Law Corrected on British Citizenship and Identity Fraud

R (Hysaj & Ors) v Secretary of State for the Home Department [2017] UKSC 82 (21 December 2017)

Extraordinarily, the Home Office sought to have these appeals allowed by consent despite the fact that Dinjan Hysaj and Agron Bakijasi had fraudulently deceived the authorities in obtaining ILR. The conflict in the former Yugoslav republic of Kosovo created more than 850,000 refugees and tens of thousands of people arrived in the UK claiming that they had been the victims of persecution. In reality, many of them were Albanian nationals who had lied about their true identity. No concrete action was taken against Hysaj when his lies first came to light. But after being sentenced to five years’ imprisonment for causing GBH, he was informed that he was not and never had been a British citizen because the grant had been obtained by impersonation. Bakijasi’s fraud surfaced when his partner returned to Albania in order to regularise her immigration status. The question for the Supreme Court was whether the misrepresentations made by the appellants in their applications for British citizenship made the grant of that citizenship a nullity, rather than rendering them liable to be deprived of that citizenship under sections 40 and 40A of the British Nationality Act 1981. Bound by existing authority, the Court of Appeal had no choice but to uphold Ouseley J’s first instance judgment that the appellants had not in fact become British citizens when issued with certificates by the Home Office purporting to register them as having citizenship by naturalisation.

Nevertheless, Sales LJ found the binding authorities to be “problematic in various respects”. The present judgment therefore allowed the Supreme Court to hold that the decisions of the Court of Appeal in Parvaz Akhtar [1981] QB 46 and Bibi v ECO (Dhaka) [2007] EWCA Civ 740 were wrongly decided. Hysaj was born in Albania in 1977 and arrived in the UK and claimed asylum in July 1998. He falsely claimed to be a citizen of the former Yugoslavia from Kosovo, where he said he had been persecuted. He used his real name but lied by understating his age so as to be considered a child when he claimed asylum. He was granted refugee status and obtained ILR in 1999. He applied for naturalisation as a British citizen in 2004 and was granted British citizenship in his own name but with false details regarding his date of birth, nationality and place of birth. Bakijasi entered the UK in 1999 and also falsely claimed to be a citizen of the former Yugoslavia from Kosovo and gave a false name and a false date of birth in his asylum claim, which was refused. But he was granted ILR under the Family ILR exercise in 2005. He was subsequently granted British citizenship under a fabricated name, date of birth, and place of birth.

Upon discovering the frauds, in light of binding Court of Appeal authority, the Home Office decided that in each case the grant of citizenship was a nullity and that Hysaj and Bakijasi were not, and never had been, British citizens albeit ILR had been validly granted to them. A person may acquire British citizenship by naturalisation under section 6(1) of the 1981 Act. However, in circumstances where citizenship obtained by registration or naturalisation involves “fraud, false representation or concealment of a material fact”, it is possible for the Home Secretary to deprive a person of citizenship pursuant to section 40 of the 1981 Act. Moreover, under section 40A, most deprivation decisions carry a right of appeal to the First-tier Tribunal.

The Supreme Court

Lady Hale and Lords Kerr, Wilson, Hughes and Hodge unanimously allowed the appeals by consent. The justices agreed with the government’s reasoning and held that misrepresentations in an application for UK citizenship render the applicant liable to be deprived of that citizenship pursuant to section 40 of the 1981 Act. Notably, despite the existence of four judgments in the Court of Appeal, no House of Lords or Supreme Court authority existed on the issues relevant to this appeal. During the course of her judgment, for simplicity’s sake, Lady Hale used “X” to refer to the applicant for citizenship and “Y” to refer to the identity in which he applied for citizenship.

(i) Earlier Authorities

In Sultan Mahmood [1981] QB 58, so as to obtain registration as a British citizen under section 5A of the British Nationality Act 1948, X impersonated a real person his dead brother-in-law and cousin Y. Holding that X had never become a British citizen, Roskill LJ discerned three possibilities as a consequence of the purported grant (i) it might have been a grant to Y but it could not have been, because Y was dead, (ii) it might have been a grant to X but it could not have been, because the Home Office had no knowledge of X, believing him to be Y, and (iii) it might have been of no effect at all and it could only be a nullity.

In Parvaz Akhtar, X’s purported father Z registered him in the name of Y under section 7(1) of the 1948 Act which provided for the registration of a minor child of a British citizen. Mahmood led the Court of Appeal to hold that the Home Secretary had no power or intention to register X or any Y other than an actual son of Z. Therefore, X had never become a UK citizen.

In Ejaz [1994] QB 496, X applied for citizenship in her real name under section 6(2) of the 1981 Act – which provides for the naturalisation of a person who is married to a British citizen – but it transpired that X’s husband had been granted a British passport in a false identity and he was hence not, and never had been, a British citizen. However, the Court of Appeal declined to hold that the grant of citizenship was a nullity. Key in the ruling was the point that the uncertainty and injustice which could be caused by holding that a person had never been a citizen, with potential effects upon third parties such as children, was very undesirable in matters of status. Alternatively, no such retrospective effect was triggered by deprivation of citizenship.

