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(ii) Official Positionasad-khan

In light of the existing authorities, after reviewing her own position the Home Secretary arrived at the view that the law took a wrong turning after Mahmood, the type of case involving two real people, X and Y where X impersonates Y for the purpose of applying for citizenship. Y possesses the characteristics required for citizenship and is granted citizenship after consideration. However, Y has never applied for citizenship, may not want it, or may even be dead and thus it is not possible to say that citizenship has been granted either to Y or to X. Therefore, there was no grant of citizenship and Mahmood remains good law.

Comparatively, in subsequent case law, X (or someone on his behalf) creates a false identity and uses it and in that identity he acquires the characteristics needed to obtain citizenship and then applies for citizenship using the false identity Y. However, X satisfies the requirements for citizenship despite acquiring them by using the false identity Y. The decision-maker considers X’s application in identity Y and citizenship is granted in that identity. In this type of case, the Government’s view was that the grant of citizenship is valid, but that its recipient may later be deprived of it under s 40 of the 1981 Act.

Overall, Ejaz was rightly decided but Akhtar and Bibi were wrongly decided. Like the instant case, the Court of Appeal’s decisions in Akhtar and Bibi were founded on the principle that a category of identity fraud exists which is so serious that a purported grant of citizenship is of no effect. However, the Government accepted that a principled and clear definition of the types of fraud which will be so serious as to have this consequence has not been articulated by the courts. For instance, neither appellant pretended to be someone he was not. Hysaj used his real name but also used a false date of birth, nationality and place of birth to obtain ILR and gained citizenship on the basis of the ILR that he himself had obtained. Bakijasi used a false name in obtaining ILR but otherwise gained citizenship in the same way.

In light of the information on the naturalisation certificate, Ouseley J had found that the key characteristics of identity for this purpose were the name, date of birth, and nationality or the country and place of birth. However, he judged that there had to be fraud and innocent mistakes or misunderstandings were insufficient in that regard. The resultant uncertainty makes the law difficult to apply in practice. Numerous illogical and unsatisfactory consequences also arise and it is unclear when the use of a false identity to obtain citizenship by one person will result in the nullification of the grant of citizenship to persons making a derivative claim, whether as a spouse or child.

Overall, it is difficult to reconcile Akhtar, Ejaz and Bibi. Unsurprisingly, Ouseley J highlighted that either all derivative citizenship should be of no effect if the citizenship from which it is derived is of no effect, or the nullity should be confined to the person who obtained citizenship using the false identity. He also pointed out that the logic of the position then adopted by the Home Secretary would also nullify the grant of ILR, albeit she has never contended for this.

Therefore, agreeing with the Government’s reasoning, Lady Hale held that:

  1. It follows that the decisions of the Court of Appeal in Akhtar and Bibi must be overruled and that this appeal must be allowed by consent in terms of the detailed order proposed.

Comment

This judgment clarifies that the concept of nullity will only be suitable where a person applies for British citizenship impersonating another real person who possesses the qualities to acquire such citizenship. The outcome is clearly a boon to the large cohort of persons who created a false identity and used it to obtain citizenship. Grants in such cases will no longer be considered a nullity from the outset and access to a full merits appeal will be available under s 40A of the 1981 Act. Alternatively, in national security cases, a right of appeal on the lawfulness of the deprivation of citizenship will be available under the SIAC Act 1997, s 2B.

The protection provided to children and partners by the Government’s generosity is another telling feature of these proceedings. Indeed, the terms of the consent order record that both Hysaj and Bakijasi’s children are British citizens within the meaning of the 1981 Act and the harsh retrospective effect of a nullity has been averted in their cases. The Home Office will need to amend its guidance so as to reflect the emollient effects of this judgment.

However, despite the Home Office’s clear wish that these appeals should be allowed, some journalists think that this decision has created a “loophole” for criminals. Similarly, there is also outrage that the exorbitant costs (reportedly £1,000,000) of this litigation will be paid out of the public purse.

Please see Part One here.

This article was originally posted here.