Citizens by descent.
The Supreme Court unanimously allowed the appeals by consent. It agrees with the reasons provided by the Secretary of State and holds that misrepresentations in an application for UK citizenship render the applicant liable to be deprived of that citizenship pursuant to s 40 BNA. Lady Hale gives the only substantive judgment.
Conclusion
In respect to those whom the HO has informed that their British citizenship is a nullity are in fact still British citizens as the HO decision that their British citizenship is nullity is itself a nullity!
In respect of those who have children born in Albania or UK after they became British Citizens are British Citizens by virtue of section 2(1) and/or 2(3) of the 1981 Act.
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