Hysaj & Ors, R.( On the Application of) v Secretary of State for the Home Department

This is an appeal from the judgment of Ouseley J in which he decided that each of the three appellants, Mr Hysaj, Mr Bakijasi and Mr Kaziu, had not in fact become British citizens when issued with certificates by the Secretary of State purporting to register them as having citizenship by naturalisation. This was on the basis that they had fraudulently deceived the Secretary of State when they first came to this country and thereby obtained indefinite leave to remain (“ILR”), which they then relied upon when applying to become British citizens pursuant to the British Nationality Act 1981 (“the 1981 Act”).

Although the appellants told various lies about themselves, the common theme in the three cases is that when they came to the United Kingdom they each fraudulently claimed that they were ethnic Albanians from Kosovo who faced persecution there and so should be granted asylum in the United Kingdom. In truth, however, each of them was a national of Albania with no entitlement to asylum. As Mr Knafler QC, who appeared on their behalf, correctly and sensibly acknowledges, these fraudulent claims represented a serious abuse of the right of refugee protection. Nonetheless, he submits, the Secretary of State has not addressed the frauds in the correct way.

Although the Secretary of State has a power under section 40 of the 1981 Act to make an order to deprive a naturalised British citizen of his citizenship, in relation to which there is a right of appeal under section 40A, she did not exercise that power in these cases. Instead, when the Secretary of State discovered the frauds she wrote to each appellant to inform him that, relying on previous decisions of this court in relation to the earlier relevant statutory provision, section 20 of the British Nationality Act 1948 (“the 1948 Act”), his naturalisation was “null and void” by reason of having been obtained “by means of impersonation” and that he was not, and never had been, a British citizen.

No right of appeal arises in these circumstances, but the appellants brought these judicial review proceedings to challenge the Secretary of State’s decision in each case to treat their naturalisation as being invalid. Their claim for judicial review having failed before Ouseley J, they now appeal to this court with permission granted by the judge.

I gratefully adopt the helpful and succinct account of the facts of each case provided by Ouseley J in paras. [3]-[15] of his judgment, as follows:

“3.

Agron Bakijasi: he arrived in the UK in 1999 and claimed asylum. He gave a false name, false birth date, (though not one which made him a minor), and false nationality. He gave a false account of persecution in Kosovo. His claim was refused on the basis that it was safe for him to return to Kosovo in 2004; he applied for leave to remain under the Family ILR Exercise, using the same false details, and was granted ILR on 21 September 2005. Bakijasi does not contend that the false particulars were immaterial to the grant of ILR: the grant letter is headed with the false name, false date of birth and false nationality. He does contend that it was not determinative of the reasons for the grant by the Defendant. His first son, born in the UK in August 2003, with his birth registered in his father's false surname and his father's false nationality, was granted ILR as his dependant; Bakijasi applied on his behalf in the false surname.

4.

Bakijasi applied for naturalisation in October 2006 using the same false details as to name, date of birth and nationality. He was naturalised on 30 November 2006, the certificate bearing the same false details. The standard certificate states that it does not certify the accuracy of the personal particulars.

5.

He applied for his first son to be registered as a British citizen, using his false surname as the father, and giving his son's nationality as Kosovan. Bakijasi's second son, born in the UK in 2007, purportedly became a British citizen by birth, other than by descent. His birth certificate also gives the false surname and father's false nationality. They all have British passports on which they travel.

6.

Bakijasi was untruthful in a number of other respects, in particular about the whereabouts of the mother of the children, an overstayer from 2001, but who returned to Albania with her two sons in 2007 in an attempt to regularise her immigration status. This led to the discovery of her husband's lies. Her appeal against the refusal of entry clearance, refused in May 2010 in part because of her immigration record and her own use of false documents, was allowed and in March 2011 she was granted a visa to return to the UK. She returned with the two children. She married Bakijasi, in his false name in 2011. On 9 October 2013 she was granted ILR.

7.

On 28 October 2009, following an enquiry on behalf of Bakijasi, the UKBA wrote saying that action to deprive him of his nationality was possible but not likely since he had been granted ILR in the Family Exercise. On 18 February 2010 it wrote saying that the recommendation was against action being taken to deprive him of his nationality. On 19 March 2010, it wrote again saying that that remained the position but Tribunal decisions were awaited which would have a bearing on the decision; it was important that the bona fides of a case be determined.

8.

On 27 June 2013, the SSHD wrote saying that Bakijasi was not and never had been a British citizen; his citizenship was a nullity. That is the decision now challenged by him. The letter explained that the delay in issuing this decision was caused by a number of appeals against deprivation decisions which delayed finalising the decision in this case. The decision not to deprive him of citizenship was because his case came within the policy for excluding certain cases from that process; here it was that he had been granted ILR under the "family amnesty". The letter continued:

"In addition, we also reviewed our policy on recognising a grant of citizenship as null and void based on current case law. The out come of this review is that it is possible that a grant of citizenship may, in some cases, be regarded as null and void if an individual has applied to naturalise using false particulars. In the light of the information now provided, the Secretary of State is satisfied that the naturalisation was obtained by mean of impersonation."

9.

Consequently he had never been a British citizen and his certificate should be returned for cancellation. He reverted to his previous status of having ILR, but, warned the letter, the 2005 decision would be reviewed in the light of his conduct. His passport should be returned. The SSHD warned that she would defend robustly any judicial review. Ms Chan did not let her down.

10.

It is, however, not disputed by the SSHD that the two children are British citizens, and she does not contend that nullifying his citizenship would nullify theirs. Nor does she contend that the grant of ILR to him was a nullity or would become a nullity, if his citizenship were held to be a nullity. She also accepts that at the time when he applied for naturalisation that he had ILR.

11.

Dinjan Hysaj: he arrived in the UK and claimed asylum in July 1998, giving his true name but a false date of birth, making him a minor born in 1981, whereas he was born in 1977; he also alleged that he was from Kosovo, a citizen of the Federal Republic of Yugoslavia, where he claimed falsely that he had been persecuted. He was in fact Albanian. In May 1999, he was accepted as a refugee and granted ILR, which would not have happened had the Secretary of State known the true facts. In 2004, he applied for naturalisation using the same identity details, and was granted it on that same basis in November 2004. His deceit came to light in 2008 and he admitted it in September 2008, after being warned that the SSHD was considering depriving him of British nationality. He does not appear to have been told that this would not proceed. In 2011, he was sentenced to 5 years' imprisonment for causing grievous bodily harm. On 13 February 2013, the SSHD wrote to him saying that he was not and never had been a British citizen because the grant had been obtained by impersonation. The letter was in similar terms to the letter of 27 June 2013 to Bakijasi. On 8 April 2013, she served notice of intention to make a deportation order, and followed that up in November 2013 with a letter notifying him that she was considering cancelling his refugee status. But again it is not contended that the grant of ILR was a nullity or that the nullification of his nationality would prevent him reverting to that status.

