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Deprivation of British citizenship

Who said immigration woes are reserved for the non-British? Section 40 of the British Nationality Act 1981 (“1981 Act”) affords the Secretary of State a power to deprive an individual of their British citizenship on two occasions:

  • If the Secretary of State is satisfied that deprivation is “conducive to the public good” (section 40(2)); or
  • If the Secretary of State is satisfied that the registration or naturalisation (from which the citizenship resulted) was obtained by means of:
    • Fraud,
    • False representation, or
    • Concealment of a material fact. (section 40(3) if the citizenship was acquired on or after 1 January 1983 and section 40(6) if it was acquired before 1 January 1983).

Deprivation – conducive to public good

Section 40(4) of the 1981 Act provides that the Secretary of State may not make a deprivation order under s. 40(2) if he is satisfied that the order would make a person stateless. Nothing in this section prevents the Secretary of State from making a deprivation order under s.40(3) because the order would render a person stateless. In addition, section 40(4A) further qualifies the proviso of s.40(4):

  • if citizenship resulted from naturalisation,
  • the Secretary of State is satisfied that the person has conducted themselves in a manner which is seriously prejudicial to the vital interests of the UK whilst being British, and
  • there are reasonable grounds to believe that the person is able to become a national of another country, under the law of that country,

then the Secretary of State is not prevented from making an order under s.40(2) even if the person would be rendered stateless.

As to the meaning of “conducive to public good”, the Secretary of State’s Nationality Guidance on Deprivation and Nullity of British citizenship states as follows:

55.4.4 “Conduciveness to the Public Good” means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.

Whilst originally envisaged to cover behaviours such as glorification of terrorism, it appears that the last ground, “unacceptable behaviours”, indicates a broad scope. However, an evaluative assessment in relation to whether the conduct of a person falls within those words is required.

Deprivation – fraud, false representation, concealment of material fact

The relevant Nationality Guidance confirms that “false representation” requires dishonesty on the applicant’s part and therefore an innocent mistake would not give rise to the power to deprive. “Concealment of material fact”, according to the Guidance, means operative concealment, i.e. the concealment had a direct bearing to the decision to register or naturalise.  As with false representation, deliberate dishonesty is also required for the deprivation power to arise and a genuine omission would not suffice. This is no less clear from the fact that “fraud” is considered to encompass either of the above.

Further, the Secretary of State will only be empowered to deprive under this provision if the fraud, false representation or concealment of material fact was “directly material” to the decision to grant citizenship. In Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 (IAC) it was held that the “but for” test for causation was not sufficient.

Exercise of discretion

Even when the pre-conditions for the power to deprive exist, the Secretary of State’s discretion must be exercised in accordance with his published policy, lest there are rational and defensible reasons to depart from it. The Nationality Guidance states as follows: The caseworker should consider whether deprivation would be seen to be a balanced and reasonable step to take, taking into account the seriousness of the fraud, misrepresentation or concealment, the level of evidence for this, and what information was available to UKBA at the time of consideration. Evidence that was before the Secretary of State at the time of application but was disregarded or mishandled should not in general be used at a later stage to deprive of nationality. However, where it is in the public interest to deprive despite the presence of this factor, it will not prevent the deprivation.

Right of appeal against the decision to deprive

The person against whom the Secretary of State has given notice of a decision to make a deprivation order has a right of appeal to the First Tier Tribunal (Immigration & Asylum Chamber) on both the legality and the merits of the Secretary of State’s decision.

Where, however, the decision to make a deprivation order was taken wholly or partly in reliance on information which, in the Secretary of State’s opinion, should not be made public:

  • in the interests of national security;
  • in the interests of the relationship between the United Kingdom and another country; or
  • otherwise in the public interest,

the right will instead be one of appeal to the Special Immigration Appeals Commission (s.40A(2) of the 1981 Act and s.2B of the Special Immigration Appeals Commission Act 1997).

The scope of an appeal against a decision to deprive will be covered in a future post.

Contact our British Nationality Barristers

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