Secretary of State for the Home Department v Kolicaj [2025] EWCA Civ 10: Procedural Fairness Demands Better
30 Jan 2025
Summary:
This is an analysis of the case Secretary of State for the Home Department v Kolicaj [2025] EWCA Civ 10 by Francesca Dickens, pupil barrister at One Pump Court. She will be accepting instructions in Immigration and Family law from April 2025.
Francesca’s supervisor, David Chirico KC, acted for the Respondent Mr Kolicaj in this matter, with Mr Glen Hodgetts of Great George Street Chambers as his junior. David Chirico KC and Mr Glen Hodgetts were instructed by solicitors OTB Legal.
In this case, a unanimous Court of Appeal found that the deprivation of citizenship decision taken against Mr Kolicaj was procedurally unfair due to his inability to make representations or pursue a full merits appeal.
Background:
On 22 January 2021, the then-Home Secretary, Priti Patel (‘SSHD’) notified Mr Kolicaj of her intention to deprive him of his British citizenship. Serving notice is a mandatory requirement under s. 40(5) of the British Nationality Act 1981 (‘BNA’). 30 minutes later, the SSHD deprived Mr Kolicaj of his citizenship under s. 40(2) BNA (‘the Deprivation Order’).
Mr Kolicaj had naturalised as a British citizen in 2009. Soon after, he married an Albanian woman, whose leave to remain in the UK was contingent on Mr Kolicaj on the date of the deprivation decision. They had two children together, born 2013 and 2015. On 27 February 2018, Mr Kolicaj pleaded guilty to conspiracy to remove proceeds of crime amounting to approximately £8 million out of the UK. He was sentenced to 6 years’ imprisonment.
The First-tier Tribunal (‘FtT’) dismissed Mr Kolicaj’s appeal. The Upper Tribunal, however, found in a reported decision that the SSHD had not exercised her power of discretion, which is an inherent component of the two-part process required under s. 40(2) BNA. In other words, the SSHD determined that Mr Kolicaj’s deprivation was conducive to the public good (the condition precedent for a s.40(2) deprivation order), but then proceeded directly to make a decision to deprive him of his citizenship, without considering other factors (such as family life, private life, medical concerns, reduced risk of re-offending) which may, or may not, have persuaded her to exercise her discretionary power differently.
The SSHD appealed to the Court of Appeal, arguing that she had been aware of her discretion, and she had chosen to exercise it in this case. Mr Kolicaj contested this. He additionally sought to uphold the UT decision on two further grounds: (1) the deprivation process was inherently unfair because he had not been offered the opportunity to make representations prior to the decision; and (2) the SSHD unlawfully applied an unpublished policy when making her decision, thereby denying Mr Kolicaj the opportunity to make submissions by reference to it.
Deprivation: a (very brief) recent history
Deprivation of citizenship is a draconian power, one with the capacity to expose the person affected – and their families – to potentially severe human rights violations. Hannah Arendt famously formulated the right to citizenship as ‘the right to have rights;’ arguing that the stripping of citizenship from persecuted groups paved the way for their dehumanisation and the consequent atrocities of the Holocaust.
Today, deprivation affects racialised minorities far more than it does ethnic white people, meaning that those with heritage from another country will always have a more precarious status – even if they have spent their entire lives in the UK.
The SSHD started to increase her use of deprivation measures after the 7/7 bombings in London. Although initially used solely in the context of terrorism, following the Rochdale scandals the SSHD began to test the power in the context of serious organised crime (see, for example, the case of Aziz v. Secretary of State for the Home Department [2018] EWCA Civ 1884). An unpublished policy written in May 2020 recommended that the use of deprivation powers in this context should be limited to ‘the most serious and high-profile cases’ (‘the unpublished policy’).
As explained in §§9(i) and 13 of the judgment, the SSHD’s previous practice in deprivation cases under 40(2) was to serve a notice of deprivation, containing reasons, which could then be appealed to the FtT. Whilst the appeal was in progress, the person would retain their British citizenship, and a deprivation order would only be made once the had become Appeal Rights Exhausted (see, for example, Laci v. Secretary of State for the Home Department [2021] EWCA Civ 769). When considering the appeal, the FtT could review the merits of the decision in its entirety, and the appellant would have the opportunity to submit representations and evidence arguing that the deprivation of their citizenship was not conducive to the public good.
