Introduction

The recent decision of Secretary of State for the Home Department v Kolicaj [2025] EWCA Civ 10   contains  a welcome re-statement by the Court of Appeal of the importance of procedural fairness and the right to make representations before facing the consequences of a British citizenship deprivation decision. In a case where the Secretary of State asserted that deprivation is ‘conducive to the public good’, it is an illustration of when the decision-making process may render the deprivation decision unlawful for want of fairness. It also points the way ahead as to how to reconcile competing public interests as regards fairness and the need for an effective procedure.

The facts

Mr Kolicaj was an Albanian citizen who came to the UK, who resided and settled here, and who went on to naturalise as a British citizen in 2009. Thereafter, on account of criminal offending (cross-border money laundering), he was convicted and sentenced to six years in custody. In January 2021, while in prison and prior to his release on licence, the Secretary of State served on him a Notice of a decision to deprive him of British citizenship; such a Notice being a prescribed requirement under s. 40(5) of the British Nationality Act 1981 (‘1981 Act’), where the Secretary of State proposes to make a deprivation order. A Notice must specify that the Secretary of State has decided to make a deprivation order, the reasons for that decision, and provide information as to the right of appeal.

A mere half an hour after being served with the Notice of the deprivation decision, the Secretary of State made the actual deprivation order, under s. 40(2) of the 1981, depriving Mr Kolicaj of British citizenship on the basis that deprivation was ‘conducive to the public good’. By s. 40(2) the Secretary of State has discretion to deprive a person of citizenship if satisfied that deprivation is conducive to the public good. She also asserted that it would not leave him stateless (a s.40(2) decision is barred by s.40(4) if it would leave a person stateless, subject itself to further exception in s. 40(4A)).

Neither before the Notice was served nor before the Deprivation Order was made (a ½ hour later) was Mr Kolicaj given any opportunity to make representations as to why the Secretary of State ought not to deprive him of citizenship.

Thereafter, Mr Kolicaj exercised a right of appeal to the First-tier Tribunal (‘FTT’) under s. 40A of the 1981 Act against the Notice of the deprivation decision.  The FTT dismissed his appeal but on further appeal, the Upper Tribunal (‘UT’) allowed his appeal.

At the date of the Secretary of State’s deprivation decision, Mr Kolicaj was living in the UK with his wife, an Albanian citizen with limited leave, and two British citizen children.

Grounds before the Court of Appeal

The Court of Appeal granted the Secretary of State permission to appeal on the ground that the UT had erred in law in finding that the Secretary of State’s deprivation decision was made without her being aware that that she has a discretion to exercise and without her taking into account matters relevant to the exercise of her discretion. In turn, by way of a Respondent’s Notice, Mr Kolicaj sought to uphold the UT’s judgment for reasons different to or additional to those given by that tribunal: (i) the lack of any opportunity to make representations prior to the deprivation decision, and (ii) the decision having been made in the application of an unpublished policy only later disclosed (NB the Court did not go on to determine this matter).

Deprivation on conducive to the public good grounds – serious organised crime

The unpublished policy dated from May 2020 and was contained in a Home Office civil servant’s ministerial submission to the Secretary of State (who accepted it). It recommended use of the s.40(2) deprivation power against persons guilty of serious organised crime but only in the ‘most serious and high profile cases’. This was a limitation on the published policy in the Nationality Instructions (to Home Office caseworkers) wherein deprivation on conducive to the public good grounds for involvement in serious organised crime had not been made subject to further qualification. In giving the principal judgment for the Court, Lord Justice Edis noted that it was understood that deprivation in cases of serious organised crime was not  a regular occurrence (though His Lordship noted Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1854, [2019] 1 WLR 266 as an example) and that the new policy was designed to extend its use in more serious cases.

The deprivation decision-making process

In 2020, the National Crime Agency (‘NCA’) wrote to the Secretary of State to propose that she deprive Mr Kolicaj of his British citizenship and consider deporting him to Albania. The NCA considered that he would continue to pose risk (of re-offending) on completion of his custodial sentence. The subsequent Home Office submission to the Secretary of State recommended that Mr Kolicaj be deprived of his citizenship. Among the annexes attached was Annex C, an assessment of the impact of citizenship deprivation and thereafter of deportation on Mr Kolicaj’s human rights. As regards his rights under Article 8 European Convention on Human Rights (‘ECHR’) as protected by the Human Rights Act 1998, the submission stated:

 “full circumstances are not known at this time so only a preliminary assessment can be made. He will have the opportunity to make representations against each decision”… [his circumstances] “will only be known once he makes representations against both the decision to deprive his citizenship and the decision to deport him” [and any representations] “will be given careful consideration”.

A further Annex D assessed the children’s welfare pursuant to the s.55 of the Borders, Citizenship, and Immigration Act 2009 duty to have regard to the need to safeguard and promote the welfare of the children but was described in the document as an “initial assessment” to be kept under review and that “any representations will be fully considered”.

However, as already noted, Mr Kolicaj was not given an opportunity to make representations. The Notice given to him in prison said did not mention such an opportunity. Nor did that Notice make reference to Annex C and its express avowal that Mr Kolicaj would be able to make representations.

