Secretary of State for the Home Department v Xhevdet Daci

This appeal by the appellant Secretary of State for the Home Department raises an issue about whether the Secretary of State had exercised the discretion provided by section 40(3) of the British Nationality Act 1981 (BNA 1981), and had provided sufficient reasons for the exercise of that discretion, when deciding, by letter dated 2 August 2021, to deprive the respondent Mr Daci of his citizenship.

The First-tier Tribunal (Immigration and Asylum Chamber) (FTT) had, by a decision dated 25 April 2022, allowed an appeal by Mr Daci against the Secretary of State’s decision dated 2 August 2021 on the basis that it could not be said that Mr Daci had obtained his citizenship by means of his admitted fraud. The Upper Tribunal (Immigration and Asylum Chamber) (UT) set aside the decision of the FTT in a decision dated 21 August 2023. The UT then remade the decision on 5 March 2024, and allowed Mr Daci’s appeal against the decision dated 2 August 2021, on the basis that the Secretary of State had failed to exercise the statutory discretion set out in section 40(3) of the BNA 1981 properly because there had been no consideration of relevant factors.

This appeal was heard by the same constitution of the Court of Appeal who heard the appeals of Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16 (Chaudhry) and Kolicaj v Secretary of State for the Home Department [2025] EWCA Civ 10 (Kolicaj) in the weeks of 2 and 9 December 2024. Chaudhry was another appeal following a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981 and the parties in this appeal and in Chaudhry helpfully produced a joint bundle of authorities and co-ordinated submissions on matters of principle, which related to the test to be applied by the FTT when hearing an appeal from a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981. Kolicaj was an appeal following a decision of the Secretary of State made pursuant to section 40(2) of the BNA 1981.

The issue about the test to be applied by the FTT when hearing an appeal from a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981 involves consideration of the judgment of the Supreme Court in R(Begum) v Special Immigration Appeals Commission [2021] AC 765 (Begum (No.1)) and the judgments of Upper Tribunal (Immigration and Asylum Chamber) (UT) in Ciceri (deprivation of citizenship appeals: principles) v Secretary of State for the Home Department [2021] UKUT 238 (IAC); [2021] Imm AR 1909 (Ciceri) and Chimi v Secretary of State for the Home Department (deprivation appeals; scope and evidence) [2023] UKUT 115 (IAC); [2023] Imm AR 1071 (Chimi).

In Chaudhry it was decided, for the reasons set out in that judgment, that the proper approach to appeals under section 40A of the BNA 1981 from decisions of the Secretary of State made pursuant to section 40(3) of the BNA 1981 is: (i) it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981; (ii) the decision of the Secretary of State on the causation issue whether the registration or naturalisation was obtained by the impermissible means is to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); (iii) the exercise of the Secretary of State’s discretion to make an order depriving a person of citizenship status is to be reviewed on appeal by the FTT on public law grounds in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); and (iv) it is for the FTT to consider whether the Secretary of State had acted in breach of other relevant legal obligations, including those arising under section 6 of the Human Rights Act 1998, although due weight would need to be given to the findings, evaluations and policies of the Secretary of State.

In this appeal it was common ground before the FTT, the UT, and this court that, as a matter of fact, Mr Daci had committed fraud when applying for citizenship because he had used a false name, date of birth and nationality.

Mr Daci was born on 13 March 1981, and he is a citizen of Albania. Mr Daci entered the UK on 25 July 1998 and claimed asylum on 28 July 1998. At that time Mr Daci was aged 17 years and 4 months. Mr Daci gave a false name “Xhevdet Dani” and claimed to be a national of Kosovo. He also gave a false date of birth as 20 December 1981. Mr Daci gave a false account of his life, claiming that he had been persecuted and abused by Serbian police who had also threatened to kill him. He said that his father (who was then still alive in Albania) had died of a heart attack as a result of a police raid.

Mr Daci became 18 years old on 13 March 1999. On 24 May 1999 Mr Daci was granted indefinite leave to remain as a refugee. On 10 December 1999, Mr Daci applied for, and was in due course granted, a Home Office Travel Document in the false identity of Dani, having claimed that he could not approach his own authorities because he was a refugee.

