Introduction

What constitutes sufficient reasons for the Secretary of State to exercise discretion to deprive a person of British citizenship acquired by fraud, misrepresentation, or concealment of a material fact? Parliament has provided that the mere establishment of fraud is insufficient for the Secretary of State to deprive; in addition, she must exercise discretion. In a connected question, how ought such matters to be considered on appeal to the First-tier Tribunal?

In the case of Secretary of State for the Home Department v Daci [2025] EWCA Civ 18 the Court of Appeal gave consideration to the exercise of discretion and to the question of whether the decision was proportionate at common law. Its approach merits careful attention. It was common ground that Mr Daci had committed fraud when applying for citizenship. In that context, the case is of interest for its treatment of those questions of discretion and of proportionality. The case also stimulates consideration of other matters at large, including the measure of responsibility borne by a young person who has recently become an adult and, also, the approach to be taken where it is British citizenship (not an immigration status) that stands to be lost.

Mr Daci

Mr Daci was an Albanian citizen who claimed asylum in the UK under a false name and date of birth, averring that he was a Kosovan national. He was recognised as a Refugee and granted indefinite leave to remain. Remaining within his false identity, he obtained a Home Office travel document and, thereafter, applied to naturalise as a British citizen. In making the latter application he ticked the ‘no’ box in answering the question of whether he had engaged in activities that might indicate he was not of ‘good character’.  Under the applicable Nationality Guidance, a person who practised deceit in dealings with the Home Office was not to be considered to be of ‘good character’.

Although the Secretary of State granted his naturalisation application in 2004, by 2021 she had detected the deceit and so she began deprivation proceedings. Mr Daci made representations within that process but on 2 August 2021 the Secretary of State notified him of her decision to deprive him of citizenship.

The deprivation decision

The decision letter rehearsed Mr Daci’s representations, among which were points taken as to his being a minor (and so not complicit in deception) when he arrived in the UK and claimed asylum, the impact of the delay in taking deprivation action, and the need for compliance with the right to respect for private life and family life (as protected by Article 8 ECHR under the Human Rights Act 1998). Mr Daci also made reference to the mitigating factors requirement assessment under the relevant Home Office policy.

In response, in making the deprivation decision, among other things, the Secretary of State noted that Mr Daci had been an adult for over two months before he had acquired indefinite leave and also that he had had the opportunity to set the record straight. Mr Daci’s representations were rejected: the Secretary of State did not consider the fraud to be a one-off, there had been no delay since information about the fraud had come to Home Office attention only in 2020, an earlier policy and the case of Laci v Secretary of State for the Home Department [2021] EWCA Civ 769, [2021] 4 WLR 86 (bearing on delay) did not apply, the passage of time since the fraudulent grant of citizenship was of no account, and human rights considerations did not alter the decision.

As to the exercise of discretion, the decision acknowledged that there was discretion. Thereafter, the letter stated that Mr Daci’s representations had been considered and that deprivation was ‘reasonable and proportionate’. Further, consideration was given to Article 8 ECHR (including the interests of his spouse and children), the best interests of his children under the statutory formulation found in s. 55 of the Borders, Citizenship and Immigration Act 2009, and to the question of whether he would be left stateless. Having done so, the Secretary of State decided to deprive him of citizenship.

Deprivation decisions and the right of appeal

By s. 40(3) of the British Nationality Act 1981 (‘1981 Act’), the Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if she is satisfied that the registration or naturalisation was obtained by means of fraud, false representation, or concealment of a material fact.

By s. 40A of the 1981 Act, a person who is given notice of a decision to make a deprivation order, or in respect of whom a deprivation order is made without the person having been given notice of the decision to make the order, may appeal against the decision to the First-tier Tribunal.

As to how the Secretary of State propose to consider the exercise of this deprivation power, under the relevant Home Office policy (said to be former Chapter 55 of the Nationality Instructions at 55.7), in general the Secretary of State will not deprive a person of British citizenship if that person was a minor on the date at which they applied for citizenship. However, where it is in the public interest to deprive despite the presence of this factor (or others specified in the policy) this will not prevent deprivation.

Where a person was a child at the time the fraud, false representation or concealment of material fact, the policy specifies that caseworkers should assume that they were not complicit in any deception by their parent or guardian. However:

55.7.8.3 However, where a minor on reaching the age of 18 does not acquire ILR or other leave automatically and submits an application for asylum or other form of leave which maintains a fraud, false representation or concealment of material fact which they adopted whilst a minor, they should be treated as complicit.

…

55.7.8.5 All adults should be held legally responsible for their own citizenship applications, even where this is part of a family application. Complicity should therefore be assumed unless sufficient evidence in mitigation is provided by the individual in question as part of the investigations process.”

The judgments of the immigration tribunals

The First-tier Tribunal allowed Mr Daci’s appeal on the basis that it could not be said that citizenship had been obtained by means of the admitted fraud. However, the Upper Tribunal set aside that decision and remade it. Thus, the focus is on the latter decision where it too allowed Mr Daci’s appeal, though this time on the basis that the Secretary of State had failed to exercise the statutory discretion on account of a want of consideration of relevant factors.