12.

He has a wife in Albania who has been seeking entry clearance since 2008; their son was born in Albania in 2010. The SSHD contends that the son is an Albanian citizen. She says that as the father never applied for the registration of his son as a British citizen by descent, he is not a British citizen. He could not now become one in that way if the father's nationality is nullified. Hysaj says that no application for registration was necessary and that his son is a British national. I do not need to resolve that particular issue. However, both are agreed that, by contrast with Bakijasi, the nullification of Hysaj's nationality would nullify the child's British nationality as well – if he had it in the first place. Hysaj accepts this because the child had never lived in the UK, had not been issued with a British passport and there were no exceptional circumstances.

13.

Luan Kaziu: he was 16 when he arrived in the UK in 1998. He was recognised as a refugee who faced persecution in Kosovo as an ethnic Albanian, and was granted refugee status in 1998, and 4 years' limited leave to remain. He gave his true name and date of birth, but falsely claimed to be from Kosovo, when he was in fact an Albanian national. He also gave false family details, also claiming that he was born in Kosovo. He was granted ILR in 2003. There is a debate about whether he would have received four years' Exceptional Leave to Remain, ELR, in 1998 anyway as an unaccompanied minor who had no adequate reception facilities in his country of nationality; the SSHD's evidence was that he would have been granted 12 months ELR, becoming eligible for ILR after 6 years, and that he could not show that he would have had ILR but for his deception. In my view, he cannot show that he would have received any ELR had he been truthful about his nationality, since that would require consideration of reception facilities for him back in Albania. He cannot show that he would have received ILR at all had he been truthful.

14.

In March 2004 he applied for naturalisation and was naturalised in February 2005. His fraud came to light in 2007, when his wife applied for entry clearance. In May 2009, the SSHD notified him that she was considering depriving him of his nationality, to which he made representations in response in 2011 and 2012. He received no direct response. He eventually received a letter of 21 March 2013, in materially similar terms to those received by Bakijasi and Hysaj, telling him that his nationality was a nullity.

15.

His two children were born in Albania in 2010 and 2013. They are in the same position as Hysaj's child.”

The Secretary of State has power pursuant to section 1(2) and section 3(1)(b) of the Immigration Act 1971 (“the 1971 Act”) to grant ILR to a foreign national in the United Kingdom.

ILR may be terminated if the individual with ILR is deported pursuant to section 3(5) of the 1971 Act or if the Secretary of State makes a decision to revoke his ILR pursuant to section 76 of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”), including on the grounds that the ILR was obtained by deception (subsection (2)(a)).

As is common ground, ILR is a privileged immigration status, the holder of which is entitled, to the same extent as a British citizen, to reside in the United Kingdom indefinitely; take employment or become self-employed; study and obtain study-related grants and loans; have access to NHS care and social care; have access to housing assistance as a homeless person and to long-term housing allocation; and receive all means-tested and contributory social security benefits and pensions. In addition, the holder of ILR is free of any reporting or registration requirements; is entitled to come and go freely into and out of the United Kingdom (subject to a “returning resident” rule if absent for more than two years); and is entitled to have dependent family members from abroad join him, providing the usual conditions in the Immigration Rules (which apply equally to British citizens with foreign family members) are met. Further, where the holder of ILR status has a child born in the United Kingdom, the child automatically becomes a British citizen by virtue of section 1(1) of the 1981 Act, and where he has a child born in the United Kingdom prior to the grant of ILR that child is entitled under section 1(3) of the 1981 Act to be registered as a British citizen. The appellants and, as referred to above, their children have between them availed themselves of all these benefits and entitlements.

As is again common ground, a British citizen has certain entitlements which go further than this. In particular, a British citizen has the right to vote in United Kingdom and European elections, the right of free movement under EU law, the right to a British passport (which may confer benefits in terms of being able to travel to other countries with or without a visa) and the ability to seek certain forms of employment where eligibility is restricted. Further, by virtue of section 2(1) of the 1981 Act, the child of a British citizen who is born outside the United Kingdom automatically becomes a British citizen.

Section 20 of the 1948 Act provided for deprivation of citizenship in relation to a naturalised citizen. It is necessary to refer to it in order to understand the significance of the authorities relied upon by the Secretary of State in this case. In relevant part it provided as follows:

"(1)

A citizen of the United Kingdom and Colonies who is such by registration…or is a naturalised person shall cease to be a citizen… if he is deprived of that citizenship by an order of the Secretary of State made under this… section.

(2)

Subject to the provisions of this section, the Secretary of State may by order deprive any such citizen of his citizenship if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact."

…

(7)

If the order is proposed to be made on any of the grounds specified in subsections (2) and (3) of this section and that person applies in the prescribed manner for an inquiry, the Secretary of State shall … refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Secretary of State and of such other members appointed by the Secretary of State as he thinks proper.”

It was replaced by section 40 of the 1981 Act which, as originally enacted, provided in relevant part as follows:

"(3)

The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of-

fraud,

false representation, or

concealment of a material fact.

…

(7)

If the person against whom the order is proposed to be made applies in the prescribed manner for an inquiry, the Secretary of State shall … refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Secretary of State and of such other members appointed by the Secretary of State as he thinks proper.”

Citizenship status includes being a British citizen by naturalisation. It is common ground that an order to deprive a person of citizenship can only be made with prospective effect from the date of the order.

By the NIAA 2002, subsection (7) of section 40 was repealed and replaced with effect from 1 April 2003 by a new right of appeal in section 40A of the 1981 Act, which currently provides in subsection (1) as follows:

“A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to the First-tier Tribunal.”

Section 6(1) of the 1981 Act is the relevant operative provision which allows for the grant of British citizenship by naturalisation as follows:

“If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”

The equivalent provision in the 1948 Act was section 6(1) of that Act.

Schedule 1 to the 1981 Act was amended by the NIAA 2002 with effect from 1 November 2005. As amended, paragraph 1 of Schedule 1 provides as follows:

“(1)

Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it—

(a)

the requirements specified in sub-paragraph (2) of this paragraph, or the alternative requirement specified in sub-paragraph (3) of this paragraph; and

(b)

that he is of good character; and

(c)

that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and

(ca) that he has sufficient knowledge about life in the United Kingdom; and

(d)

that either—

(i)

his intentions are such that, in the event of a certificate of naturalisation as a British citizen being granted to him, his home or (if he has more than one) his principal home will be in the United Kingdom; or

(ii)

he intends, in the event of such a certificate being granted to him, to enter into, or continue in, Crown service under the government of the United Kingdom, or service under an international organisation of which the United Kingdom or Her Majesty's government therein is a member, or service in the employment of a company or association established in the United Kingdom.