On 11 May 2004 Mr Daci applied to naturalise as a British citizen in the false identity of Dani. Mr Daci gave false information that he was a national of Kosovo, and that his date of birth was 20 December 1981. Mr Daci was asked on the form if he had ever engaged in any other activities which might indicate that he was not a person of good character, and he ticked the “No” box. Mr Daci signed a declaration confirming that the information he had given was correct. There was a warning on the form that giving false information, knowingly or recklessly, was a criminal offence.

The Secretary of State’s good character guidance, applicable at the time in Annex D to Chapter 18 of the Nationality Instructions, stated that an applicant would not be considered to be of good character if they had practised deceit in their dealings with the Home Office.

On 23 June 2004 Mr Daci became a British citizen, albeit in the false name of Mr Dani. In May 2020, it came to the Home Office’s attention that Mr Daci might have naturalised in a false identity. Further checks were conducted, which revealed his identity as Mr Daci.

On 24 May 2021, Mr Daci was informed that consideration was being given to depriving him of his British citizenship. Mr Daci made representations to the effect that he should not be deprived of citizenship by letter dated 14 June 2021. By letter dated 2 August 2021, having considered those representations, the Secretary of State decided to deprive Mr Daci of his citizenship.

As the grounds on which the UT allowed the appeal when remaking the decision were based on the approach to discretion set out in the letter dated 2 August 2021, it is necessary to set out material parts of the letter. The letter started by recording that Mr Daci had been issued with a certificate of naturalisation as a British citizen on 23 June 2004, referring to the investigations carried out by UK Visas and Immigration. It was stated that following the investigation and on the basis of evidence presented the Secretary of State “has decided that your British citizenship was obtained fraudulently. The Secretary of State has decided that you should therefore be deprived of British citizenship for the reasons outlined below”.

The letter went on to outline the facts, and record that the information was put to Mr Daci in a letter dated 24 May 2021 and that Mr Daci had responded through representatives on 14 June 2021. That letter was analysed as making representations to the effect that: Mr Daci was a minor when entering the UK and could not be regarded as complicit in the deception; he had attained 14 years of residence in the UK by 2012 and so had deprivation action taken place promptly he would have benefited from the 14 year policy; referred to the impact of the nullity legislation and the delay caused to deprivation decisions which had caused Mr Daci to suffer; and raised a claim under article 8 of the European Convention of Human Rights (ECHR), given domestic effect by the Human Rights Act 1998.

The Secretary of State referred to the point raised in mitigation to the effect that he was a minor when entering the UK. Reference was made to Chapter 55 of the Nationality Instructions, which I will refer to as “the relevant policy”. The Secretary of State accepted that Mr Daci was a minor when he came to the UK and made his false asylum claim, but pointed out that he had been an adult for over two months before he acquired indefinite leave to remain, and had also had opportunity to set the record straight. The Secretary of State dealt with Mr Daci’s claim that an interpreter advised him to give false details and noted the absence of details of the interpreter and evidence. The Secretary of State considered it unlikely that a professional interpreter would have advised Mr Daci to make false claims as he had asserted in his representations, but considered that he could in any case have turned to others for support, and had not in any event attempted to set the record straight in the intervening 23 years.

The Secretary of State rejected the characterisation of Mr Daci’s fraud as a one off event in paragraph 28 of the letter. The letter addressed arguments in relation to delay, and the Secretary of State pointed out that while it was likely that Mr Daci’s wife had provided his genuine details in 2006 when making an entry clearance application, no reference was made regarding his case at that time, and so SSHD had not appreciated his fraud. The Secretary of State denied that there had been any delay in dealing with his claim, since the information that there might have been fraud had not come to the Secretary of State’s attention until 2020. The Secretary of State explained why Mr Daci would not have benefited from an earlier, purely historic policy in relation to deprivation. The Secretary of State distinguished the decision of the Court of Appeal in Laci v Secretary of State for the Home Department [2021] EWCA Civ 769; [2021] 4 WLR 86 to which reference had been made by Mr Daci’s representatives and rejected the suggestion that Mr Daci should not be deprived of his citizenship because of the length of time which had passed since his fraudulent acquisition of citizenship in paragraphs 33 and 34 of the letter. The Secretary of State rejected Mr Daci’s reliance on article 8 of the ECHR claim as mitigation.

The letter went on to set out that the fraud was considered to be material to the grant of citizenship, because had the Secretary of State been told the truth the application would have been refused on good character grounds. At paragraph 41 of the letter the Secretary of State stated “in summary you entered the UK and claimed asylum in a false identify … you maintained this fraud for over 20 years and have only admitted the truth after it was put to you. Although the initial fraud arose when you were a minor, you were an adult before you acquired your grant of ILR as a refugee and so were complicit in the fraud. You maintained the fraud when naturalising …”.

