Tribunal: nullified nullification no barrier to deprivation of British citizenship

Taking away people’s citizenship became a popular pastime for Home Secretary Theresa May.

One way in which British citizens are stripped of their status is called citizenship “deprivation”, which is a process defined by statute and with the safeguard of an appeal provided by Parliament. Citizenship deprivation can be on grounds of public good, as in cases such as that of Shamima Begum, or on the basis that the person deceived the authorities in order to acquire citizenship. The person’s citizenship is recognised as having been granted but is then taken away again.

The other way is “nullification” which was previously an obscure common law process used in cases where someone pretended to be someone else in order falsely to claim citizenship. Where someone had falsely acquired citizenship in this way, the Secretary of State would simply declare that the person’s British citizenship was a nullity and had never truly existed; they never really had been British in the first place. There were no procedural safeguards and no right of appeal, although an application for judicial review could be pursued instead.

In a case called Hysaj [2017] UKSC 82, the Supreme Court held that the Home Office had been wrongly using the nullification process instead of the deprivation process. Essentially, the Supreme Court found that the vast majority of decisions to nullify British citizenship were unlawful. As a result, the Home Office went through its files and withdrew most of its nullification decisions. This meant that these people turned out still to be British citizens after all.

At least, for now. Would the Home Office now pursue deprivation action against them instead?

The answer, at least in some of the cases, is yes, as this latest version of the long running Hysaj litigation shows: Hysaj (Deprivation of Citizenship:Delay) Albania [2020] UKUT 128 (IAC).

Background

Mr Hysaj, having won in the Supreme Court, had his nullification decision withdrawn in February 2018. But a few months later, the Home Office issued a decision to deprive him of his British citizenship instead.

One can see why, when looking at the facts. Mr Hysaj, an Albanian national, arrived in the UK in 1998 aged 21 and claimed to be a 17-year-old refugee from Kosovo. Still using that false identity, he was recognised as a refugee and later acquired British citizenship. His lies unravelled when he sponsored his Albanian wife to join him in the UK and in 2008 the Home Office informed him that he was being considered for deprivation of citizenship.

Resisting the decision to deprive Mr Hysaj of his British citizenship, his legal team argued in summary that:

1. There has been massive delay since the original consideration of deprivation action back in 2008. It was “unfair and unreasonable” (and therefore unlawful) for the Home Office to follow that course now, so many years later.
2. The Home Office had previously operated a general rule that citizenship deprivation action wouldn’t be pursued if the person had been resident in the UK for 14 years or more, and Mr Hysaj had a legitimate expectation that this policy would be applied in his case.
3. Alternatively, the taking of a decision all these years later (after the 14 year policy had been rescinded in 2014) was an historic injustice and therefore unlawful.
4. There was substantive unfairness in the case because Mr Hysaj could point to others in a very similar situation to his — i.e. they had pretended to be young Kosovans in order to get refugee status then citizenship — but who had been subject to deprivation action from the start, not nullification, and had therefore benefited from the 14 year policy.
5. The Home Office should not be allowed to re-write the 14 year policy in order to take account of the appellant’s later criminal conviction.
6. The later criminal conviction was not relevant to the decision to deprive the appellant of citizenship on the grounds of deception.

Ultimately the appeal is dismissed and the decision to deprive Mr Hysaj of his British citizenship is upheld. Whether this is the end for Mr Hysaj remains to be seen.