[2023] UKUT 00294 (IAC)

Kolicaj (Deprivation: procedure and discretion)

Heard at Field House

THE IMMIGRATION ACTS

Heard on 19thJuly 2023

Promulgated on 13 November 2023

Before

THE HON. MR JUSTICE DOVE, PRESIDENT

MR C M G OCKELTON, VICE PRESIDENT

Between

GJELOSH KOLICAJ

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr David Chirico, instructed by OTB Legal

For the Respondent: Ms Cathryn McGahey KC, instructed by the Government Legal Department

1. The requirements of procedural fairness are highly fact-sensitive but will normally require that the Secretary of State notifies an individual that she is minded to deprive them of their citizenship, so as to afford them an opportunity to make representations. The Secretary of State might lawfully dispense with that step, however, where there is proper reason to believe that the individual would attempt to frustrate the process upon receipt of such notification.

2. Where the Secretary of State seeks to deprive a person of British citizenship under s40(2) of the British Nationality Act 1981, she may lawfully dispense with the ‘minded-to’ step where there is a clear and obvious risk of the individual renouncing any other citizenship so as to render themselves stateless and engage the statelessness proviso in s40(4).

3. The power to deprive a person of their citizenship under section 40 of the 1981 Act and the jurisdiction on appeal under section 40A were explained in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00235 and Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 00115 (IAC). Where the Secretary of State determines that the condition precedent for exercising that power is made out, she must then exercise her discretion as to whether to deprive that person of their British citizenship in the light of all the circumstances of the case. It follows that even if the decision of the Secretary of State in relation to the condition precedent is free of public law error, the decision might nevertheless be unlawful where she fails to exercise her discretion, or where the exercise of that discretion is itself tainted by public law error.