CA-2024-001138 - [2025] EWCA Civ 1337

The Appellant entered the UK illegally on 28 November 1999 and claimed asylum. He claimed to be Betim Jonuzi, born on 22 February 1976, from Kosovo. In fact, he is Betim Onuzi, born on 23 February 1976, from Albania. He made an asylum application alleging that he had left Kosovo because of the war and that he had been persecuted by Serb police and military groups because of his ethnicity.

A letter from the Home Office dated 13 February 2001 to an unknown recipient (addressed to ‘Dear Sir or Madam’) indicated that he had been informed by social services in September 2000 that he had been granted Exceptional Leave to Remain (“ELR”) until 16 August 2004. The Home Office clarified that this incorrect record was transmitted to social services in error and the Home Office’s internal system indicated that there was no evidence of a grant of ELR on his file. Although a field in the Home Office’s GCID system was checked to show that the Appellant had been refused asylum and granted ELR, there is no other evidence to show that he was ever notified of a decision to grant ELR by the Home Office or was issued with papers actually granting him ELR.

His case came before a Special Adjudicator who concluded on 24 May 2001 that following the Secretary of State (“SSHD”)’s administrative error, the SSHD was estopped from denying that the Appellant had been granted ELR for four years up to 16 August 2004. It remains unclear on what basis the case came before the Special Adjudicator or why he considered he had jurisdiction to make such a decision in all the circumstances. It appears that no formal decision was made to grant ELR.

On 9 July 2004, the Appellant made an application for indefinite leave to remain (“ILR”), also in the false identity. He signed a declaration that the information given in the form was complete and true to the best of his knowledge, and that he would inform the Home Office if there was a material change in circumstances. The form set out in bold type, on the signature page, that it was an offence to make a false statement or representation or to obtain or to seek to obtain leave to remain in the UK by means which include deception.

A Home Office official noted in internal minutes in respect of that application on 10 March 2006 that:

“This has not been handled well. We have never recovered from the original error. I doubt that this case is even for ELR as the decision was withdrawn on 30 Jan 04 with an expectation that consideration would be given to granting the balance of exceptional leave. Nevertheless enough time has been wasted, so we should reach a decision.

The original application was made on 28 November 1999. I do not think it appropriate to return to the Asylum Group in view of the failure to grant exceptional leave. Had it been implemented then MM would have been in a position to consider the grant of ILR. Looking at this mistake ridden case I agree that we should grant ILR. I cannot see any fairer conclusion.”

The Appellant was accordingly granted ILR in a letter dated 17 May 2006. He applied to naturalise as a British citizen on 25 April 2007, again, in the false identity put forward in his original asylum claim.

Section 3 of the application form was entitled ‘Good Character Requirement’. At the top of the section it stated that ‘you need to give information which will help the Home Secretary to decide whether he can be satisfied that you are of good character.’ Specific questions were asked about criminal convictions and activities relating to international crimes. At paragraph 3.11 of the application form the Appellant was asked: ‘Have you engaged in any other activities which might be relevant to the question of whether you are a person of good character?’ to which he ticked the box stating ‘no’.

Section 6 of the form required the Appellant to make a series of formal declarations. The section began by giving a warning that knowingly giving false information in the form is a criminal offence. At paragraph 6.1 the appellant was asked to confirm that the information given in the application was correct. At paragraph 6.5 he confirmed that he understood that a certificate of citizenship may be withdrawn if it is found to have been obtained by fraud, false representation or the concealment of any material fact. At 6.6 the Appellant was given an opportunity to make representations as to why discretion should be exercised if he did not meet all the statutory requirements. He did not complete that section.

Following investigations conducted in 2020, it was discovered that the Appellant was a national of Albania and was not from Kosovo as claimed. When invited to make representations, he admitted that he had lied about his real identity because he did not want to be returned to Albania. In a statement, the Appellant expressed remorse for what he had done and asked for discretion to be exercised not to deprive him of citizenship status because he had lived in the UK for over 20 years and had a wife and three British citizen children here.

By letter dated 4 November 2020 the Appellant was informed that he was being deprived of British citizenship pursuant to s 40(3) of the British Nationality Act 1981. Paragraphs 17 and 20 of the letter stated:

“17.

The decision to grant you asylum was made on the basis that the Home Office had wrongly issued ELR so had given you a reasonable expectation. If it was known at the time that your asylum claim was fabricated and ELR was issued in a fraudulent identity, it is likely you would have not been refused ILR. The mistake of granting ELR would have been outweighed by the ILR decision maker by the fact that the initial application was fraudulent, so the Home Office would not have made a mistake of granting ELR by administrate error if you would not have set-out to deceive the Home Office allowing you to remain in the United Kingdom. You persisted with the deception over 20 years and continued to submit fraudulent applications, you only admitted the truth after evidence of the fraud had been put to you. It is reasonable to assume that you would have continued to deceive if you had not been caught. The fraud is a clear attempt to undermine the UK immigration system and obtain status to which you were not entitled and would not have been granted had the truth been known.

…

20.

Your residence in the UK was built on deception. Had it been known that you were a national of Albania and not Kosovo as falsely claimed then your removal could have been pursued. Using your fraudulently asylum grant you persisted with the deception, but had the truth been known it is likely that you would have been refused settlement, meaning you could not have met the mandatory requirement to possess settled status for the purpose of naturalisation. You persisted with the deception in your naturalisation application and ticked the box to indicate that you had not done anything to suggest you was not of good character. Had you told the truth in your naturalisation application it is highly likely you would have been refused citizenship on character grounds, therefore the deception was material in that you should not have had been ILR (and would have been refused on that basis alone), nor would you have been deemed to be of good character given your deception over 20 years. The fraud is a clear attempt to undermine the UK immigration system and obtain status to which you were not entitled and would not have been granted had the truth been known. Given your conduct, deprivation is considered to be both a balanced and proportionate response.”