In paragraph 43 of the letter the Secretary of State says that “it is acknowledged that the decision to deprive on the grounds of fraud is at the Secretary of State’s discretion. In making the decision to deprive you of citizenship, the Secretary of State has taken into account the following factors, which include the representations made by your legal representatives in their letter dated 14 June 2021 and concluded that deprivation would be both reasonable and proportionate”. The letter then addressed matters under headings of: “Article 8 ECHR”; “Section 55”; and “Statelessness”; before turning to rights of appeal. In the paragraph dealing with section 55 of the Borders, Citizenship and Immigration Act 2009 there was reference to the best interests of the children and the fact that deprivation would not affect the status of his children or that of his wife.

In its decision dated 5 March 2024 the UT recorded that it had been agreed that the UT should follow the guidance set out in Chimi. The UT found that the statutory conditions precedent to the exercise of the decision to deprive had been satisfied. The UT recorded that while a number of factors had been set out by the Secretary of State in the letter dated 2 August 2021, those fed into the question of whether there had been deception and whether this had been linked to the grant of citizenship.

The UT referred to paragraph 43 of the decision letter and stated that although it addressed the existence of discretion, the “fatal” problem identified by the UT was that there was no consideration of “a variety of relevant factors which I am satisfied were put before the [Secretary of State] at the time” [23]. The UT found that there had been “ no substantive assessment of any particular factors at that stage”.

The UT also found that it could not be said that if the discretion had been lawfully considered, having regard to the variety of factors before the decision-maker, the outcome would inevitably have been negative to Mr Daci.

There were grounds of appeal and amended grounds of appeal on behalf of the Secretary of State and a respondent’s notice and an amended respondent’s notice on behalf of Mr Daci. The parties were able to address all of the issues in the amended grounds and amended respondent’s notice, and I would grant leave to Mr Daci to rely on the amended respondent’s notice. The issues were further refined in the course of oral submissions.

Ms Julia Smyth and Ms Harriet Wakeman on behalf of the Secretary of State submitted that the UT erred in law in finding that the Secretary of State had failed to take into account relevant considerations when exercising the statutory discretion, and that the Secretary of State had failed to give reasons for the exercise of the discretion. It was submitted that on any fair reading of the letter it was apparent that the Secretary of State had addressed all the discretionary factors relied on by Mr Daci’s representatives, and that the interpretation of paragraph 43 of the letter dated 2 August 2021 to mean that the Secretary of State had only considered factors after that paragraph was not reasonable.

As far as the amended respondent’s notice was concerned it was accepted that as the UT had allowed Mr Daci’s appeal because of the alleged failure to exercise the statutory discretion, the UT had not considered Mr Daci’s claims under article 8 of the ECHR, and that issue had to be determined before Mr Daci’s appeal against the decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981 could be finally dismissed, and so that issue should be remitted. As to the complaints about the approach of the FTT and UT to the appeal on the issues of fact, it had been common ground that there had been a fraud, and the Secretary of State’s decision that that had caused the grant of citizenship was clearly right and proper account had been taken of the relevant policy in the letter dated 2 August 2021.

Ms Sonali Naik KC and Ms Ripon Akhter submitted that the UT had been right to allow the appeal because, properly analysed, the Secretary of State had failed to exercise the statutory discretion provided for by section 40(3) of the BNA 1981. The letter dated 2 August 2021 had made it clear that the Secretary of State was aware of the discretion, but paragraph 43 and the following paragraphs of the letter made it clear that the Secretary of State had not exercised the discretion or had not provided any reasons for exercising the discretion.

As far as the issues raised by the amended respondent’s notice were concerned, it was submitted that the UT should have allowed Mr Daci’s appeal because the Secretary of State’s decision was unlawful and not proportionate. This was particularly so because Mr Daci was a minor when he entered the UK and under the relevant policy his fraud should not have been counted against him. In any event the UT had not yet considered Mr Daci’s article 8 ECHR claims.

