Deprivation of Nationality

One can be deprived of their British citizenship and the power to do so is contained within section 40 of the British Nationality Act 1981.  The basis on which one can be deprived of their nationality is if the Secretary of State is satisfied that it is conducive to the public good, or because the naturalisation was obtained by means of fraud, false representations or concealment of material facts.  

What are the non-conducive grounds?

Section 40(2) deals with deprivation on the grounds that it is conducive to the public good and this is broadly confined to cases involving terrorism, (allegations and links) and such cases are dealt with SIAC.

How is naturalisation obtained by fraud or false representation or concealment of material facts?

These types of deprivation are common.  In some cases it involves an applicant who assumes a false identity, such as name, date of birth or nationality when claiming asylum and then subsequently maintains this false identity and details in later applications to the Home Office, including the application for naturalisation as a British citizen.  We are particularly experienced in assisting ethnic Albanians, purporting to be Kosovans. 

In principle applicants facing deprivation of citizenship can come from any country, however, the majority who are facing deprivation of citizenship nowadays are Albanians who presented themselves as Kosovans during the civil War and the immediate aftermath in the late 1990s and early 2000s.  Those who are facing deprivation cases are usually people who claimed asylum over two decades ago and were naturalised many years ago. Many have partners and children who live in the UK.  We understand the frustration of those who are facing deprivation, given that from their perspective they are not involved in criminality and are hardworking people who have stayed in employment or who are running their own businesses.  Nowadays since the case of R (Hysaj) v SSHD [2017] those who are deprived of their citizenship have a right of appeal to the First Tier Tribunal under section 40A of the British Nationality Act but not all cases will be treated the same way and there are several categories of cases.   In seeking immigration advice, it is important to know which one of the four categories of deprivation cases one falls under. 

The four categories of deprivation cases are

1.Recognised as a refugee

Where the applicant was recognised as a refugee or granted leave to remain (such as exceptional leave to remain) following the asylum claim under their false identity. These are very difficult to challenge unless there are some exceptional circumstances.  

2.Legacy Cases

Those who obtained indefinite leave to remain under the Legacy Scheme. This is where an applicant’s initial asylum claim was unsuccessful but nevertheless, they were granted indefinite leave to remain under the Legacy Scheme on the basis of their long residence in the UK.

It is possible to argue that the deception in the asylum claim was not material to the grant of the indefinite leave to remain under the Legacy Scheme thereby breaking the link between the fraud and the grant of the indefinite leave to remain. 

3.Delay

This is where the Secretary of State was aware of a deception but delayed for a long time to do anything about it.  

The decision to deprive after many years of being aware of the deception may be considered to be disproportionate applying the leading case of EB (Kosovo) [2009].

4.Foreseeable Consequences

Where an applicant can establish that the reasonably foreseeable consequences of depriving them of citizenship would give rise to a disproportionate interference with their Article 8 rights.

That is because they will be in ‘limbo’ between the deprivation and the outcome of an appeal or the grant of leave to remain under the Immigration Rules. It is very rarely that these cases will succeed. 

It is noted that removal is not an issue on a deprivation appeal and if you decide not to appeal and the deadline for appealing has passed in theory the Secretary of State can go ahead and make a deprivation order. This is also the case where the appeal is unsuccessful. Then the deprivation order should be made. It is always advisable to put representations to the Status Review Unit about why an applicant should be granted leave to remain supported by evidence.  Where there is no criminality other than the use of false details in an asylum claim the majority of Albanians are granted 30 months leave to remain on a 10 year route to settlement.  If they are refused this leave to remain then that will attract a right of appeal to the First Tier Tribunal on human rights grounds. We have experience of assisting many people in this position and obtaining 30 months leave to remain for them on the 10 year route.