R (on the application of Hysaj & Ors) v Secretary of State for the Home Department [2017] UKSC 82

Two Albanian nationals obtained British citizenship by naturalisation using false details. The Supreme Court held that such fraudulently obtained citizenship is valid until formal deprivation under section 40 of the British Nationality Act 1981, overruling earlier Court of Appeal authority on nullity.

Facts

The two appellants were Albanian nationals who obtained British citizenship by naturalisation using fraudulent information. Mr Hysaj used his real name but claimed a false date of birth, a false nationality (Federal Republic of Yugoslavia/Kosovo) and a false place of birth when seeking asylum in 1998. He was granted refugee status, then indefinite leave to remain (ILR), and was naturalised as a British citizen in 2004 using the same false details.

Mr Bakijasi used a false name (Agron Adjini), a false date of birth, and falsely claimed Yugoslav/Kosovan nationality. Although his asylum claim was refused, he was granted ILR in 2005 under the Family ILR exercise and naturalised in November 2006 using those same false details.

When the frauds came to light, the Secretary of State decided in each case that the grant of citizenship was a nullity, meaning the appellants had never been British citizens, and that they had remained on ILR throughout. That decision was upheld by Ouseley J and the Court of Appeal on the basis of binding authority, although Sales LJ described that authority as “problematic in various respects”.

Issues

The central issue was whether the misrepresentations made by the appellants in their applications for British citizenship rendered the grant of citizenship a nullity (so that they had never been citizens at all), or whether the grants were valid but liable to be set aside by way of deprivation under sections 40 and 40A of the British Nationality Act 1981.

Procedural Posture

The appeals reached the Supreme Court on an unusual basis. The Secretary of State applied under rule 34(2) of the Supreme Court Rules 2009 to allow the appeals by consent. The Court took the view that it could not make such an order without understanding the reasons and their impact on the point of law of general public importance. The Secretary of State provided detailed reasons with which the Court agreed, and the judgment was based on those reasons.

The Legislation

Section 6(1) of the British Nationality Act 1981 empowers the Secretary of State, if satisfied that an applicant meets the Schedule 1 requirements, to grant a certificate of naturalisation. Section 40 allows the Secretary of State to deprive a person of citizenship obtained by registration or naturalisation where the citizenship was obtained by “fraud, false representation or concealment of a material fact”. Section 40A provides a right of appeal against most such deprivation decisions to the First-tier Tribunal.

Previous Case Law

The Court reviewed four previous Court of Appeal decisions. In Ex p Sultan Mahmood [1981] QB 58, X impersonated a deceased real person, Y, and Roskill LJ held that the purported grant could not have been to Y (who was dead) or to X (who was unknown to the Secretary of State), and was therefore a nullity. In Ex p Parvaz Akhtar [1981] QB 46, the Court extended this reasoning to a case where X was registered as a minor child of a British citizen using a false identity. In Ex p Ejaz [1994] QB 496, the Court declined to apply the nullity approach where X applied in her real name but her husband’s British citizenship turned out to be invalid, citing the uncertainty and injustice of retrospective nullification. In Bibi v Entry Clearance Officer, Dhaka [2007] EWCA Civ 740, the nullity approach was applied where X had assumed the identity of another real person to enter the UK and then naturalised in that identity.

Arguments and the Secretary of State’s Revised Position

The Secretary of State, on reviewing the matter, concluded that the law had taken a wrong turning after Mahmood. Mahmood itself remained good law because it involved two real people and the Secretary of State had effectively considered the citizenship application of someone (Y) who had never applied. However, in the later cases, X had personally applied, had personally been considered, and had personally met the substantive requirements for citizenship, albeit in a false identity created for him. In such cases the grant should be regarded as valid, leaving the Secretary of State to deprive X of citizenship under section 40 if appropriate. The Secretary of State accepted that Ejaz was rightly decided, but that Akhtar and Bibi were wrongly decided.

The Secretary of State also submitted that the nullity doctrine, as developed, lacked any clear or principled definition of which types of identity fraud were sufficiently serious to nullify a grant. Ouseley J had identified name, date of birth, nationality and place of birth as the key characteristics, but had also held that fraud (not innocent mistake) was required. This left the law difficult to apply and produced illogical consequences for derivative citizenship claims by spouses and children, and would logically also nullify grants of ILR, a result the Secretary of State had never sought.

Judgment

The Supreme Court agreed with the Secretary of State’s revised reasoning. Mahmood remained good law, because in cases involving impersonation of a real, distinct person, there is no genuine grant of citizenship to either party. However, where an applicant uses a false identity which is his own construct (whether involving a false name, false date of birth, false nationality, false place of birth, or a combination), and personally acquires and is assessed against the requirements for citizenship, the grant is valid. Such a person may be deprived of citizenship under section 40, but the citizenship is not a nullity.

The decisions of the Court of Appeal in Akhtar and Bibi were overruled. The appeals were allowed by consent and the order of the Court of Appeal of 26 November 2015 was set aside. The Secretary of State accepted that the appellants were British citizens by naturalisation under section 6(1) of the 1981 Act, that their citizenship remained valid unless and until a formal deprivation order was made under section 40(3), and that her earlier “nullity” decisions were wrong in law. The Secretary of State also accepted the British citizenship of the appellants’ children deriving from their parents’ status.

Implications

The decision significantly narrows the nullity doctrine in British nationality law. Following this judgment, where a person personally applies for and is granted citizenship, even using false personal details such as name, date of birth, nationality or place of birth, the grant is legally effective. The proper route for the Secretary of State to address such fraud is deprivation under section 40 of the British Nationality Act 1981, which carries a statutory right of appeal under section 40A.

The decision matters particularly to individuals who obtained citizenship through misrepresentation, and to their spouses and children whose status depends on theirs. By rejecting nullification, the Court avoids the retrospective uncertainty and injustice highlighted in Ejaz, including effects on third parties and on matters of status. It also resolves the difficulty, identified by Ouseley J, of defining which characteristics of identity are central enough to engage the nullity doctrine, and avoids the inconsistency with the treatment of derivative citizenship and ILR.

The decision preserves Mahmood in its original, narrow form: a purported grant made on the basis of the impersonation of another real person remains a nullity, because in such a case neither the actual applicant nor the impersonated individual has truly been granted citizenship. The wider significance is the reaffirmation that loss of citizenship for fraud should ordinarily proceed through the statutory deprivation regime, with its procedural safeguards, rather than through the blunt and retrospective mechanism of treating citizenship as never having existed.

Verdict: Appeals allowed by consent. The Court of Appeal’s order of 26 November 2015 was set aside. The Supreme Court held that the appellants were validly British citizens by naturalisation under section 6(1) of the British Nationality Act 1981, and that their citizenship remained valid unless and until a formal deprivation order was made under section 40(3). The Court of Appeal decisions in Akhtar and Bibi were overruled.

Source: R (on the application of Hysaj & Ors) v Secretary of State for the Home Department [2017] UKSC 82