For the Upper Tribunal, the deprivation decision marshalled the factors at large when considering whether there has deception and whether it was linked to the grant of citizenship. However, notwithstanding that the deprivation decision acknowledged the existence of discretion, there had been no consideration of the “variety of relevant factors” before the Secretary of State at the time and “no substantive assessment” of the any particular factors at that stage”.

Before the Court of Appeal

The Secretary of State appealed to the Court of Appeal and in response Mr Daci filed a Respondent’s Notice seeking to uphold his Upper Tribunal win for reasons different from or additional to those given in the latter’s judgment.

The Secretary of State submitted that on a fair reading of the letter, the decision addressed all factors relevant to the exercise of discretion. Thus, the decision was not to be impugned on that basis. However, on consideration of the Respondent’s Notice, she agreed that the Upper Tribunal had not considered the question of the decision’s compatibility with Article 8 ECHR and so a remittal of that issue was warranted.

Mr Daci submitted that there had been a failure to exercise discretion and give necessary reasons. Further, in addition to the human rights point (now accepted by the Secretary of State), the Respondent’s Notice took the additional point that the decision was not proportionate, not least as Mr Daci was a minor when he entered the UK and so under the relevant policy the fraud ought not to count against him.

Issue 1: the exercise of discretion

Giving the principal judgment for the Court, on the first issue for consideration, Lord Justice Dingemans rejected the contention that the Secretary of State’s deprivation decision was unlawful for failure to recognise, exercise, and give sufficient reasons for the exercise of discretion. It followed that the Upper Tribunal had fallen into error.

His Lordship considered that a fair reading of the decision did not support such contentions. He noted that the decision made express reference to the letter containing Mr Daci’s representations. Further, in the decision, the relevant policy had been considered and consideration had been given to whether Mr Daci had continued the fraud or otherwise been complicit in it as an adult. For His Lordship, such matters were relevant to the exercise of discretion that occurred. Moreover, the decision considered the issue of delay and whether it warranted a different decision, as well as the human rights prayed in aid as relevant to mitigation. The decision responded to Mr Daci’s representations on matters relevant to the exercise of discretion.

Issue 2: whether the decision was otherwise unlawful and disproportionate

It was common ground that it was for the Court to construe the relevant policy, that the policy’s words were to be interpreted in the light of its purposes, and that the policy was to be read as a policy not a statute. His Lordship noted that Mr Daci was over 18 when he obtained ILR. Under the applicable part of the relevant policy (at 55.7.8.3) he was to be treated as complicit as he had turned 18 and did not acquire leave automatically, and as he had gone on to secure a travel document and naturalisation as a British citizen in his false identity. As regards his naturalisation application Mr Daci had averred that that he had not engaged in activities that might indicate he was not of good character and he had declared the information he had given to be correct. In the result, as an adult he had practiced deceit.

His Lordship did not consider the deprivation decision to be disproportionate: Mr Daci had continued the deceit as an adult and the Secretary of State acted promptly when the fraud became known.  The decision was consistent with the relevant policy and not otherwise unlawful or disproportionate at common law.

Issue 3: If the Secretary of State’s appeal was allowed, whether the Article 8 ECHR issue ought to be remitted to an immigration tribunal

Having allowed the Secretary of State’s appeal against the Upper Tribunal, the Court directed that the case be remitted to that Tribunal for it to determine whether the Secretary of State’s decision was compatible with Article 8 ECHR.

Wider issues

While the judgment is decided in the application of orthodox public law principles, with Secretary of State having the better of the argument on this occasion, the judgment raises wider issues beyond those considered as to the Secretary of State’s approach to deprivation of citizenship and the approach of the tribunals and courts on consideration of the lawfulness of individual deprivation decisions.

Young adults

First, there is the issue of Mr Daci’s age and his position as a young adult. The relevant policy directs caseworkers not to assume that a minor is complicit in an any deception by their parent or guardian. However, where a minor turns 18 and does not acquire indefinite leave or other leave automatically and submits an application for asylum or other form of leave which maintains the fraud adopted whilst a minor, they are to be treated as complicit.

Mr Daci arrived and claimed asylum aged 17, with indefinite leave being granted later just two months after he turned 18. Thereafter, five years later, he applied to naturalise as a British citizen. From the Court of Appeal judgment is it not possible to detect how he came to claim asylum in a false identity or who if anyone advised him. However, what is clear is that the deceit and reliance on a false identity began while he was a minor.

Under the principle embodied in the relevant policy (even noting that there is no suggestion that his claim was part of a family claim), on turning 18 he assumed responsibility for his own conduct and had the opportunity to correct the record. While indeed there may have been that opportunity, the mere reaching of the age of majority is not always accompanied by the sudden arrival of wisdom or even mature judgment. That Mr Daci as an 18-year-old left matters uncorrected on receiving a grant of indefinite leave is perhaps unsurprising. Of greater import his naturalisation application five years later, when he was 23 years old. However, he was still a young adult at that point, whose deceit had been first established while a minor.

