The issue in 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) [2017] UKSC 82 (“Hysaj and Bakijasi”) is whether the misrepresentations made by the Appellants in their British Citizenship applications made the grant of citizenship a nullity rather than making them liable to for deprivation of British citizenship. The Supreme Court takes into consideration past nullity of British citizenship cases and recognises that the uncertainty of law in this area can make it difficult to be applied correctly.
What is Deprivation of British citizenship and Nullity of British citizenship?
The Secretary of State has the power to either deprive or nullify British citizenship under Section 40 of the 1981 Act. Section 40, sub-section 3 of the 1981 Act states that the Secretary of State may deprive a person of British citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of fraud, false representation or concealment of a material fact.
Nullity of British citizenship is when registration or naturalisation is deemed to never have taken place. This means the individual concerned does not need to be deprived of their British citizenship because 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 can therefore be difficult to correctly apply.
Background to Hysaj and Bakijasi – Deprivation and Nullity of British Citizenship Cases
Mr Hysaj is an Albanian national who claimed asylum in the UK in July 1998. Whilst he gave his real name, he gave a false date of birth and claimed to be Kosovan. The Home Office accepted him as a refugee and he was granted Indefinite Leave to Remain (“ILR”) in 1999. In 2004, Mr Hysaj was granted naturalisation as a British citizen under Section 6(1) of the British Nationality Act 1981 (“the 1981 Act”). Similarly, Mr Bakijasi is an Albanian national who came to the UK and claimed asylum in 1999 stating that he was Kosovan. He also gave a false name and date of birth. Whilst Mr Bakijasi’s asylum claim was initially refused, he was later granted ILR in 2005 and then naturalised as a British citizen in November 2006.
When the frauds became apparent, the Secretary of State decided in both cases that the grant of citizenship was a nullity. Both Appellants were deemed not to and have never been British citizens, but still remained on ILR. Both Appellants challenged the Secretary of State’s decision. The High Court and Court of Appeal upheld the Secretary of State’s decision and permission to appeal to the Supreme Court was granted.
Judgement to Hysaj and Bakijasi – Deprivation and Nullity of British Citizenship Cases
There were 4 relevant decisions in the Court of Appeal which adopted the nullity of British citizenship rather than depriving a person of British citizenship. The original decision in R v Secretary of State for the Home Department ex P Sultan Mahmood [1981] QB 58 involved the supposed grant of British citizenship to someone who was impersonating another real person. Subsequent cases: R v Secretary of State for the Home Department ex P Parvaz Akhtar [1981] QB 46, R v Secretary of State for the Home Department ex P Ejaz [1994] QB 496 and R v Entry Clearance Officer, Dhaka [2007] EWCA Civ 740 expanded the approach to persons assuming a false identity in order to obtain British citizenship.
The Secretary of State reached the conclusion that the law took a ‘wrong turning’ after Mahmood and that the nullity approach should only apply in cases where an applicant had obtained British citizenship by impersonating another person, to which the Supreme Court unanimously agreed. The cases of Akhtat and Bibi were wrongly decided and the Supreme Court agrees that those decisions must be overruled and that the appeals of Hysaj and Bakijasi must be allowed as neither Appellant had impersonated someone else. It is concluded that the uncertainty of the law in this regard means that it is difficult to apply in practice.
The Supreme Court also raised the question that the logic of the position adopted by the Secretary of State would also nullify the grant of ILR, however the Secretary of State has never contended this.
The full judgement can be found here: R (on the application of Hysaj and others) (Appellants) v Secretary of State for the Home Department (Respondent) [2017] UKSC 82 | LEXVISA Immigration Solicitors London
Using Legal Representation to appeal a Deprivation or Nullity of British citizenship claim
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to appeal a Deprivation or Nullity of British citizenship claim.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successful appeals against a Deprivation or Nullity of British Citizenship claims
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