The Upper Tribunal has promulgated its long-awaited judgment in the case of Hysaj v Secretary of State for the Home Department DC/00035/2018. The Appellant appealed to the Upper Tribunal against a decision of the First-tier Tribunal (“FTT”) dated 26 October 2018. Following a 3 day hearing in November 2019 and January 2020, the Upper Tribunal upheld the FTT’s decision, finding that it contained no material errors of law. The FTT had dismissed the Appellant’s appeal against a decision of the Secretary of State to deprive him of his British citizenship, under section 40(3) of the British Nationality Act 1981.
The Appellant has lodged an appeal against the Upper Tribunal’s decision to the Court of Appeal.
The Appellant was born in Albania in 1977 and arrived in the UK in 1998. He claimed asylum, falsely stating that he was born in Kosovo and falsely claiming to have been born in 1981 and therefore an unaccompanied minor. He was granted refugee status and indefinite leave to remain (“ILR”). In 2004 he applied for and was granted British citizenship by naturalisation. On 13 February 2013 the Secretary of state decided that his citizenship was a “nullity” a decision he successfully challenged in the Supreme Court in December 2017 where that decision was held to be unlawful.
Following the Supreme Court decision, the Secretary of State withdrew the unlawful nullity decision and on 3 July 2018 issued a decision to deprive the Appellant of his British citizenship. He appealed to the FTT on the grounds that the deprivation decision was unlawful, disproportionate and unfair and breached his rights under Article 8 ECHR and those of his wife and three British citizen minor children.
In upholding the decision of the FTT, the Upper Tribunal found that:
- There was no ”historic injustice” in the Appellant’s case arising from the fact that the Secretary of State made an unlawful nullity decision in 2013 and defended it in litigation for several years, denying the Appellant the opportunity of benefitting from previous policy on deprivation, in force at the time of his nullity decision, whereby those who had resided in the UK for 14 years were not in general deprived of their citizenship.
- The Appellant did not have any legitimate expectation that, had he been issued with a lawful deprivation decision in 2013, rather than an unlawful nullity decision, he would have benefitted from that policy.
- In any event, the Appellant’s imprisonment as the result of a conviction for GBH “stopped the clock” for the purposes of determining whether or not he had resided in the UK for 14 years under the policy. Residence for 14 years under the previous policy means “continuous” residence, such that a period of imprisonment cannot be taken into account in calculating residence.
- There was no substantive unfairness arising from the fact that others in a similar position to the Appellant were issued with deprivation decisions rather than nullity decisions during the period when the previous policy was in force, and benefitted from that policy, the Secretary of State having conceded up to 100 cases on the basis of her 14 year long residence policy.
- The Secretary of State’s policy that those who are deprived of their citizenship are left with no leave and do not revert to holding ILR, is correct in law.
- On the facts of the Appellant’s case, there was no breach of Article 8 ECHR arising from the Secretary of State’s practice that following deprivation, he would be left “in limbo” for at least 8 weeks (or up to several months), pending any further decision to deport him or grant him leave to remain.
Despite the Appellant’s expectation that the Upper Tribunal’s decision would be a guidance case, it has not yet been reported and there is no specific guidance contained in the decision as published on the Upper Tribunal website. As things stand, the Secretary of State, unless she updates her policy to reflect the judgment, will need to apply to the Tribunal to cite and rely on the judgment, since as yet it is unreported.
The broad principles arising for the judgment suggest that those who were previously issued with an unlawful nullity decision, and as a result lost the opportunity to benefit from the previous policy, will find it difficult to argue that this should be weighed in their favour when arguing that deprivation now is unfair or unlawful.
In any event, any period of imprisonment will not count towards 14 years’ residence for the purpose of the previous policy.
As to Article 8 ECHR, there is nothing in the judgment to prevent an individual arguing that being left “in limbo” without leave to remain, until and unless a further decision is made to grant leave, amounts to a disproportionate interference with rights under Article 8 ECHR. This will depend on the particular facts of the case. For example, here the Upper Tribunal found that the Appellant’s wife, who has leave to remain, could obtain unskilled work (despite having limited English language skills) whilst the Appellant provided day-to-day care for their children. Strong and compelling facts, relating to the welfare and best interests of children, will be required in order to succeed on this ground.
The Appellant’s legal team have appealed against the decision to the Court of Appeal, including on the grounds that the Upper Tribunal misdirected itself in law and failed to properly apply the declaratory principle when concluding that no unfairness arose from the Secretary of State’s unlawful nullity decision in 2013 when at that time the Secretary was clearly pursuing deprivation cases in the Tribunal on the same or a similar fact pattern. The grounds also argue that the Secretary of State’s policy of creating a “limbo” period of several weeks between deprivation and any grant of leave is not the least intrusive measure she could have adopted and is therefore not compliant with Article 8 ECHR.
Judgment details