I am very grateful to Ms Smyth and Ms Wakeman and Ms Naik and Ms Akther, and their respective legal teams, for their helpful written and oral submissions. It was apparent by the conclusion of the submissions that the following matters were in issue: (1) whether the UT was wrong to find that the Secretary of State’s decision dated 2 August 2021 had been unlawful because the Secretary of State had failed to exercise and give sufficient reasons for the existence of the discretion provided by section 40(3) of the BNA 1981; (2) whether the Secretary of State’s decision was otherwise unlawful and disproportionate, and in particular by reason of the misapplication of the relevant policy; and (3) whether, if the Secretary of State’s appeal was allowed, Mr Daci’s article 8 ECHR claim should be remitted to the FTT or UT.

Section 40 of the BNA 1981, so far as is material, provides:

“Deprivation of citizenship

(1)

In this section a reference to a person's “citizenship status” is a reference to his status as—

(a)

a British citizen,

…

(2)

The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.

(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—

(a)

fraud,

(b)

false representation, or

(c)

concealment of a material fact.

(4)

The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

(a)

the citizenship status results from the person's naturalisation,

(b)

the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and

(c)

the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

(5)

Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a)

that the Secretary of State has decided to make an order,

(b)

the reasons for the order, and

(c)

the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.”

The right of appeal from a decision to deprive a person of British citizenship is provided for by section 40A of the BNA 1981. That provides:

“Deprivation of citizenship: appeal

(1)

A person—

(a)

who is given notice under section 40(5) of a decision to make an order in respect of the person under section 40, or

(b)

in respect of whom an order under section 40 is made without the person having been given notice under section 40(5) of the decision to make the order,

may appeal against the decision to the First-tier Tribunal.”

Paragraph 55.7.5 provides:

“55.7.5

In general the Secretary of State will not deprive of British citizenship in the following circumstances:

…

If a person was a minor on the date at which they applied for citizenship we will not deprive of citizenship

If a person was a minor on the date at which they acquired indefinite leave to remain and the false representation, concealment of material fact or fraud arose at that stage and the leave to remain led to the subsequent acquisition of citizenship we will not deprive of citizenship

However, where it is in the public interest to deprive despite the presence of these factors they will not prevent deprivation.”

Paragraph 55.7.8 is headed “Complicit” and, so far as is material provides:

“55.7.8.1 If the person was a child at the time the fraud, false representation or concealment of material fact was perpetrated, the caseworker should assume that they were not complicit in any deception by their parent or guardian.

55.7.8.2 This includes individuals who were granted discretionary leave until their 18th birthday having entered the UK as a sole minor who can not be returned because of a lack of reception arrangements. Such a minor may be granted ILR after they reach the age of 18 without need to succeed under the Refugee Convention or make a further application but the fraud was perpetrated when the individual was a minor.

55.7.8.3 However, where a minor on reaching the age of 18 does not acquire ILR or other leave automatically and submits an application for asylum or other form of leave which maintains a fraud, false representation or concealment of material fact which they adopted whilst a minor, they should be treated as complicit.

…

55.7.8.5 All adults should be held legally responsible for their own citizenship applications, even where this is part of a family application. Complicity should therefore be assumed unless sufficient evidence in mitigation is provided by the individual in question as part of the investigations process.”

Paragraph 55.7.10 made it clear that a decision about deprivation required a balanced decision and paragraph 55.7.11.2 emphasised that all adults were expected to take responsibility for their decisions.

In my judgment it is apparent from a fair reading of the letter dated 2 August 2021 that the Secretary of State knew of the existence of the statutory discretion, exercised that discretion against Mr Daci, and gave sufficient reasons for exercising the discretion against Mr Daci. This appears from a reading of the letter and the fact that the letter referred to the letter sent on behalf of Mr Daci on 14 June 2021 which was analysed to make representations against deprivation under four headings.

The Secretary of State had referred to the relevant policy and considered whether Mr Daci had continued the fraud or was complicit in the fraud (using the wording of the relevant policy) as an adult. All of these matters were relevant to the exercise of the Secretary of State’s discretion. The letter dealt with issues of delay and whether this should lead to a different decision. Again this was relevant to the exercise of the Secretary of State’s discretion. The Secretary of State expressly addressed human rights issues as relevant to mitigation, which must have meant the exercise of discretion.

It is right to record that in paragraph 43 of the letter the Secretary of State “acknowledged that the decision to deprive on the grounds of fraud is at the Secretary of State’s discretion” and then referred to “the following factors” before addressing matters under the headings: “Article 8 ECHR”; “Section 55”; and “Statelessness”; which are not matters directly relevant to the exercise of the statutory discretion. However in paragraph 43 express reference had been made to “the representations made by your legal representatives in their letter dated 14 June 2021” before concluding that deprivation would be both reasonable and proportionate. That reference to the letter dated 14 June 2021 was a reference to those matters analysed and considered by the Secretary of State under the four headings earlier in the letter.

