Secretary of State for the Home Department v Kolicaj [2025] UKSC 49

The Secretary of State appealed against a Court of Appeal ruling that found procedural unfairness in the deprivation of Mr Kolicaj's British citizenship without offering him an opportunity to make representations. The Supreme Court allowed the appeal, holding that the statutory appeal process under section 40A satisfies fairness requirements.

Facts

Mr Gjelosh Kolicaj, an Albanian national who became a naturalised British citizen in 2009, was convicted in 2018 of conspiracy to launder approximately £8 million in criminal proceeds. He received a six-year prison sentence. On 22 January 2021, the Secretary of State served him with notice of intention to deprive him of citizenship under section 40(2) of the British Nationality Act 1981, followed immediately by the deprivation order. This swift service was deliberate to prevent Mr Kolicaj from renouncing his Albanian citizenship to avoid the order.

Procedural History

Mr Kolicaj appealed to the First-tier Tribunal (FTT), which dismissed his appeal. The Upper Tribunal allowed his appeal on grounds the Secretary of State failed to exercise discretion properly. The Court of Appeal upheld the Upper Tribunal’s decision but on different grounds, finding procedural unfairness because Mr Kolicaj was not given opportunity to make representations before the deprivation decision.

Issues

1. Whether procedural fairness required the Secretary of State to offer to reconsider her decision on the merits after making the deprivation order.

2. Whether the Court of Appeal erred in quashing the Order.

3. Whether the Secretary of State was obliged to investigate Albanian citizenship renunciation procedures before proceeding.

4. Whether the application of an unpublished policy (the May 2020 submission) rendered the decision unlawful.

5. Whether the Secretary of State failed to properly exercise her discretion under section 40(2).

Judgment

Lord Sales (with whom Lord Reed, Lord Lloyd-Jones, Lord Briggs and Lord Stephens agreed) allowed the Secretary of State’s appeal and dismissed Mr Kolicaj’s cross-appeal.

Nature of Appeals under Section 40A

The Court clarified that appeals to the FTT under section 40A are full substantive appeals on the merits, not merely judicial reviews. Lord Sales emphasised:

“It is not correct to say, as the Court of Appeal and the tribunals in the present case and in other cases appear to have thought, that an appeal to SIAC under section 2B is limited to public law grounds rather than the merits of the case. The appeal is always on the merits of the case.”

Procedural Fairness

The Court held there was no “fairness gap” in the statutory regime. The right of appeal satisfies fairness requirements because:

“An individual affected by a deprivation decision has the right to challenge it by an appeal in which they can introduce evidence of their own and make any representations they wish. The decision which is the ultimate subject of consideration by the FTT… is the decision which the Secretary of State seeks to maintain and defend after taking account of any such new evidence and any such representations.”

No Pre-Decision Representations Required

Lord Sales held that sections 40 and 40A impliedly exclude any requirement for pre-decision representations:

“It would plainly jeopardise the ability of the Secretary of State to take the swift and decisive action of a kind which the regime is intended to allow if she first had to investigate in detail what might be a very complex legal position under foreign law.”

Unpublished Policy

While the May 2020 submission constituted policy that should have been disclosed, Mr Kolicaj suffered no unfairness because he learned of it during his appeal and had full opportunity to challenge its application.

Implications

This judgment significantly clarifies the deprivation of citizenship regime following the trilogy of Begum No 1, N3 and U3. It establishes that the statutory appeal process provides complete procedural protection, meaning the Secretary of State need not offer pre-decision representations or post-decision merits reviews. The judgment confirms that appeals can consider new evidence arising after the original decision, with the Secretary of State continuously reviewing her position throughout proceedings. This provides important guidance for practitioners and tribunals handling citizenship deprivation appeals.

Verdict: The Supreme Court allowed the Secretary of State’s appeal and dismissed Mr Kolicaj’s cross-appeal. The deprivation of citizenship decision was upheld as lawful, with the Court finding no procedural unfairness in the statutory regime.

Source: Secretary of State for the Home Department v Kolicaj (UKSC/2025/0043)