(2)

The requirements referred to in sub-paragraph (1)(a) of this paragraph are—

(a)

that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450; and

(b)

that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and

(c)

that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and

(d)

that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.

(3)

The alternative requirement referred to in sub-paragraph (1)(a) of this paragraph is that on the date of the application he is serving outside the United Kingdom in Crown service under the government of the United Kingdom.”

Paragraph 1(2)(c) makes one of the requirements to be satisfied before a grant of British citizenship can be made a requirement that the applicant should have ILR.

The British Nationality (General) Regulations 2003 (SI No. 548/2003), which were in force between 2003 and 2007 when all the naturalisations of the appellants were granted, provided in Schedule 4 for the form of a certificate of naturalisation. The certificate had to state the full name of the applicant, his name at birth if different, his date of birth and the place and country of birth. Regulation 7 in the current version of the Regulations is not materially different save that the name at birth is not required as part of the information on the certificate.

The Secretary of State contends that there is an implied limitation upon her power to grant naturalisation under section 6(1) of the 1981 Act in certain cases where the applicant has fraudulently misled her as to his true identity. In support of that contention she particularly relies on authorities in this court regarding the operation of the 1948 Act which held that, notwithstanding the fact that section 20(2) provided for the Secretary of State to make an order with prospective effect depriving a person of citizenship on grounds of fraud in relation to the application, there was such an implied limitation upon the power of the Secretary of State to register a person as a naturalised British citizen which had the effect that if an individual fell within that limitation he did not become a British citizen at all, and there was no scope nor need for any order to be made to deprive him of citizenship which he never in fact enjoyed: R v Secretary of State for the Home Department, ex p. Sultan Mahmood [1981] 1 QB 58 (Note) and R v Secretary of State for the Home Department, ex p. Parvaz Akhtar [1981] 1 QB 46. The Secretary of State argues that these authorities on the 1948 Act are equally authoritative in relation to the true construction and operation of the 1981 Act. She also contends that these authorities reflect the general presumptions in statutory interpretation that legislation should serve the public interest (so that a literal construction which would seriously damage the public interest should be avoided) and that, unless the contrary intention appears, an enactment imports the principle of legal policy that no-one should be allowed to profit from his own wrong: see Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] 2 AC 304, in particular at [45] per Lord Mance JSC. The Secretary of State submits that each of the appellants falls within the implied limitation upon her power to grant British citizenship by naturalisation.

Ouseley J accepted the Secretary of State’s argument based on Sultan Mahmood and Parvaz Akhtar and held that none of the applicants had become a British citizen, despite apparently being registered as such by the Secretary of State. In each case, the apparent naturalisation was a nullity and of no legal effect. This was so even though the fraud involved in the application for naturalisation made by each appellant fell within the language of section 40(3) of the 1981 Act and even though it meant that there was no right of appeal under section 40A of the 1981 Act. The judge held that he was bound by authority to hold that there is a category of case where the grant of nationality is a nullity, even though obtained by fraud of a kind which falls within the language of section 40(3): see [41] and [71]-[70].

The judge reviewed other relevant decisions, including R v Secretary of State for the Home Department, ex p. Nahood Ejaz [1994] QB 496, Tohura Bibi v Entry Clearance Officer, Dhaka [2007] EWCA Civ 740 and R (Khadria and Krasniqui) v Secretary of State for the Home Department [2010] EWHC 2405 (Admin) (HHJ Allan Gore sitting as a Deputy High Court Judge) and [2011] EWCA Civ 696 (Sullivan LJ, refusing permission to appeal), with a view to identifying the ambit of the implied limitation on the Secretary of State’s powers to grant naturalisation.

Khadria and Krasniqi was a case similar to the present appeals, in which the two claimants, who were Albanian nationals, gave false names and dates of birth and falsely claimed to be nationals of Kosovo who faced persecution and hence qualified as refugees. Ouseley J regarded the test articulated by the deputy judge in that case as too broad and imprecise: see [44]. However, he found the formulation by Sullivan LJ helpful. He set this out at [38], as follows:

“Permission to appeal was refused at a hearing by Sullivan LJ, on a narrower basis than HHJ Gore's decision itself. He pointed to the "wholly false identities" assumed in name, age, adulthood or minority, nationality "and a vital characteristic, that is to say, as to whether they were refugees." This decision, [2011] EWCA Civ 696, carries no authority. But the point made by Sullivan LJ at paragraph 7 summarises the impersonation point well in language which I adopt, because it reflects my own thinking as to what impersonation in this context amounts to:

"The plain fact of the matter is that citizenship was not given to two adult Albanian citizens, Villion and Laurent Cakollari, who were born in 1978 and 1976 respectively; it was granted to Kosovan refugees who were called Villion Krasniqi and Rouland Kadria, who were minors born in 1981."

Ouseley J went on at [42]-[43] and [46]-[47] to identify the relevant category as follows:

“42.

I turn to consider the narrow category of cases to which nullification can apply. In my view, it comes down to what can be summed up in the word "impersonation", though that begs some questions. It obviously relates to the individuals who made the false representations about their own identity.

43.

What underlies the Court of Appeal decisions is the concept that X cannot obtain nationality by fraudulently claiming to be Y. The way Sullivan LJ expressed it in Kadria and Krasniqi above, captures the essence of the point. However, what that case did not have to deal with, and none of the other cases did either, is precisely what is it that makes the grant to X not the grant to Y. What aspects of the person have to be false to create a nullity, given that fraud and falsehoods in the application do not of themselves do so, since they are the very essence of deprivation proceedings? The Court of Appeal gave no guidelines, apart from saying that it was obvious when they were crossed, and they were crossed in Mahmood and Akhtar.

…

46.

The key characteristics of identity in this context, to my mind, are name, date of birth, and nationality, or country and place of birth, if the latter is used instead of the former. This reflects the information on the certificate, and the basis upon which the earlier cases were decided. These are necessary ingredients for the SSHD to check the identity of someone who seeks naturalisation. Mr Knafler's suggested distinction between falsely using the identity of a real person, dead or alive, and falsely using a fictitious identity, in which only the latter created a nullity of the naturalisation is not rational. It is not supported by authority, and has been rejected whenever raised.

47.

It is also clear that the grant has to have been obtained by fraud. So not uncommon innocent errors in the detail of date of birth, perhaps of name, or the innocent use of pseudonyms, misunderstandings as to nationality, or country and place of birth do not make a nullity of citizenship. The fraud must also have been material to the grant.”

At [48] the judge recorded that it was the agreed position of the Secretary of State and the appellants that the question of whether a purported grant of citizenship is a nullity is a question of fact to be determined by the court, rather than a matter for the reasonable judgment of the Secretary of State.

