Supreme Court allows nationality appeals

Thursday 21 December 2017

Counsel for the appellants were Sonali Naik and Helen Foot of Garden Court Chambers, led by Stephen Knafler QC of Landmark Chambers. The appellants were represented by Naim Hasani of Duncan Lewis Solicitors.

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In a judgment handed down today, the Supreme Court of the United Kingdom has allowed the appeals in the case of R (Hysaj) v Secretary of State for the Home Department; R (Bakijasi) v Secretary of State for the Home Department [2017] UKSC 82.

Following the grant of permission to appeal on 27 February 2017, the Secretary of State conceded the appeals and applied to the Supreme Court for the appeals to be allowed by consent, overturning the Court of Appeal's judgment below and with it a long established line of now wrongly decided authority. Today’s judgment, which sets out the Court’s reasoning for allowing the appeals, gives effect to that concession and vindicates the appellants’ legal submissions over the last 4 years.

The appellants were both Albanian citizens who falsely claimed to be from Kosovo and subsequently obtained indefinite leave to remain (‘ILR’) and then British citizenship by naturalisation. They challenged decisions by the Secretary of State to treat their citizenship as a ‘nullity’; in other words, they were not, and never had been, British citizens. They argued instead that the effect of their fraud was that they remained British citizens until and unless they were deprived of citizenship under section 40(3) of the British Nationality Act 1981.

The Secretary of State accepted this argument, and has agreed that her decisions to treat the appellants’ citizenship as a nullity were unlawful. Importantly, the Court’s judgment, given by Lady Hale (with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord Hodge agree) limits the nullity doctrine to all but a small number of cases and marks an end to the uncertainty and confusion caused by the law in this area.

Central to the Court’s reasoning was the ‘illogical and unsatisfactory’ effect of the nullification doctrine on the citizenship status of innocent third parties such as spouses and children. The consent order appended to the judgment reflects this principle: the Secretary of State has agreed that the appellants’ children, whose status derives from that of the appellants, are all British citizens.

This judgment will have wide-ranging consequences, since there are many cases stayed in the Administrative Court and Court of Appeal which will now be reviewed by the Secretary of State as the result of the judgment.

Sonali Naik and Helen Foot are members of the Garden Court Chambers Immigration and Public Law Teams. 

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