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Law corrected on British citizenship and identity fraudasad-khan

Extraordinarily, the Home Office sought to have these appeals allowed by consent despite the fact that Dinjan Hysaj and Agron Bakijasi had fraudulently deceived the authorities in obtaining ILR. The conflict in the former Yugoslav republic of Kosovo created more than 850,000 refugees and tens of thousands of people arrived in the UK claiming that they had been the victims of persecution. In reality, many of them were Albanian nationals who had lied about their true identity. No concrete action was taken against Hysaj when his lies first came to light. But after being sentenced to five years’ imprisonment for causing GBH, he was informed that he was not and never had been a British citizen because the grant had been obtained by impersonation. Bakijasi’s fraud surfaced when his partner returned to Albania in order to regularise her immigration status. The question for the Supreme Court was whether the misrepresentations made by the appellants in their applications for British citizenship made the grant of that citizenship a nullity, rather than rendering them liable to be deprived of that citizenship under the British Nationality Act 1981, ss 40 and 40A. Bound by existing authority, the Court of Appeal had no choice but to uphold Ouseley J’s first instance judgment that the appellants had not in fact become British citizens when issued with certificates by the Home Office purporting to register them as having citizenship by naturalisation.

Nevertheless, Sales LJ found the binding authorities to be “problematic in various respects”. The present judgment therefore allowed the Supreme Court to hold that the decisions of the Court of Appeal in Parvaz Akhtar [1981] QB 46 and Bibi v ECO (Dhaka) [2007] EWCA Civ 740 were wrongly decided. Hysaj was born in Albania in 1977 and arrived in the UK and claimed asylum in July 1998. He falsely claimed to be a citizen of the former Yugoslavia from Kosovo, where he said he had been persecuted. He used his real name but lied by understating his age so as to be considered a child when he claimed asylum. He was granted refugee status and obtained ILR in 1999. He applied for naturalisation as a British citizen in 2004 and was granted British citizenship in his own name but with false details regarding his date of birth, nationality and place of birth. Bakijasi entered the UK in 1999 and also falsely claimed to be a citizen of the former Yugoslavia from Kosovo and gave a false name and a false date of birth in his asylum claim, which was refused. But he was granted ILR under the Family ILR exercise in 2005. He was subsequently granted British citizenship under a fabricated name, date of birth, and place of birth.

Upon discovering the frauds, in light of binding Court of Appeal authority, the Home Office decided that in each case the grant of citizenship was a nullity and that Hysaj and Bakijasi were not, and never had been, British citizens albeit ILR had been validly granted to them. A person may acquire British citizenship by naturalisation under s 6(1) of the 1981 Act. However, in circumstances where citizenship obtained by registration or naturalisation involves “fraud, false representation or concealment of a material fact”, it is possible for the Home Secretary to deprive a person of citizenship pursuant to s 40 of the 1981 Act. Moreover, under s 40A, most deprivation decisions carry a right of appeal to the First-tier Tribunal.

The Supreme Court

Lady Hale and Lords Kerr, Wilson, Hughes and Hodge unanimously allowed the appeals by consent. The justices agreed with the Government’s reasoning and held that misrepresentations in an application for UK citizenship render the applicant liable to be deprived of that citizenship pursuant to s 40 of the 1981 Act. Notably, despite the existence of four judgments in the Court of Appeal, no House of Lords or Supreme Court authority existed on the issues relevant to this appeal. During the course of her judgment, for simplicity’s sake, Lady Hale used “X” to refer to the applicant for citizenship and “Y” to refer to the identity in which he applied for citizenship.

(i) Earlier Authorities

In Sultan Mahmood [1981] QB 58, so as to obtain registration as a British citizen under the British Nationality Act 1948, s 5A, X impersonated a real person his dead brother-in-law and cousin Y. Holding that X had never become a British citizen, Roskill LJ discerned three possibilities as a consequence of the purported grant (i) it might have been a grant to Y but it could not have been, because Y was dead, (ii) it might have been a grant to X but it could not have been, because the Home Office had no knowledge of X, believing him to be Y, and (iii) it might have been of no effect at all and it could only be a nullity.

In Parvaz Akhtar, X’s purported father Z registered him in the name of Y under s 7(1) of the 1948 Act which provided for the registration of a minor child of a British citizen. Mahmood led the Court of Appeal to hold that the Home Secretary had no power or intention to register X or any Y other than an actual son of Z. Therefore, X had never become a UK citizen.

In Ejaz [1994] QB 496, X applied for citizenship in her real name under s 6(2) of the 1981 Act – which provides for the naturalisation of a person who is married to a British citizen – but it transpired that X’s husband had been granted a British passport in a false identity and he was hence not, and never had been, a British citizen. However, the Court of Appeal declined to hold that the grant of citizenship was a nullity. Key in the ruling was the point that the uncertainty and injustice which could be caused by holding that a person had never been a citizen, with potential effects upon third parties such as children, was very undesirable in matters of status. Alternatively, no such retrospective effect was triggered by deprivation of citizenship.

In Bibi, X had obtained entry to the UK by assuming the identity of Y, another real person who had been granted an employment voucher to enable him to enter. After completing five years’ residence in the UK, X was registered as a British citizen in the name of Y. The appellants were the wife and four children of X and claimed a right of abode in the UK based on the purported citizenship of X. Wilson LJ (as he then was) applied Mahmood and Akhtar to hold that because X had applied for citizenship in a false identity there never was a grant of citizenship to him. Sir Mark Potter and Sedley LJ concurred.

Notably, these authorities show a gradual expansion of the nullity approach since Mahmood. The principles can be summarised in the following way. Mahmood established that if X adopts the identity of Y, another real person, and Y has the characteristics required to obtain citizenship, the purported grant of citizenship to X in the identity of Y is a nullity. Akhtar decided that if X adopts the identity of Y, where Y is not a real person but a false identity created by X (or someone else for him) having the characteristics required to obtain citizenship, the purported grant of citizenship to X as Y is a nullity. Bibi decided that if X adopts the identity of Y, another real person, and X acquires the characteristics needed to obtain citizenship by using the identity of Y, the purported grant of citizenship to X as Y is a nullity.

Significantly, in the present cases Kitchin, Floyd and Sales LJJ went a stage further than Bibi and decided that if X adopts the identity of Y, where Y is a false identity created by X and X acquires the characteristics needed to obtain citizenship by using the identity Y, the purported grant of citizenship to X as Y is a nullity.

Please see Part Two here.

This article was originally posted here.