Turning to the facts of the three cases, the judge readily concluded at [49] that Mr Bakijasi’s naturalisation is a nullity, because the purported grant was to “Agron Adjini”, born in 1980, of Kosovan or Federal Republic of Yugoslavia nationality, and not to Agron Bakijasi, born in 1972, of Albanian nationality. The judge regarded the cases of Mr Hysaj and Mr Kaziu as more difficult, since in relation to the former, one, and in relation to the latter, two of the three crucial characteristics were correct, but he considered that the characteristics of identity were interlocking and that there had been material deceit in relation to them, so that their naturalisations were nullities as well: [50]-[51].

In reaching this conclusion, the judge noted at [55] a problematic area regarding the effects of a finding of nullification upon others, which had been avoided by pragmatic concessions made by the Secretary of State:

“There is a problematic area over the effect of the nullification of a person's nationality on those who have acquired nationality, whether knowing of the deceit or not, deriving from their relationship to that person. The parties' agreed position distinguishes the effect of nullification on the children of Bakijasi, by registration and by birth, and the effect on citizens by descent not requiring registration. There appears to be from Akhtar, Ejaz and Tohura Bibi a clear recognition that nullification should not be extended readily to nullifying derivative citizenship. But there is no clear and logical dividing line. The decisions more obviously seek a pragmatic limit to the logical effects of the nullification of citizenship on dependants. Such a pragmatic approach befits giving limited scope to nullification and a wide right of appeal in respect of deprivation. If nullification survives, as I hold it does, this case by case pragmatism leads to uncertainty in application of the concept and is unsatisfactory. Either nullification of one citizenship should nullify the citizenship of those whose citizenship had depended on its validity, or it should go no further than the impersonator's citizenship. Half-way pragmatism, which may or may not apply to a given case, simply illustrates the difficulty of the concept.”

In the context of these appeals, another concession by the Secretary of State is also significant, namely that even though the grants of citizenship are (as she contends) a nullity, each of the appellants continues to enjoy ILR until such time as she may make an order to deprive them of it. It is again common ground that any such order would only have prospective effect. The judge noted that this concession by the Secretary of State appeared to create an illogicality in the Secretary of State’s position, since she contends for an implied limitation upon her power to grant naturalisation where there is relevant fraud as to the identity of the applicant but does not contend that the same fraud should likewise be taken to render the grant of ILR a nullity: [69].

Finally, the judge dismissed the submission by Mr Knafler for the appellants that as each of them had been granted valid ILR, the certificates of naturalisation were granted to the people to whom ILR had been granted and who continued to enjoy it, and there was no relevant mistake by the Secretary of State as to the identity of the individuals to whom she had granted naturalisation, since she intended the individuals with that ILR status (whatever might be their true names and backgrounds) to be the recipients of the grant of British citizenship by her: [56]-[71]. He reached this conclusion by reason of what he found to be binding authority of this court, despite the apparent illogicality in the Secretary of State’s position in relation to the continuing validity of the grant of ILR to the appellants; the uncertainty in relation to the pragmatic approach to safeguard the interests of third parties referred to at [55]; and observations he made at [70], as follows:

“I am also troubled by the fact that the SSHD can inform an individual that deprivation proceedings are unlikely although he obtained his nationality by nullifying deceit, and then some years later, at a time of her choosing, and not subject to any time limits such as those which would apply if she had to seek judicial review, announce to him that he is not a British citizen, that the grant she has made and the certificate he holds are nullities, leaving him to take judicial review proceedings to challenge the asserted ineffectiveness of a seemingly valid document. All that had happened the while is made irrelevant to his position. Without the earlier decisions, I would have agreed with Mr Knafler and quashed the purported nullification.”

On this appeal Mr Knafler presents to us what are in substance the same submissions as he made to the judge below. He argues that this court is not bound by any of its previous decisions to reject the appeal; that we should find that section 40(3) of the 1981 Act provides a complete remedy in any case involving fraud in the process of applying for British citizenship, so that the interpretive presumptions referred to in Welwyn Hatfield BC should be taken to be overridden in the statutory scheme of the 1981 Act; that even if not excluded when the 1981 Act was first enacted, those presumptions should be taken to be overridden now by reason of the creation of a right of appeal by the insertion of section 40A by amendment of the 1981 Act in 2003, to be read alongside section 40(3); and that in any event in the context of the 1981 Act, with its reference in paragraph 1(2)(c) of Schedule 1 to immigration status amounting to ILR as a requirement (among others) for the grant of British citizenship under section 6(1), it is the individuals identified by reference to the immigration status enjoyed under the valid grants of ILR made to the appellants by the Secretary of State to whom she intended to grant British citizenship by naturalisation, so there has been no relevant mistake of identity for the purposes of any implied limitation in relation to the Secretary of State’s power under section 6(1) to grant British citizenship by naturalisation.

The implied limitation on the powers of the Secretary of State under the 1981 Act

In my judgment, the judge was right to regard himself as bound by the decisions of this court in Sultan Mahmood and Parvaz Akhtar. They were concerned with the proper interpretation of section 20 of the 1948 Act, but that provision appeared in a context and was in terms which were materially identical to those of section 40 of the 1981 Act, as originally enacted. I agree with the judge that it is not possible to distinguish these authorities. I also agree with him that the later amendment of the 1981 Act in 2003 to replace section 40(7) (right to require an inquiry) with section 40A (right of appeal) makes no difference to this analysis.

The claimant in Sultan Mahmood was a citizen of Pakistan who obtained entry to the United Kingdom in 1973 using a forged passport with his own photograph but in the name of Javed Iqbal. In 1974 the Secretary of State granted him citizenship by naturalisation by issuing a certificate of registration in the name of Javed Iqbal. The Secretary of State learned the true position in 1977, when a lady claiming to be the claimant’s wife wrote a letter exposing his fraud and revealing that Javed Iqbal had died in 1972. The Secretary of State made further investigations and proceeded to detain the claimant with a view to his removal as an illegal entrant. The claimant applied for a writ of habeas corpus, contending that his detention was unlawful as he was a naturalised British citizen by registration under section 5A of the 1948 Act and was entitled to be regarded as such unless and until an order was made under section 20 to deprive him of citizenship and his right to an inquiry under section 20(7) had been satisfied. The claimant argued that the Secretary of State’s case was to accuse him of fraud, false representation and the concealment of material facts, which were all matters falling squarely within section 20(2) of the 1948 Act in relation to which the Secretary of State had a power under that provision to make an order to deprive him of citizenship, but subject to the procedural protection contained in subsection (7). The claimant contended that it was only by exercise by the Secretary of State of the power of deprivation in section 20(2) that his citizenship could be removed.

