Deprivation and Nullity of British citizenship & Appeal Rights
You may be deprived of British citizenship if it is found to have been obtained by fraud, false representation or the concealment of any material fact. The Home Secretary may also deprive you of British citizenship if, in their opinion, it would be in the public interest to do so and you would not thereby be made stateless.
You will get a right to appeal, speak to ICS Legal by calling us on 0207 237 3388. If you wish to send us the decision from the Home Office, please e-mail us on firstname.lastname@example.org with your personal details and one of our trained UK Immigration Lawyers will contact you with directions.
In recent years there has been an increasing use of powers to deprive people of their British citizenship and withdraw British passport facilities, particularly in respect of those who may be involved in fighting, extremist activity or terrorist training overseas. Under section 40 of the British Nationality Act 1981 (as amended), an order to deprive a person of their British citizenship can be made if the Home Secretary is satisfied that:
it would be conducive to the public good to deprive the person of their British citizenship status and to do so would not render them stateless; or
the person obtained their citizenship status through naturalisation, and it would be conducive to the public good to deprive them of their status because they have engaged in conduct “seriously prejudicial” to the UK’s vital interests, and the Home Secretary has reasonable grounds to believe that they could acquire another nationality; or
the person acquired their citizenship status through naturalisation or registration, and it was obtained by means of fraud, false representation or concealment of any material fact.
In the second and third scenarios, a person may be deprived of their British citizenship even if this would leave them stateless. "Conducive 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. The power to deprive a naturalised person of their citizenship status and leave them vulnerable to statelessness due to “seriously prejudicial” conduct derives from section 66 of the Immigration Act 2014, which came into effect on 28 July 2014. Some commentators have questioned how this controversial power will be applied, and whether it undermines the UK’s international obligations. The Home Secretary also has powers to issue, withdraw and refuse to issue British passports under the Royal Prerogative (an executive power which does not require legislation). The Counter-Terrorism and Security Bill of 2014-15 seek to strengthen powers to seize passports and exclude British nationals from the UK (without extending citizenship deprivation powers).
The British Nationality Act 1981 (‘the BNA 1981’) is the basis of current nationality law. The Act came into force on 1 January 1983. It has always included powers to deprive a person of their British nationality, although the nature of these powers has changed over the years due to amendments made by subsequent pieces of legislation.
The evolution of deprivation of citizenship powers under the BNA 1981 is summarised in the appendices to this note. Most recently, section 66 of the Immigration Act 2014 (in effect from 28 July 2014) inserted new provisions into the BNA 1981 enabling the Home Secretary to deprive a naturalised person of their British citizenship status on the grounds that they had conducted themselves in a manner “seriously prejudicial” to the vital interests of the UK, and there are reasonable grounds to consider that they could be eligible for another nationality. In reaching a decision to deprive on these grounds, the Home Secretary can take into account conduct which took place prior to this section coming into force.2As a result of these changes, the current powers, as set out in section 40 of the BNA 1981
(as amended), enable the Home Secretary to make an order to deprive a person of their British citizenship status in any of the following circumstances:
The person obtained their citizenship status through registration or naturalisation, and the Home Secretary is satisfied that this was obtained by fraud, false representation or the concealment of any material fact (s40(3));
The Home Secretary considers that deprivation “is conducive to the public good”, and would not make the person stateless (s40(2); s40(4));
The person obtained their citizenship status through naturalisation, and the Home Secretary considers that deprivation is conducive to the public good because the person has conducted themselves “in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory”, and the Home Secretary has reasonable grounds to believe that the person is able to become a national of another country or territory under their laws (s40(4A)).
In the first and third scenarios, deprivation of citizenship is permissible even if the person would be left stateless. "False representation" means a representation which was dishonestly made on the applicant’s part. “Conducive 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.
British nationality law provides for six different types of British nationality/citizenship status, of which ‘British citizen’ is the most common. The deprivation of citizenship powers applies to all of these categories. There are also provisions within the common law to ‘nullify’ an application for British citizenship if it is found to have been ineffective from the outset. These do not depend on misconduct by the individual or the Secretary of State being satisfied on certain matters. The application is treated as if it never took place. As discussed in section 6 to this Note, the Prime Minister has recently confirmed that the Government is considering what action it can take to exclude British nationals who are considered to pose a threat to national security but are not covered by existing deprivation of citizenship powers.
Ministers suggested during the passage of the Immigration, Asylum and Nationality Act 2006 that deprivation may be appropriate where the person-
has encouraged or assisted others to commit acts of terrorism;
has committed war crimes, public order offences or other serious crime; or
has carried out acts seriously prejudicial to vital national interests, including espionage and acts of terrorism directed at the United Kingdom or an allied power.
A certificate of naturalisation may, as a matter of law, be ineffective from the outset if it is obtained by means of impersonation.
Claims of fraud or misrepresentation
Home Office may take away your British citizenship if they find that you obtained your registration or naturalisation by fraud, giving false information, or concealing facts that would have affected our decision. This is known as a deprivation of citizenship.
Reasons for depriving you of citizenship might include if you:
concealed information that might show you are not of good characters, such as convictions overseas;
obtained indefinite leave to remain in the United Kingdom by claiming to hold a different nationality;
obtained citizenship as the spouse of a British citizen, but you were not validly married to that person; or
used false documents to obtain citizenship, or cheated in the Life in the United Kingdom test.
Home Office may also take away your British citizenship if, in their opinion, it would be in the public interest for them to do so and you would not be made stateless as a result of Home Office removing British citizenship.
If you are deprived of citizenship, you stop being a British citizen on the date that a deprivation order is issued. After that, you are no longer able to hold a British passport. Any rights you may have to live in the United Kingdom may also be lost. In serious cases, you may be removed from the United Kingdom.
Rights of appeal against deprivation of citizenship
Section 40(5) of the BNA 1981 (as amended) states that before making an order for deprivation of citizenship, the Secretary of State must give the person written notice specifying the reasons for the order and the person’s right of appeal. The British Nationality (General) Regulations 2003 specify the procedure for giving notice of a proposed deprivation of citizenship order and cancelling registration or naturalisation. For example, if the person’s whereabouts are known, written notice may be personally delivered or sent by post. If their whereabouts are not known, notice is sent to their last known address.
Section 40A of the BNA 1981 sets out the rights of appeal. An appeal against the decision to make an order for deprivation is made to the First-Tier Tribunal (Immigration and Asylum Chamber). Onward appeals are to the Upper Tribunal and Court of Appeal (or Court of Session in Scotland). However, if the Secretary of State certifies that her decision was taken wholly or partly in reliance on information which she considers should not be made public in the interest of national security, the UK’s relations with another country or otherwise in the public interest, the right of appeal is to the Special Immigration Appeals Commission instead of the First -Tier Tribunal. Onward appeals are to the Court of Appeal or Court of Session.
Appealing against the decision to make a deprivation order is ‘non-suspensive’ – i.e. the deprivation order can be made (and the person deported from the UK if they are not already outside the UK) whilst the right of appeal is being exercised. In the event of a successful appeal, the Tribunal (or SIAC) may make a direction that a deprivation order is treated as having had no effect.
Speak to our Nationality Team on 0207 237 3388 or complete our contact form, by clicking here.