The Supreme Court determined that the Home Office may lawfully serve citizenship deprivation notices and orders in immediate succession to prevent dual nationals from exploiting legal loopholes of statelessness.
Facts:
Mr. Kolicaj was originally an Albanian national who moved to the UK in 2005 on a visa. He eventually secured indefinite leave to remain (ILR) after marrying a British citizen and went on to become a naturalised British citizen in his own right in 2009. Following a divorce, he remarried an Albanian national in 2013. His legal troubles began in February 2018 when he pleaded guilty to a conspiracy involving the removal of approximately £8m in criminal proceeds from England to Albania. For his role in this large-scale money laundering operation, which he conducted alongside his brother, he was sentenced to six years in prison.
In late 2020, the National Crime Agency (NCA) recommended that the Home Office revoke Mr. Kolicaj’s British citizenship under Section 40(2) of the British Nationality Act (BNA) 1981. This recommendation was based on the legal power to deprive individuals of citizenship if considered conducive to the public good. While the publicly available policy at the time suggested such powers were primarily for terrorism or war crimes, an internal, undisclosed policy from May 2020 had expanded the criteria to include the most serious cases of organised crime. The Secretary of State for the Home Department (SSHD) agreed with the recommendation to strip Mr. Kolicaj of his status.
On 22 January 2021, the SSHD served a notice of intention to make a deprivation order while he was still in prison. Critically, the formal deprivation order was served only thirty minutes later. This rapid timing was intentional, as the SSHD wanted to ensure that Mr. Kolicaj did not have the window of time necessary to renounce his Albanian citizenship. Had he renounced his Albanian nationality before the British deprivation order was finalised, the UK would have been legally prohibited from stripping his British citizenship, as doing so would have left him stateless.
Mr. Kolicaj challenged this decision. He initially argued that his crimes were not serious enough to justify losing his citizenship and that the impact on his family life had not been properly weighed. While the First-tier Tribunal (FTT) rejected his arguments, the Upper Tribunal (UT) initially sided with him on the basis that the Home Office had failed to properly exercise its discretion. The Court of Appeal (CoA) later found the process was procedurally unfair because he was not given a chance to make representations before the order was made. The SSHD appealed to the Supreme Court.
Decision:
The Supreme Court unanimously allowed the SSHD’s appeal and dismissed Mr. Kolicaj’s cross-appeal. Lord Sales clarified that an appeal against a deprivation of citizenship is a full merits appeal rather than a limited judicial review. This means that a tribunal is not restricted to looking at the evidence available at the time of the original decision but must instead consider the case as it stands at the time of the hearing.
Regarding the issue of procedural fairness and the lack of a pre-decision hearing, the Court found that there was no “fairness gap” requiring the Home Office to invite representations before making an order. The Court held that the right to a full appeal, where an individual can present their own evidence and challenge the Government’s stance, satisfies the legal requirements for a fair hearing.
On the matter of the “undisclosed policy” regarding serious organised crime, the Supreme Court acknowledged that, while the policy should generally have been public, its non-publication did not make the decision against Mr. Kolicaj unlawful. The Court reasoned that, because Mr. Kolicaj became aware of the policy during his appeal and had a full opportunity to argue why his specific criminal conduct did not meet those criteria, he had suffered no actual unfairness.
Implications:
This landmark decision significantly strengthens the Home Office’s powers regarding the deprivation of British citizenship. The judgement effectively gives a “green light” to the Home Office’s tactic of serving a notice and a final order just minutes apart. This strategy is specifically designed to prevent dual nationals from renouncing their second citizenship to trigger the “statelessness bar” under Section 40(4) of the BNA 1981. By upholding this, the Court has essentially ruled that the Government’s interest in maintaining the effectiveness of deprivation powers outweighs an individual’s right to a “warning period”.
The judgement clarifies a major point of procedural law – that appeals can effectively “cure” initial unfairness. The Court held that, because an appeal made under Section 40A is an “appeal on the merits,” any lack of consultation before the decision is made does not violate the principle of fairness. This means that, as long as an individual can eventually argue their case before a judge, the Home Office is not legally required to invite representations beforehand. This reduces the administrative burden on the Home Office but puts significant pressure on the individual to fight a rear-guard action from a position of already having lost their citizenship.