The Divisional Court refused the claimant’s application, albeit without referring to his argument based on section 20, though it had been raised before that court: see [1981] 1 QB 58 at 60A-B. The judgment of the Divisional Court is not available, but it appears that part of the reasoning was based on the proposition that “a person who obtains some essential documents by fraud should not be allowed to enjoy a superior status on that account”: see the summary account of the reasoning of Lord Widgery CJ in the Divisional Court given by Stephenson LJ on appeal at p. 64D. It thus seems that the Divisional Court’s reasoning was based on something akin to the usual presumptions of statutory interpretation referred to in Welwyn Hatfield BC.

In this court, the claimant’s argument based on the alleged comprehensive and exclusive effect of section 20 was confronted directly and rejected. Roskill LJ said this at p. 61B-G:

“This argument has the merit of attractive simplicity and it was forcibly advanced by Mr. Turner-Samuels, in this court on behalf of the appellant. But before the provisions of section 20 (2), (6) and (7) can be prayed in aid, in my judgment the appellant must show that he can bring himself within subsection (1) of that section. He seeks to do so by reliance upon the fact of registration as evidenced by the certificate. If it were clear that the appellant was the Javed Iqbal originally named and identified in the Pakistani passport and in the other relevant documents and that the Secretary of State had intended to grant registration to that person, this argument would clearly have great force because it would be to that person so named and identified that that grant would have been directed. But the evidence is that that person was dead. The Secretary of State's intention cannot have been to grant registration to the appellant for he did not know who the appellant was. He wrongly believed the appellant to be Javed Iqbal, which he was not, nor could have been, for that individual was dead.

There are, I think, only three possible effects of the purported registration. First, it was a grant to Javed Iqbal. Secondly, it was a grant to the appellant. Thirdly, it was a grant to nobody but was a nullity. I have given my reasons already for rejecting the first two possibilities. There remains the third, that the purported grant was a nullity. Mr. Woolf drew an analogy between contracts which are void and contracts which are voidable. This analogy, as I think, is useful though, like most analogies, incomplete. I accept that in some cases it may be difficult to draw a dividing line in these cases between a registration which is a nullity and therefore void, as I think is the case with the present registration, in which case the alleged citizen by registration cannot bring himself within section 20 (1) at all, and a registration which is only voidable, in which case the machinery of section 20 (2), (6) and (7) has to be invoked to the exclusion of the relevant provisions of the Act of 1971. Mr. Woolf accepted that it was not easy to formulate a dividing line between the two classes of case. I agree, but wherever that line is drawn, I am clearly of the view that the instant case is one in which the alleged British registration was a nullity.”

Geoffrey Lane LJ likewise held that the registration of the claimant as a citizen in the name of Javed Iqbal was ineffective: p. 63A. Stephenson LJ acknowledged that there was force in the claimant’s argument based on section 20, but agreed with Roskill LJ and Geoffrey Lane LJ and held that the claimant never acquired citizenship: “On the assumed facts his fraud was so thorough-going as to take him over the dividing line referred to by Roskill LJ and to keep him outside the section altogether” (p. 64C). Stephenson LJ approved the reasoning of Lord Widgery CJ in the Divisional Court.

This decision clearly establishes that there was indeed an implied limitation in the 1948 Act upon the relevant power of the Secretary of State to grant citizenship by naturalisation, in cases of fraudulent impersonation (the ambit of which concept was not definitively spelled out in the case), and that section 20 did not implicitly remove such a limitation, notwithstanding the breadth of the language in section 20(2). There is no relevant distinction between the statutory scheme and language in section 20 of the 1948 Act and section 40 of the 1981 Act, as originally enacted. In my view, therefore, Sultan Mahmood is authority which in relation to this part of Mr Knafler’s argument was binding on the judge and binds this court.

This is also confirmed by Parvaz Akhtar, another decision of this court on the 1948 Act which is further binding authority to similar effect. This was another case of a claim for a writ of habeas corpus in respect of the immigration detention of the claimant, who had been born in Pakistan and then been naturalised as a citizen with the name Parvaz Akhtar, the infant son of Waris Ali. However, the Secretary of State discovered information which led him to believe that, in fact, the claimant was Abdul Hamid, the son of Noor Hussein, and an illegal entrant. Accordingly, the Secretary of State decided that he should be detained with a view to his removal.

The claimant again argued that the Secretary of State was obliged to proceed by means of making an order under section 20 to deprive him of his citizenship, since the fraud alleged against him fell within the type of conduct referred to in section 20(2). This argument was again rejected: see [1981] QB 46, 53F- 55B per Templeman LJ, with whom Sir Patrick Browne and Megaw LJ agreed. Templeman LJ gave examples of fraudulent deceptions which would fall within section 20(2) but would not render a grant of naturalisation a nullity. All three judges held that the case was covered by the decision in Sultan Mahmood, which was impossible to distinguish: pp. 55B-F, 56B and 57E-58A.

It is fair to say that the dominant strand in the reasoning in both Sultan Mahmood and Parvaz Akhtar was a focus on the particular identity used by the applicant for naturalisation and the inconsistency between that identity and his true identity. As Templeman LJ put it in Parvaz Akhtar at p. 53D-E:

“The registration was expressed to apply and could only apply to a person who was named or who called himself Parvaz Akhtar and was a son of Waris Ali. There was no power and no intention on the part of the registration authorities to register Abdul Hamid and no power or official intention to register any Parvaz Akhtar other than the son of Waris Ali. In order to rely on the registration the applicant must show that he answers to the description of Parvaz Akhtar, son of Waris Ali. He has not done this and has not shown that he is registered as a citizen of the United Kingdom and Colonies.”

However, as I have pointed out, there is also a strand in the reasoning in Sultan Mahmood which is aligned with the application of the usual presumptions in statutory interpretation reviewed by the Supreme Court in Welwyn Hatfield BC. In my view, it is the application of the presumptions analysed in that case which best explains the decisions in Sultan Mahmood and Parvaz Akhtar. On proper interpretation of the 1948 Act and, now, the 1981 Act, an applicant for naturalisation is not entitled to be naturalised if he engaged in fraud to impersonate another of such seriousness and of such centrality to the application being made as wholly to undermine the statutory process. As Stephenson LJ put it in Sultan Mahmood at p. 64C, the issue is whether the fraud was “so thorough-going” as to keep him outside the operation of section 20 (now section 40 of the 1981 Act) altogether.

