An application for British citizenship may contain serious lies. Does the grant then have to be formally withdrawn, or can the Home Secretary say there was never a citizen at all? The difference mattered both to the applicants’ right of appeal and to children whose status depended on theirs. In these two cases the grant had been made to the person who applied.
The two grants
Mr Hysaj applied for asylum using his own name but gave a false age and falsely claimed to come from Kosovo. He received refugee status, indefinite leave to remain and, in 2004, British citizenship by naturalisation.
Mr Bakijasi also falsely claimed to come from Kosovo and used an invented identity. He later received indefinite leave to remain and was naturalised in 2006. Neither applicant had presented himself as another actual person.
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When the frauds came to light, the Secretary of State treated each grant as a nullity: the men were not, and never had been, British citizens, although their indefinite leave remained valid. She relied on binding Court of Appeal authority. Ouseley J upheld the decisions with some reluctance, and the Court of Appeal did likewise. Sales LJ described the interpretation required by that authority as problematic in various respects. Mr Kaziu’s case had been decided on the same basis. It was not an appeal before the Supreme Court, but the Secretary of State accepted that these principles should also apply to him.
Nullity or deprivation
The issue was whether the misrepresentations made the grants void from the outset, or left the men as citizens who could be deprived of citizenship under sections 40 and 40A of the British Nationality Act 1981. Section 6(1) permits naturalisation where the Secretary of State is satisfied that an adult applicant meets the statutory requirements. Section 40 permits deprivation where citizenship by registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. Section 40A provides an appeal to the First-tier Tribunal against most deprivation decisions. Lady Hale said that, on the face of the Act, the misrepresentations here could support deprivation if the Secretary of State thought fit.
A nullity is different. It means there was never a grant, so the person was never a citizen and the deprivation appeal does not arise. Earlier authority had also warned that treating someone as never having been a citizen can cause uncertainty and injustice, including for third parties such as children, whereas deprivation is not retrospective.
The widening nullity cases
Four Court of Appeal decisions were relevant; none had reached the House of Lords or Supreme Court. In Mahmood, decided in 1978, the applicant impersonated a real person, his dead brother-in-law and cousin. Roskill LJ held that the grant could not have been to the dead man, nor to the impersonator, of whom the Secretary of State knew nothing. It was therefore of no effect.
Akhtar applied that reasoning where a child was registered in a name and as the son of a British citizen, although he was not that man’s son. The Secretary of State had neither power nor intention to register him, so he never became a citizen. Ejaz went the other way: the applicant used her real name but was naturalised as the wife of a man who had never been British. The Court of Appeal refused to treat the grant as void. Bibi returned to nullity. The applicant had used the identity of another real person to enter the United Kingdom and was later registered in that name; his wife and four children could not rely on citizenship which had never been granted.
The Secretary of State described this as a gradual expansion, which the present cases took further. Mahmood concerned impersonation of a real person who already had the required characteristics. Later cases treated an invented identity, or the use of a false identity to acquire those characteristics, as making the grant void as well.
The wrong turning
After permission to appeal was granted on 27 February 2017, the Secretary of State concluded that the law had taken a wrong turning after Mahmood. Giving judgment for a unanimous court, Lady Hale agreed.
The Court kept the narrow distinction illustrated by Mahmood. Where an applicant impersonates another real person, the person considered for citizenship may never have applied and the applicant may never have been considered. Here the individuals who applied were the people considered and naturalised, despite the false details. The statutory power to deprive them of citizenship for fraud addressed that situation.
The court accepted that there was no clear definition of fraud serious enough to make a grant void. Neither man had pretended to be another real person. Mr Hysaj used his own name but false details, and obtained citizenship through leave granted to him. Mr Bakijasi used a false name to obtain leave, but otherwise did the same. Ouseley J had treated the name, date of birth, and nationality or place of birth as the key details because they appeared on the certificate, while also requiring fraud rather than an innocent mistake. That uncertainty made the law hard to apply. It was also unclear when a spouse’s or child’s derivative citizenship would fall, and the same logic would have nullified the grants of indefinite leave, for which the Secretary of State had never contended.
Verdict: The Court unanimously allowed both appeals by consent and set aside the Court of Appeal’s order. The Home Secretary agreed to withdraw the nullity decisions and recognised the citizenship of the appellants and their children as recorded in the order. The Court did not make a deprivation order. Akhtar and Bibi were overruled.
Source: R (Hysaj and others) and Bakijasi v Secretary of State for the Home Department [2017] UKSC 82