In Bibi, X had obtained entry to the UK by assuming the identity of Y, another real person who had been granted an employment voucher to enable him to enter. After completing five years’ residence in the UK, X was registered as a British citizen in the name of Y. The appellants were the wife and four children of X and claimed a right of abode in the UK based on the purported citizenship of X. Wilson LJ (as he then was) applied Mahmood and Akhtar to hold that because X had applied for citizenship in a false identity there never was a grant of citizenship to him. Sir Mark Potter and Sedley LJ concurred.

Notably, these authorities show a gradual expansion of the nullity approach since Mahmood. The principles can be summarised in the following way. Mahmood established that if X adopts the identity of Y, another real person, and Y has the characteristics required to obtain citizenship, the purported grant of citizenship to X in the identity of Y is a nullity. Akhtar decided that if X adopts the identity of Y, where Y is not a real person but a false identity created by X (or someone else for him) having the characteristics required to obtain citizenship, the purported grant of citizenship to X as Y is a nullity. Bibi decided that if X adopts the identity of Y, another real person, and X acquires the characteristics needed to obtain citizenship by using the identity of Y, the purported grant of citizenship to X as Y is a nullity.

Significantly, in the present cases Kitchin, Floyd and Sales LJJ went a stage further than Bibi and decided that if X adopts the identity of Y, where Y is a false identity created by X and X acquires the characteristics needed to obtain citizenship by using the identity Y, the purported grant of citizenship to X as Y is a nullity.

(ii) Official Position

In light of the existing authorities, after reviewing her own position the Home Secretary arrived at the view that the law took a wrong turning after Mahmood, the type of case involving two real people, X and Y where X impersonates Y for the purpose of applying for citizenship. Y possesses the characteristics required for citizenship and is granted citizenship after consideration. However, Y has never applied for citizenship, may not want it, or may even be dead and thus it is not possible to say that citizenship has been granted either to Y or to X. Therefore, there was no grant of citizenship and Mahmood remains good law.

Comparatively, in subsequent case law, X (or someone on his behalf) creates a false identity and uses it and in that identity he acquires the characteristics needed to obtain citizenship and then applies for citizenship using the false identity Y. However, X satisfies the requirements for citizenship despite acquiring them by using the false identity Y. The decision-maker considers X’s application in identity Y and citizenship is granted in that identity. In this type of case, the government’s view was that the grant of citizenship is valid, but that its recipient may later be deprived of it under section 40 of the 1981 Act.

Overall, Ejaz was rightly decided but Akhtar and Bibi were wrongly decided. Like the instant case, the Court of Appeal’s decisions in Akhtar and Bibi were founded on the principle that a category of identity fraud exists which is so serious that a purported grant of citizenship is of no effect. However, the government accepted that a principled and clear definition of the types of fraud which will be so serious as to have this consequence has not been articulated by the courts. For instance, neither appellant pretended to be someone he was not. Hysaj used his real name but also used a false date of birth, nationality and place of birth to obtain ILR and gained citizenship on the basis of the ILR that he himself had obtained. Bakijasi used a false name in obtaining ILR but otherwise gained citizenship in the same way.

In light of the information on the naturalisation certificate, Ouseley J had found that the key characteristics of identity for this purpose were the name, date of birth, and nationality or the country and place of birth. However, he judged that there had to be fraud and innocent mistakes or misunderstandings were insufficient in that regard. The resultant uncertainty makes the law difficult to apply in practice. Numerous illogical and unsatisfactory consequences also arise and it is unclear when the use of a false identity to obtain citizenship by one person will result in the nullification of the grant of citizenship to persons making a derivative claim, whether as a spouse or child.

Overall, it is difficult to reconcile Akhtar, Ejaz and Bibi. Unsurprisingly, Ouseley J highlighted that either all derivative citizenship should be of no effect if the citizenship from which it is derived is of no effect, or the nullity should be confined to the person who obtained citizenship using the false identity. He also pointed out that the logic of the position then adopted by the Home Secretary would also nullify the grant of ILR, albeit she has never contended for this.

Therefore, agreeing with the government’s reasoning, Lady Hale held that:

20. It follows that the decisions of the Court of Appeal in Akhtar and Bibi must be overruled and that this appeal must be allowed by consent in terms of the detailed order proposed.

Comment

This judgment clarifies that the concept of nullity will only be suitable where a person applies for British citizenship impersonating another real person who possesses the qualities to acquire such citizenship. The outcome is clearly a boon to the large cohort of persons who created a false identity and used it to obtain citizenship. Grants in such cases will no longer be considered a nullity from the outset and access to a full merits appeal will be available under section 40A of the 1981 Act. Alternatively, in national security cases, a right of appeal on the lawfulness of the deprivation of citizenship will be available under section 2B of the SIAC Act 1997.

The protection provided to children and partners by the government’s generosity is another telling feature of these proceedings. Indeed, the terms of the consent order record that both Hysaj and Bakijasi’s children are British citizens within the meaning of the 1981 Act and the harsh retrospective effect of a nullity has been averted in their cases. The Home Office will need to amend its guidance so as to reflect the emollient effects of this judgment.

However, despite the Home Office’s clear wish that these appeals should be allowed, some journalists think that this decision has created a “loophole” for criminals. Similarly, there is also outrage that the exorbitant costs (reportedly £1,000,000) of this litigation will be paid out of the public purse.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Asylum, Bangladesh, Children, Citizenship and Nationality, Court of Appeal, False Statements and Misrepresentations, Families, Judicial Review, Pakistan, Refugee Convention, Spouses and tagged , , , , , , , , , . Bookmark the permalink.

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