In the context of criminal sentencing the Court of Appeal has noted the distinct position of young adults as it relates to their exercise of judgment. In R v ZA [2023] EWCA Crim 596, [2023] 2 Cr. App. R. (S.) 45 in relation to the neural development of young people and its implications for questions of culpability and the assessment of maturity, the Court stated:

“It has been recognised for some time that the brains of young people are still developing up to the age of 25, particularly in the areas of the frontal cortex and hippocampus. These areas are the seat of emotional control, restraint, awareness of risk and the ability to appreciate the consequences of one’s own and others’ actions; in short, the processes of thought engaged in by, and the hallmark of, mature and responsible adults. It is also known that adverse childhood experiences, educational difficulties and mental health issues negatively affect the development of those adult thought processes. Accordingly very particular considerations apply to sentencing children and young people who commit offences. It is categorically wrong to set about the sentencing of children and young people as if they are “mini-adults”. An entirely different approach is required.”  (§52)

In Mr Daci’s case, the relevant policy does not appear to direct caseworkers to such considerations; instead, under it, an adult of any age bears responsibility for their action and inaction. Yet, as the Criminal Division of the Court of Appeal acknowledged in ZA, to treat a young person (25 and under) or child as a ‘mini-adult’ is categorically wrong in the particular context of criminal sentencing. Is the position different where a young adult is judged to be dishonest in public law proceedings, such that they will lose their citizenship? There is no basis to think it should be. It would make good sense if the Secretary of State’s policy were modified to direct caseworkers to bear in mind the approach to young people considered in ZA, recognising always that each decision will turn on its individual facts. Further, such an approach would make the task of the tribunals and courts easier when they come to assess the rationality and proportionality of a particular deprivation decision that concerns a young adult.

British citizenship as a Constitutional status

A second wider issue for consideration in the light of the judgment is the approach to be taken by tribunals and courts where it is British citizenship (not an immigration status) that stands to be lost through deprivation. What was at stake for Mr Daci was not the prospective loss of an immigration status as an alien but rather the loss of his membership of the legal and political community of people who belong to the UK and who constitute its citizens. Thus, the decision to deprive was constitutional in nature, indeed it may be said to have had a democratic dimension. Leaving to one side the thorny question of whether deprivation of citizenship ought ever to be possible, that being a question for Parliament, in what way ought the constitutional quality of citizenship condition its treatment in deprivation cases? It is no answer merely to opine that as British citizenship is a statutory status at risk of deprivation at discretion, one simply approaches the matter by reference to the factors proposed by the Secretary of State, while making allowance for any exceptional factors arising. There are also constitutional and democratic factors. 

The Secretary of State’s policy as to the basis upon which she will exercise citizenship deprivation powers wants for any appreciation of the caution needed before exercising them, having regard to the constitutional consequences of loss of British citizenship, as distinct from loss of leave to remain for a person subject to immigration control. True it is that there is a policy as to the factors the Secretary of State proposes to consider. However, there is no attempt to set a high bar to the exercise of discretion to deprive in view of the draconian nature of expulsion from the legal and political community of British citizens.

Parliament has provided that establishing fraud is not sufficient for the exercise of deprivation powers. There is also discretion. Thus, there is a pocket of jurisdiction within which such constitutional matters may be considered, both in the framing of deprivation policy and in the making of deprivation decisions.  Such matters may fall to be considered also when the tribunals and courts come to consider the rationality and proportionality of deprivation decisions on appeal.

On appeal, there ought to be consideration not just of the fact of possession of the legal status of British citizenship but also of its essential attributes or qualities as things that stand to be lost (e.g., constitutive membership of the legal and political community of the United Kingdom, the right of abode in the UK, and the right to vote and elect a legislature/representative government of the UK on an equal basis with other citizens, etc.). There should be consideration of these factors (beyond the already- established fraud) that may render the exercise of the deprivation power unreasonable or disproportionate.

Such factors go beyond matters such as delay, passage of time, ill-health, etc., and engage the consideration that in a democratic society, the decision of a government (with Parliamentary warrant) to expel a citizen from the legal and community of people whom it represents and to whom it is ultimately accountable is a decision of such import that a high bar must be hurdled in order to proceed.  Such a high bar is warranted on democratic grounds, on the basis that along with other fellow citizens, a person facing citizenship deprivation is a constitutive element of the legal and political community of people who belong to the UK and who elect the Parliament and thereby choose the very government making the decision. For the government of a democratic society bound by the rule of law to decide to choose to cast out one of its citizens there ought to a high bar set as a matter of policy, thereafter great caution shown on the part of the decision-maker before making a deprivation decision and, thereafter, close scrutiny by tribunals and the courts as to rationality and proportionality with the express purpose of ensuring respect for the relationship between citizens and their government. The loss of citizenship is a thing of a different order to the loss of leave to enter or remain for a person subject to immigration control.