Two contextual factors bearing on procedural fairness

In giving judgment, the Court recorded two contextual factors that had altered the operation of the legal regime under the 1981 Act as regards citizenship deprivation and consequential appeals.

(1) The period of time between the Notice and the Order

First, as regards deprivation on ‘conducive to the public good’ grounds under s.40(2) of the 1981 Act, the Secretary of State had abandoned her practice of giving Notice of a deprivation decision but thereafter forbearing from making the deprivation order until four weeks after the exhaustion of appeal rights or confirmation there would be no appeal. She had done so in response to her concern that those dual nationals (British citizenship/other citizenship) so notified of a deprivation decision would otherwise have the opportunity to renounce their other nationality prior to the deprivation order being made and thus frustrate citizenship deprivation and deportation on the basis that they could then rely on the bar to deprivation under s.40(4); as noted, the latter precludes the making of a deprivation  order where the person would be left otherwise stateless. Instead, the new practice, as in this case, was to serve the Notice of the deprivation decision minutes before making the deprivation order, thereby precluding an opportunity for that person to renounce their other nationality.  Note, that the original practice remains in place as regards deprivation on fraud grounds under s. 40(3) of the 1981 Act (there being no statelessness bar to the making of a deprivation order under s.40(4) in such cases).

(2) The scope of appeal rights after Begum

Further, following R(Begum) v Special Immigration Appeals Commission [2021] UKSC 7, [2021] AC 765 , the scope of an appeal from a deprivation decision on conducive to the public good grounds under s.40(2) was restricted to a review on public law grounds and was not an appeal on the merits. That being so, on appeal there was no scope to adduce new material and to make representations that might affect the merits of the decision. While such material and representations could be advanced  in relation to the human rights aspect of the appeal under Article 8 ECHR, deprivation only has a limited impact on Article 8 ECHR rights, see Laci v. Secretary of State for the Home Department [2021] EWCA Civ 769; [2021] 4 WLR 379 at §25.

On account of these two contextual factors, there had been no opportunity to make representations prior to the deprivation order being made: for example, Mr Kolicaj could not argue that his criminal offending was not so serious as to fall within the scope of the deprivation policy. Nor could he argue that at present he had a very low risk of re-offending (such risk could be a relevant factor, though, as Lord Justice Edis noted, it was already established that such risk was not a condition precedent to the exercise of the deprivation power under s.40(2) of the 1981 Act).

The Court’s decision on procedural fairness: Mr Kolicaj’s Respondent’s Notice – Ground 1

The right to make representations prior to the exercise of a statutory power, subject to certain limitations, is well recognised:  Lord Justice Edis cited Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, per Lord Neuberger PSC at §179 in support. Those certain limitations were that (i) the statutory provisions concerned expressly or impliedly provided otherwise, or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity (such an argument needing to be ‘closely examined’ by the Court).

In addition, His Lordship  cited R (Balajigari) v Secretary of State [2019] EWCA Civ 673, [2019] 1 WLR 4647 at §60 for the proposition that unless the circumstances of a particular case rendered pre-decision representations impracticable, the opportunity to make only post-decision representations is usually insufficient to establish common law procedural fairness.

With that in mind, His Lordship held that s.40 of the 1981 Act neither expressly nor by implication provided that there should be no right to make representations, observing also that the s.40(5) Notice requirement suggested that Parliament had placed a high value on procedural fairness.

His Lordship accepted that it was legitimate for the Secretary of State to operate a system in which she informs the person affected of the deprivation order only after it is made because of the risk of renunciation of the other nationality (and therefore because of the risk of the deprivation procedure being frustrated). However, absent a full appeal on the merits to the FTT, he held that the Secretary of State ought to say at the time that she is willing to review her decision by conducting a merits-based evaluation in the light any representations or evidence which that person supplies. Absent such a safeguard, for want of procedural fairness, the Notice and the deprivation order fell to be quashed. His Lordship noted that it was for the Secretary of State to devise a fair procedure and that she should give immediate attention to considering the fairness of the procedure presently being followed.

The Court’s decision on the exercise of discretion: The Secretary of State’s appeal

As Lord Justice Edis had held that the deprivation order fell to be quashed on procedural fairness grounds, he considered that the appeal concerning the exercise of discretion was of ‘lesser significance’. Nonetheless, His Lordship considered the competing arguments and concluded that the UT had fallen into error in finding that there was no evidence that the Secretary of State knew she had a discretion or that she had ever exercised it. Her consideration of the children’s interests under s.55 of the Borders, Citizenship and Immigration Act 2009 militated against such a finding by the UT.

Further, His Lordship held that the briefing documents submitted to the Secretary of State demonstrated awareness of the discretion. His Lordship would have allowed the Secretary of State’s appeal against the UT’s quashing of the deprivation order but for Mr Kolicaj having succeeded in upholding the UT’s decision on the basis that the Secretary of State’s decision was procedurally unfair. The consideration of this this ground by the Court is another illustration of the high bar set judicially to challenging the lawfulness of deprivation decisions by reference to the Secretary of State’s approach to her discretion. In future cases, close examination of the fairness of the procedure used in a given case may offer more scope on appeal.