The decision of the Divisional Court in R v Secretary of State for the Home Department, ex p. Puttick [1981] QB 767, reviewed in Welwyn Hatfield BC, shows that the interpretive presumption that a statute will not be given a construction which will enable a criminal to benefit from his crime, at least in serious cases, applied in relation to the 1948 Act; and clearly it must do so also in relation to the 1981 Act. The case concerned a woman, Astrid Proll, who had been a member of the Baader-Meinhof gang and who, after her arrest in Germany, went on the run and came to the United Kingdom using a false identity, as Frau Sauerbier. In order to obtain United Kingdom citizenship under the 1948 Act, she married Robin Puttick, a citizen of the United Kingdom, using her false identity for the purposes of the marriage. After the German authorities discovered her true identity, she applied to the Secretary of State using her true name to be naturalised as a United Kingdom citizen. Although her marriage was a valid marriage, so that according to the statute she appeared to have a right as a person married to a United Kingdom citizen to be registered as a citizen herself, the Secretary of State refused to register her as such. The court rejected her claim for judicial review, again dismissing an argument that section 20 created a self-contained and exhaustive code dealing with cases of fraud in acquiring citizenship by naturalisation: p. 773B-G per Donaldson LJ. The court held, by reference to R v Chief National Insurance Commissioner, ex p. Connor [1981] QB 758, that there was an implied limitation in the statute based upon principles of public policy accepted by the courts at the time when the 1948 Act was passed. At pp. 775F-776A Donaldson LJ said this:

“For my part, I think that when the British Nationality Act 1948 was enacted it was well established that public policy required the courts to refuse to assist a criminal to benefit from his crime at least in serious cases and that Parliament must be deemed to have been aware of this. Against this background, and bearing in mind additionally that citizenship is not only a matter of private right but also of public status and concern, in my judgment, Parliament can never have intended that a woman should be entitled to claim registration as a citizen of the United Kingdom and Colonies on the basis of a marriage achieved only by the commission of serious crime. In this case Mrs. Puttick's impersonation of Frau Sauerbier and the commission of the crime of perjury and forgery formed the foundation of her marriage to Robin Puttick and, in my judgment, disentitled her to rely upon the right which she would otherwise have had to claim registration as a citizen of the United Kingdom and Colonies.”

Forbes J’s judgment was to similar effect. The claimant had fraudulently misled the registrar who performed the marriage ceremony and persisted in her fraud when she forged a signature on the marriage certificate: “I … have no doubt that it was her fraud and forgery which directly obtained for her the entitlement she now seeks to enforce and that she cannot claim that entitlement without relying on her own criminality” (p. 777F).

Puttick and Connor were cited with approval by the Supreme Court in the Welwyn Hatfield BC decision: see, in particular, [47], [49] and [51] in the leading judgment of Lord Mance JSC and [71] per Lord Brown JSC. That case concerned the operation of the regime of planning control under the Town and Country Planning Act 1990. The regime made provision for enforcement action to be taken by a local planning authority in relation to unauthorised development of land, but the relevant provision, section 171B, provided for a relevant time limit of four years within which such action could be taken. The respondent, Mr Beesley, had engaged in unauthorised residential development of his land, which he had taken positive steps to conceal from the local planning authority so that the four year time limit for enforcement had expired by the time it discovered the true position. He sought a certificate of lawful development from the authority on the grounds that it now had no ability to commence enforcement proceedings against him under section 171B. In the relevant part of the decision, the Supreme Court held that the authority was not precluded by section 171B from taking enforcement action.

Lord Mance JSC said this:

“45.

The council relies upon a principle stated in Halsbury's Laws of England, 4th ed reissue, vol 44(1) (1995), paras 1450, 1453 in these terms:

“1450.

Law should serve the public interest. It is the basic principle of legal policy that law should serve the public interest … Where a literal construction would seriously damage the public interest, and no deserving person would be prejudiced by a strained construction to avoid this, the court will apply such a construction. In pursuance of the principle that law should serve the public interest, the courts have evolved the important technique known as construction in bonam partem (in good faith). If a statutory benefit is given only if a specified condition is satisfied, it is presumed that Parliament intended the benefit to operate only where the required act is performed in a lawful manner.”

“1453.

Illegality … Unless the contrary intention appears, an enactment by implication … imports the principle of legal policy embodied in the maxim nullus commodum capere potest de injuria sua propria (no one should be allowed to profit from his own wrong). The most obvious application of this principle against wrongful self-benefit relates to murder and other unlawful homicide.”

46.

Bennion on Statutory Interpretation, 5th ed (2008), section 264, also discusses the principle that law should serve the public interest. It comments that “all enactments are presumed to be for the public benefit” and that “[t]his means that the court must always assume that it is in the public interest to give effect to the intention of the legislator, once this is ascertained”; and, later, that “Construction in bonam partem is related to three specific legal principles. The first is that a person should not benefit from his own wrong”. The second principle precludes a person from succeeding if he has to prove an unlawful act to claim the statutory benefit, and the third is that “where a grant is in general terms there is always an implied provision that it shall not include anything which is unlawful or immoral”.

…

53.

Since the ultimate question is whether it can have been the intention of the legislator that a person conducting himself like Mr Beesley can invoke the benefits of sections 171B and 191(1), I do not consider that there can be any absolute principle that public policy can only bear on the legislator's intention in a context where there has been the commission of a crime. The principle described in the passages cited from Halsbury and Bennion is one of public policy. The principle is capable of extending more widely, subject to the caution that is always necessary in dealing with public policy. Some confirmation that the need for an actual crime is not absolute can also be found in another case, R v Registrar General, Ex p Smith [1991] 2 QB 393, where the Court of Appeal held it sufficient to disentitle a prisoner from exercising his on its face absolute right to inspect his birth certificate that there was a current and justified apprehension of a significant risk that he might in the future use the information thereby obtained to commit a serious crime.

54.

Whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision. Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale. Although the principle was not mentioned in counsel's submissions and my conclusions have been reached independently of it, it is not uninteresting also to recall the way in which, before the enactment of section 26 of the Limitation Act 1939 (the predecessor of section 32 of the Limitation Act 1980), the courts held that the apparently general wording of the limitation statutes could not be relied upon in cases where the cause of action had been fraudulently concealed or, later also, was itself based on fraud: Booth v Earl of Warrington (1714) 4 Bro PC 163, Gibbs v Guild (1882) 9 QBD 59, Bulli Coal Mining Co v Osborne [1899] AC 351 and Lynn v Bamber [1930] 2 KB 72.

…

56.

Here, Mr Beesley's conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process (applying for and obtaining planning permission) and was directly intended to and did undermine the regular operation of that process. Mr Beesley would be profiting directly from this deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language cannot in my opinion contemplate or extend to such a case.”

The first authority to which our attention was drawn which considers the effect of section 40 of the 1981 Act directly was R v Secretary of State for the Home Department, ex p. Naheed Ejaz [1994] QB 496. In that case the claimant had married in Pakistan and then came to the United Kingdom with her husband. Her husband had first come to the United Kingdom some years before, using a British passport in the name Arshad Iqbal. It was in that name that he married her and returned with her to the United Kingdom. They had three surviving children, all born in the United Kingdom. Later, the husband purported to change his name to Diwan Hashmat Kamal and obtained a British passport in that name. In 1987, the claimant applied for naturalisation as the wife of a British citizen. In 1990, the Secretary of State granted the claimant a certificate of naturalisation. The Secretary of State then discovered that the husband had practised a deception: he was in fact not a British citizen by the name of Arshad Iqbal, but was in truth a citizen of Pakistan named Diwan Hashmat Kamal, and had never been a British citizen. The court held, however, that this did not mean that the naturalisation of the claimant wife was ineffective. If the Secretary of State wished to treat the claimant as anything other than a British citizen, he would have to make an order under section 40 to deprive her of citizenship.

