On 27 February 2017, the Supreme Court of the United Kingdom granted permission to the appellants, as to the lawfulness of the decisions of the Secretary of State for the Home Department (“SSHD”) to treat the appellants’ British citizenship as null and void from the outset on the basis that it had been obtained by fraud.
These appeals involve issues of significant public importance, concerning the proper application of the statutory provisions on issues of deprivation or nullity and the fine distinction that should be drawn between the two. The Supreme Court will now consider if the appellants are:
- British citizens who obtained citizenship by means of fraud and who are liable to be deprived of their citizenship through the process laid down in the British Nationality Act 1981; or
- Persons who never became British citizens at all because their apparent citizenship was a nullity from the start.
The appellants’ central contention in these appeals is that where a person is a British citizen, who obtained citizenship by means of fraud for the purposes of section 40(3) of the British Nationality Act 1981 (“BNA 1981”), that person is liable to be deprived of citizenship under the machinery in that Act and not, as the SSHD contends, a person who never became a British citizen in the first place.
The appeals were heard together as lead test cases initially before Mr Justice Ouseley in the Administrative Court on 27 February 2014. Following a full hearing on 12 November 2015 before Lord Justices Kitchin (presiding), Floyd and Sales, the Court of Appeal rejected the appellants’ appeal on 25 November 2015 and concluded that the respondent was entitled to treat the grant of British citizenship as a nullity. Whilst dismissing the appeals, the Court of Appeal stated that “the interpretation of the 1981 Act … is one which is problematic in various respects. …this is an area in which it would be desirable for Parliament to clarify the law by express statutory provision” (paragraph 64). To date Parliament has not done so.
There are a number of applications for Judicial Review in the Administrative Court and appeals to the Court of Appeal, which have been stayed, pending the outcome of the Appeal to the Supreme Court and the grant of permission marks an important step towards the final settlement of the fundamental issues of legal principle, concerning deprivation and nullity under British nationality law. Moreover there are a number of individuals affected by these proceedings, including the spouses and children (some of them British) of those who committed the fraud.
The hearing is not likely to take place until the end of this year or early next year, with a final judgment not likely before Spring 2018. Until then, the Secretary of State is likely to continue to suspend decision making in cases involving similar issues, pending the final outcome of these proceedings.
The first two appellants are represented by Naim Hasani, Solicitor at Duncan Lewis Solicitors. The third appellant is represented by Appleby Shaw Solicitors.
Counsel are Stephen Knafler QC of Landmark Chambers, Sonali Naik and Helen Foot of Garden Court Chambers acting on behalf of all three appellants.