For these reasons it is apparent that there was a considered exercise of the statutory discretion by the Secretary of State, and sufficient reasons were given for the exercise of the discretion. In my judgment the UT was wrong to conclude that the Secretary of State had not exercised the statutory discretion or given sufficient reasons for the exercise of that discretion.

There was no dispute about the principles of interpretation to be applied to the relevant policy. So far as is material to this appeal these principles included the propositions that the issue of construction of the relevant policy was for the Court, the words in the policy had to be interpreted in the light of the purposes of the policy, and the policy was to be read as a policy and not as a statute.

The provisions of the relevant policy are set out in paragraphs 30 to 32 above. It is apparent from the factual background summarised in paragraphs 7 to 12 that Mr Daci was over 18 years old when he obtained indefinite leave to remain, having become 18 years old on 13 March 1999 and having been granted leave to remain on 24 May 1999. Under the wording of the relevant policy at paragraph 55.7.8.3 Mr Daci was to be treated as complicit because he had attained the age of 18, did not acquire ILR or other leave automatically, and on 10 December 1999 Mr Daci applied for a Home Office Travel Document in the false identity of Dani, and on 11 May 2004 Mr Daci applied to naturalise as a British citizen in the false identity of Dani.

In any event, as an adult, Mr Daci was asked on the form if he had ever engaged in any other activities which might indicate that he was not a person of good character, and he ticked the “No” box. Mr Daci signed a declaration confirming that the information he had given was correct. Mr Daci was not of good character because he had, in the words of Secretary of State’s good character guidance, practised deceit in his dealings with the Home Office by lying about his name, date of birth and nationality.

The delay in the Secretary of State finding out about the fraud did not make the decision disproportionate. This is because Mr Daci had continued the deceit as an adult and the Secretary of State had acted promptly when the fraud became known to the Secretary of State.

In my judgment the Secretary of State’s decision was consistent with the relevant policy, and was not otherwise unlawful or disproportionate at common law.

It was common ground that deprivation of citizenship, as contrasted with deportation, had a more limited impact on human rights for the reasons given in Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884; [2019] 1 WLR 266 at paragraph 26 and Laci at paragraph 25. That said Mr Daci contended that the Secretary of State’s decision to deprive him of citizenship was unlawful pursuant to section 6 of the Human Rights Act because it infringed his rights protected under article 8 of the ECHR. It was common ground that this issue needed to be determined if the Secretary of State’s appeal against the decision of the UT was allowed.

In my judgment it would be appropriate to allow the Secretary of State’s appeal against the decision of the UT, and remit Mr Daci’s appeal against the decision of the Secretary of State to the UT to determine the issue of the compatibility of the decision with Mr Daci’s rights protected by article 8 of the ECHR and the lawfulness of the decision pursuant to the Human Rights Act. This is in circumstances where the decision was remade by the UT and it is only the article 8 ECHR issue which remains to be determined.

For the detailed reasons set out above: (1) there was a considered exercise of the statutory discretion by the Secretary of State, and the UT was wrong to conclude that the Secretary of State had not exercised the statutory discretion or given sufficient reasons for the exercise of that discretion; (2) the Secretary of State’s decision was consistent with the relevant policy, and was not otherwise unlawful or disproportionate at common law; and (3) the Secretary of State’s appeal against the decision of the UT should be allowed, and Mr Daci’s appeal against the decision of the Secretary of State should be remitted to the UT to determine the issue of the compatibility of the decision with Mr Daci’s rights protected by article 8 of the ECHR and the lawfulness of the decision pursuant to the Human Rights Act.

I agree with both judgments.

I agree that the Upper Tribunal was wrong to hold that the Secretary of State had not exercised her discretion under section 40(3) of the 1981 Act, for the reasons given by Dingemans LJ at paras. 33-35 above. I also agree that the issue of whether the deprivation of citizenship would be contrary to Mr Daci’s article 8 rights must be remitted to it. As Dingemans LJ observes, the interference within article 8 rights in cases of this kind may be quite limited, but nevertheless the issue is not one which we are fairly in a position to deal with ourselves.