In Naheed Ejaz there was no argument regarding the scope of any implied limitation on the powers of the Secretary of State under the 1981 Act. Rather, the Secretary of State’s submission was that his power of naturalisation under section 6(2) of the Act (on the basis of marriage to a British citizen) was conditional on the existence of a precedent fact, namely that the spouse of the applicant was indeed a British citizen: p. 504C-D. This submission covered cases where the mistake regarding the supposed precedent fact was entirely innocent: see also p. 506F, where the court gives as part of the reasons for rejecting the Secretary of State’s submission that it would create great injustice in a case where an innocent mistake occurred. This is the reason why at p. 501D the court said that it was unnecessary to resolve a dispute regarding whether the claimant in the case was involved in any fraud or not. The Secretary of State’s precedent fact submission was rejected as being inconsistent with the scheme of the legislation and other provisions in it. The case is not authority which illuminates the ambit of the implied limitation upon the Secretary of State’s naturalisation powers identified in Sultan Mahmood and Parvaz Akhtar. Nor does it explore the significance in the context of the 1981 Act of the presumptions referred to in Welwyn Hatfield BC. Nonetheless, the discussion in the case did highlight certain difficulties which are also of relevance in the context of argument about the scope of the implied limitation at issue in this appeal.

The court emphasised that its interpretation of the 1981 Act was desirable, both to avoid injustice in the case of innocent mistakes and also in the interests of reducing the uncertainty which would otherwise arise where, “no matter how long after the registration or naturalisation”, a precedent fact is discovered to be incorrect and it is said that the effect is to be as if the registration or naturalisation had never been granted. As was pointed out, this would have

“the inevitable consequence of affecting the status of others, such as children. This is highly undesirable where questions of status are concerned. While the construction contended for by the applicant does not eliminate all uncertainty, since the status is defeasible under section 40, such a construction gives rise to much less uncertainty since the section does not operate retrospectively” (p. 506D-E, per Stuart-Smith LJ).

Similarly, it is the case that where the Sultan Mahmood implied limitation operates this means that a fraud might be discovered after many years which has the effect that what appeared to be a perfectly valid naturalisation of an individual as a British citizen was not in fact valid. It may be said that there is no injustice to the individual concerned in such a result if they have been fraudulent in obtaining that status. But third parties may be affected, such as a spouse who married them and then became naturalised as a British citizen themselves (as in Naheed Ejaz) or children who appeared automatically to become British citizens under sections 1 and 2 of the 1981 Act. In the judgment below, Ouseley J drew attention to such difficulties as well.

Difficulties of this kind were glossed over in the present proceedings by reason of various so-called “pragmatic” concessions made by the Secretary of State regarding the continuing status of certain of the appellants’ children as British citizens and the continuing validity of the ILR granted to the appellants themselves, despite the apparent illogicality of the Secretary of State contending that an implied limitation deriving from the interpretive presumptions referred to in Welwyn Hatfield BC is to be identified in relation to her powers to grant citizenship by naturalisation under the 1981 Act where there is fraudulent impersonation but not in relation to her powers to grant ILR under the 1971 Act. Mr Moffett for the Secretary of State was also disposed to accept that the decision in Naheed Ejaz would exclude reliance on the implied limitation in the case of a spouse becoming naturalised on the basis of marriage to a person who was apparently a British citizen (but who, because of fraudulent impersonation to obtain that status, in truth was not) even where the spouse was herself fraudulent in presenting that application. This would go some way to reducing the difficulties which could otherwise arise and was accepted as correct in an obiter dictum by Wilson LJ in Tohura Bibi v Entry Clearance Officer, Dhaka [2007] EWCA Civ 740, at [20], but I have some doubt whether this is necessarily correct, in view of the fact that, as I have explained, the ambit of the Sultan Mahmood implied limitation and the Welwyn Hatfield BC interpretive principles were not addressed in Naheed Ejaz.

Nonetheless, in Tohura Bibi this court accepted that where one is dealing, as the court was there, with the effect of fraudulent impersonation by the person who is said to be a naturalised British citizen, Sultan Mahmood and Parvaz Akhtar are binding authorities in relation to the existence of the implied limitation on the Secretary of State’s powers under the 1948 Act: [20] per Wilson LJ, with whose judgment the other members of the court agreed. Wilson LJ emphasised the difference between simple adoption of a pseudonym for convenience, which is not incompatible with the statutory scheme, and “advancement of a false identity”, which is: [15]. The naturalisation in issue in that case was found to have been achieved on the basis of advancement of a false identity, i.e. fraudulent impersonation, by the individual concerned and hence to be of no effect: [20]-[21].

There is no relevant distinction between the 1948 Act and the 1981 Act so far as this interpretation in Tohura Bibi of the Secretary of State’s powers is concerned. Where does this leave the law so far as material for present purposes? In my judgment, notwithstanding the sort of difficulties to which attention was drawn in Naheed Ejaz and in the judgment below, this court is bound by its decisions in Sultan Mahmood, Parvaz Akhtar and Tohura Bibi to hold that there is an implied limitation upon the powers of the Secretary of State to grant citizenship under the 1948 Act and under the equivalent provisions in the 1981 Act which are applicable in this case. The basis for the implied limitation is properly to be explained by the interpretive presumptions reviewed in Welwyn Hatfield BC. In my view, the principles of statutory interpretation reviewed in that decision ought also to be taken to provide guidance as to the ambit of the implied limitation. They require that in interpreting the 1981 Act the different public interests in issue have to be taken into account, that is to say both the usual public interest to ensure that a criminal fraudster should not benefit from his crime and the public interest regarding the desirability of innocent third parties having stable and certain citizenship status conferred upon them pursuant to the 1981 Act.

This is not a process of interpretation which is particularly easy to undertake. Apart from the question of authority, it may also be noted that, notwithstanding the difficulties which might arise in relation to the citizenship status of third parties, there is significant force in the argument based on the interpretive presumptions referred to in Welwyn Hatfield BC by reason of the gap in time that will exist between the grant of citizenship on the basis of a successful fraudulent application and the Secretary of State discovering the fraud, that being the earliest time at which she would be able to make a deprivation order under section 40(3) which would only have prospective effect. During the gap period the fraudster may have secured advantages for himself or his family which he ought never to have had which cannot be undone by the making of a prospective deprivation order under section 40(3), and it is not unreasonable to think that Parliament would not have intended him to be able to have those benefits as a result of his fraud. One area where this might be relevant is where the fraudster who has obtained British citizenship has in the gap period claimed welfare benefits available to British citizens, and it might be said that justice should require that he repay them; but I observe that this is an aspect of the case where the Secretary of State’s apparently illogical concession that there is no equivalent implied limitation upon her powers to grant ILR risks distorting the legal analysis, since as the welfare legislation currently stands an individual with ILR can claim the same welfare benefits as a British citizen.

