The UKSC considered whether procedural fairness required the Secretary of State to offer to reconsider a citizenship deprivation decision on the merits after making it without prior representations. The Court held no fairness gap existed because the statutory appeal to the FTT provided a full merits-based remedy, not merely judicial review.
Background
Mr Gjelosh Kolicaj, born an Albanian national, became a naturalised British citizen on 5 February 2009. Following conviction on 27 February 2018 for conspiracy to remove proceeds of criminal conduct from England (involving approximately £8 million transported via 65 flights), he was sentenced to six years’ imprisonment. The sentencing judge placed his offending in the highest culpability bracket under the Sentencing Guidelines, finding money laundering on a ‘serious organised basis’.
On 17 December 2020, a civil service submission recommended that the Secretary of State exercise her power under section 40(2) of the British Nationality Act 1981 to deprive Mr Kolicaj of British citizenship. This followed a May 2020 ministerial submission which had narrowed the deprivation policy to focus on ‘the most serious and high profile cases’. On 22 January 2021, the Secretary of State served notice of intention to make a deprivation order on Mr Kolicaj in prison, followed approximately 30 minutes later by the deprivation order itself. This rapid sequence was deliberately adopted to prevent Mr Kolicaj from renouncing his Albanian citizenship and thereby rendering himself stateless, which would have precluded the order under section 40(4).
The Issue(s)
Five issues arose for determination:
Issue 1 (Secretary of State’s appeal)
Whether procedural fairness required the Secretary of State, having made a deprivation order without giving Mr Kolicaj prior opportunity to make representations, to offer to review the decision on its merits based on his representations.
Issue 2 (Secretary of State’s appeal)
Whether the Court of Appeal erred in quashing the deprivation order.
Issue 3 (Cross-appeal)
Whether the Secretary of State was obliged to investigate the risk of Mr Kolicaj renouncing Albanian citizenship before proceeding without prior representations.
Issue 4 (Cross-appeal)
Whether the deprivation decision was unlawful because it was made by applying the unpublished policy in the May 2020 submission.
Issue 5 (Cross-appeal)
Whether the Secretary of State failed to exercise her discretion under section 40(2), as opposed to merely satisfying herself that the precondition was met.
The Court’s Reasoning
The nature of an appeal under section 40A
The determinative reasoning centred on the true nature and scope of a statutory appeal against a deprivation decision. The Court of Appeal, the FTT, and the Upper Tribunal had all proceeded on the erroneous assumption that an appeal under section 40A was confined to examining the lawfulness of the Secretary of State’s decision by reference to the circumstances at the date it was made, applying only public law grounds. Lord Sales, delivering the unanimous judgment, held this was fundamentally wrong.
Drawing on three prior Supreme Court decisions — Begum No 1, N3, and U3 — Lord Sales explained that the appeal is a full substantive appeal on the merits, not merely a judicial review exercise. Different legal principles apply to different aspects of the decision under challenge. On some issues (such as statelessness or fraud), the tribunal must make its own findings on the evidence before it. On others (such as whether the ‘conducive to the public good’ precondition is met), the tribunal accords the Secretary of State’s judgment respect equivalent to that in judicial review, reflecting her democratic authority and institutional expertise. On human rights compatibility, the tribunal determines the issue objectively.
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, it is just that different principles are applicable to determine those merits depending on each particular aspect of the decision which is under challenge.
Crucially, applying the reasoning in U3, new evidence can be adduced on appeal which was not available to the Secretary of State. The Secretary of State keeps the deprivation decision under review throughout the appeal process in light of new evidence and submissions, and it is the decision as so maintained which is treated as being under challenge.
The analysis in Begum No 1, N3 and, in particular, U3 as explained above, shows that there is no fairness gap of the kind contemplated by the Court of Appeal, to which its judgment was a response. 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.
Issue 1: No obligation to offer reconsideration
Since the statutory appeal provided a full opportunity to present evidence and make representations, there was no procedural fairness gap requiring the Secretary of State to create an additional reconsideration procedure. The Court of Appeal’s contrary conclusion was based on its erroneous view of the limited nature of the appeal.
Issue 3: No obligation to investigate Albanian renunciation law
Lord Sales held that sections 40 and 40A impliedly exclude any requirement for prior representations. The statutory procedure focuses on post-decision notice and appeal, not pre-decision consultation. Parliament legislated with appreciation that renunciation of foreign citizenship was possible and designed a deliberately simple procedure capable of being operated without that risk.
It would be contrary to the intention of Parliament and would undermine the proper application of the regime to say that the Secretary of State is required to make an evaluative assessment of foreign law in order to decide whether to invite the individual to make representations.
Issue 4: Unpublished policy
Lord Sales rejected the Secretary of State’s contention that the May 2020 submission did not constitute a policy, finding it was materially different from the Nationality Instructions and narrower in its criteria. However, he held that by the time of the FTT hearing, Mr Kolicaj knew about the May 2020 submission and had a full opportunity to argue that his case fell outside its criteria. Since fairness was satisfied through the appeal process rather than at the initial decision stage, no unfairness resulted.
The difficulty for Mr Kolicaj, however, is that by the time of the hearing of his appeal in the FTT he did know about the policy statement in the May 2020 submission and had an opportunity, which he took, to make submissions why his case fell outside the criteria in that policy statement.
Issue 5: Exercise of discretion
The Court agreed with the Court of Appeal that the Secretary of State had properly exercised her discretion under section 40(2), as evidenced by the December 2020 submission’s consideration of the May 2020 policy, section 55 children’s welfare, and article 8 ECHR matters — all going beyond the mere precondition.
Issue 2: Quashing versus setting aside
Lord Sales clarified that while ‘quashing’ is not the apt term for a successful appeal (which is not judicial review), the FTT and SIAC do have incidental power to set aside the decision and associated notice and order when an appeal succeeds. He recommended that tribunals make clear orders reflecting the effect of their judgments.
Practical Significance
This judgment is significant in several respects. First, it authoritatively confirms that appeals to the FTT under section 40A are substantive merits appeals with identical characteristics to SIAC appeals under section 2B, correcting a widespread misunderstanding in the tribunal system that such appeals were confined to public law review of the decision at the date it was taken. Second, it establishes that there is no requirement for the Secretary of State to give an individual an opportunity to make representations before making a citizenship deprivation decision; the statutory scheme in sections 40 and 40A impliedly excludes such a requirement. Third, it confirms that the Secretary of State is not required to investigate foreign law on renunciation of citizenship before proceeding without prior notice. Fourth, it provides important guidance on the consequences of applying an unpublished policy, holding that while such application is prima facie unlawful following Lumba, the defect is cured where the policy is disclosed during the appeal and the appellant has a full opportunity to challenge its application. The decision consolidates and applies the analytical framework from Begum No 1, N3, and U3 to the FTT context, providing definitive guidance for future deprivation appeals.
Verdict: The Secretary of State’s appeal was allowed. Mr Kolicaj’s cross-appeal on all grounds was dismissed. The Court of Appeal’s finding of procedural unfairness was overturned, and the deprivation of citizenship decision was upheld.
Source: Secretary of State for the Home Department v Kolicaj [2025] UKSC 49