I should also mention that a further topic not explored in argument before us is whether section 3 of the Human Rights Act 1998 might have any interpretive role to play in relation to the protection of the interests of innocent third parties, if their Convention rights would be violated by a finding that the application of the implied limitation upon the powers of the Secretary of State to grant citizenship under the 1981 Act in relation to someone through whom they claimed British citizenship themselves meant that their own citizenship status might be undermined.

For present purposes, it is not necessary to try to resolve all these difficulties. I agree with the judge that a narrow view should be taken of the extent of the implied limitation, so as to minimise them: see [39]. I also agree in general terms with the judge’s formulation of the extent of the implied limitation at [45]-[46], set out above.

I further agree with the judge that the appellants’ fraudulent impersonation of refugees fleeing from Kosovo, which lie they used to obtain ILR and implicitly continued to maintain when they applied for naturalisation as British citizens, was a deception by fraudulent impersonation so serious and in relation to matters so central to the proper operation of the Secretary of State’s powers to grant citizenship that in each case they fell within the ambit of the implied limitation: compare Welwyn Hatfield BC at [56], set out above. Indeed, Mr Knafler correctly accepts that on the facts in these three appeals there was fraudulent impersonation by each appellant falling within the scope of that notion as discussed in the authorities, such that the appeals should fail unless he can succeed in his argument that the implied fraudulent impersonation limitation does not exist in relation to the 1981 Act, which I have already rejected, or in his further arguments regarding the effect of the amendment of the 1981 Act to insert section 40A to create a right of appeal and the significance of each of the appellants holding valid ILR status, to which I now turn.

The effect of the amendment of the 1981 Act to insert section 40A

Mr Knafler contends that even if the 1981 Act as originally enacted was to be read as including the implied fraudulent impersonation limitation upon the Secretary of State’s power to grant citizenship, that changed in 2003 with the amendment of the Act by the insertion of section 40A to replace a right to request an inquiry in relation to a deprivation order under section 40 with a right of appeal as set out in section 40A.

I reject this argument. The change from a right of inquiry (backed up by a right to seek judicial review in the courts) to a right of appeal on the merits to what is now the First-tier Tribunal did not affect the basic scheme of the 1981 Act in any material way. Moreover, on a proper interpretation of the 1981 Act the implied fraudulent impersonation limitation operates in relation to the Secretary of State’s power to grant citizenship contained in section 6(1) of the Act, which has not been amended. It would require a very clear indication indeed from the way in which section 40 of the Act was amended and section 40A was added before it could be inferred that Parliament also intended impliedly to amend section 6, which it left untouched. There is no such indication. As Mr Moffett points out, generally an amendment does not affect the construction of the unamended parts of a statute as originally enacted: R (Brown) v Secretary of State for the Home Department [2015] UKSC 8; [2015] 1 WLR 1060, [24] (Lord Toulson JSC) and [33] (Lord Hughes JSC).

The significance of the ILR status of the appellants

Mr Knafler submits that the implied fraudulent impersonation limitation upon the Secretary of State’s power to grant citizenship, assuming it exists, does not have application in relation to the appellants’ cases. This is because when they applied to be naturalised as British citizens they did so by relying principally on their identity as persons with valid ILR status. Mr Knafler says that it was this that was the effective cause of their obtaining naturalisation, since it was the fact of having ILR which enabled them to satisfy the condition in paragraph 1(2)(c) of Schedule 1 to the 1981 Act when they applied for naturalisation. He contends that there was no mistake regarding the relevant identity of the appellants when they were granted British citizenship: they really were the people who held the ILR status on which they relied to support their applications (admittedly, in the case of Mr Bakijasi, in a name other than his true name).

I reject this argument as well. It involves a wholly unpersuasive focus on one narrow aspect of the case for naturalisation put forward by each appellant when he applied to the Secretary of State and ignores both the fraudulent impersonation by the appellants to acquire ILR in the first place and the continuation of that fraudulent pretence which they perpetrated in order to induce the Secretary of State to grant them citizenship.

As I have already explained, the implied limitation identified in Sultan Mahmood reflects the general presumptions in statutory interpretation reviewed in Welwyn Hatfield BC, including the presumption that Parliament does not intend a criminal fraudster to be able to benefit from his fraud. The implied limitation cannot sensibly be read as concerned only with a narrow focus on how to identify the person applying for naturalisation simply by reference to whether they have ILR as an identifiable individual.

The appellants were only in a position to seek naturalisation as British citizens because they had first obtained a necessary status through fraudulent impersonation of the requisite seriousness and materiality. They sought to benefit from that original fraud by taking the fruit of it (the grant of ILR) and relying on that in their applications to the Secretary of State for naturalisation. That is itself a relevant form of fraudulent impersonation for the purposes of the implied limitation upon the Secretary of State’s powers, as the Puttick case shows. In that case, it was the fraud of the claimant in obtaining the status of being married to a United Kingdom citizen which enabled her to apply to the Secretary of State for naturalisation and which was found to be the reason that she was not entitled to be registered as a citizen herself. This is not a surprising result: in both Puttick and the present cases there was and is a direct link between the fraudulent impersonation to obtain the status which was then relied upon to seek to obtain citizenship by naturalisation by the Secretary of State.

Further, in the present cases the causative relevance of the original fraudulent impersonation is underlined by the way in which the appellants necessarily had to, and did, maintain the fraudulent pretence that they were refugees from Kosovo through to the time when they applied for naturalisation as citizens. If, when they applied for naturalisation, they had then told the truth and revealed their earlier lies, the Secretary of State would have rejected their applications on the grounds that they could not show that they were of good character: see para. 1(1)(b) of Schedule 1 to the 1981 Act.

In my judgment, all three appellants fell within the scope of the implied fraudulent impersonation limitation upon the Secretary of State’s power in the 1981 Act to grant British citizenship, and the judge was right so to hold.

For the reasons given above, I consider all three appeals should be dismissed. I think this answer is clearly given by reference to authority binding on this court.

However, the interpretation of the 1981 Act given by those authorities is one which is problematic in various respects. I think this is an area in which it would be desirable for Parliament to clarify the law by express statutory provision.

I agree that these appeals should be dismissed for the reasons given by Sales LJ. I also agree with his observation in paragraph 64 above concerning the desirability of legislative intervention.

I also agree with the judgment of Sales LJ and I too would dismiss these appeals.