Recent changes
Edis LJ records two major shifts that have since altered the legal landscape of deprivation cases: (1) a change in SSHD practice concerning notice; and (2) the restriction of scope of an appeal to the FtT in deprivation decisions following the Supreme Court judgment in R (on the application of Begum) (Respondent) v Secretary of State for the Home Department (Appellant) [2021] UKSC 7 (‘Begum’).
Change in SSHD Practice
§§13 and 14 explain how the SSHD’s previous practice of giving notice in the Rochdale cases unveiled a method by which some British citizens could frustrate their deprivation by renouncing their other nationality. The SSHD was then prevented from pursuing deprivation because the British citizen would become stateless (prohibited by 40(4) BNA).
The SSHD changed her practice. Instead of serving notice and allowing for the person affected to pursue their right of appeal before they issued the deprivation order, the SSHD started to serve the deprivation order in quick succession after giving notice. This is starkly demonstrated in Mr Kolicaj’s case, where the deprivation order came 30 minutes after Mr Kolicaj received notice.
The new practice prevented Mr Kolicaj firstly from making representations to the SSHD, and secondly from pursuing a full merits appeal before an independent adjudicator before the deprivation order was finalised. Edis LJ commented that it was ‘surprising’ that the new practice had not been written down (§14).
Begum
The effects of Begum continue to reverberate in deprivation cases, as is clear from §15. Begum has been treated as reducing the scope of the FtT’s jurisdiction on appeal from a deprivation decision to a review on public law grounds. In other words, the FtT is permitted to look at whether the SSHD made any legal errors rather than conducting a full merits appeal. It therefore acts as a reviewer affording ‘respect’ to the SSHD’s decision, rather than a second adjudicator deciding for itself.
Crucially, this means that the FtT is not allowed to consider any new evidence or representations which were not before the original SSHD decision-maker. In cases where the deprivation order is issued so soon after notice, this essentially means that the person affected has no opportunity to notify the SSHD of facts she may not be aware of (children, health issues, care responsibilities, etc) or to challenge whether his/her offending is of the most serious and high-profile kind.
The exception to this is that the FtT has full jurisdiction to consider the merits of a human rights appeal relying on Article 8. Unfortunately, as the law is presently interpreted, this avenue is heavily restricted due to the decision at §26 of Aziz and §25 of Laci that deprivation (as opposed to deportation) only has a limited effect on one’s Article 8 rights.
In summary, the effect of Begum was to restrict the FtT in Mr Kolicaj’s case to reviewing the SSHD’s decision on public law grounds. It could only consider fresh evidence and representations that related to the limited effects of deprivation on Mr Kolicaj’s Article 8 rights, and not the effects of any likely deportation.
Mr Kolicaj’s case
The documents determining Mr Kolicaj’s case did not reflect this change in practice. The SSHD’s officials advised her that Mr Kolicaj would have the opportunity to speak on several occasions, namely:
- His Article 8 assessment informed the SSHD that only a preliminary Article 8 assessment could be made as Mr Kolicaj’s full circumstances were not yet known. It was noted that he would “have the opportunity to make representations against each decision” (§9(iv).
- The assessment relating to the best interests of his children was similarly phrased (§9(iv));
- The letter written by the National Crime Agency stated that Mr Kolicaj would have “ample opportunity to raise’ human rights considerations in the course of his appeal (§9(ii)).
As the UT remarked at §57, it is apparent ‘the author anticipated that it would be an appropriate part of the decision-making process that the appellant would be given the opportunity to provide further information on these matters.’
These indications were ‘misleading’. Edis LJ confirms in §11 that “the process as implemented in [Mr Kolicaj’s case] did not involve the Secretary of State having any material supplied by or on behalf of Mr. Kolicaj. A decision adverse to his interests was made without him being given any opportunity to make representations to the Secretary of State at any stage.’
Edis LJ offers two examples of the representations Mr Kolicaj might have wished to rely on, but was prevented from doing so by the SSHD’s change in practice and consequent effects of Begum:
– His low risk of re-offending per a Probation Report and alleged change in circumstances (§17);
– That his offending was not of the most serious and high-profile kind (in any event, Mr Kolicaj was prevented from making this representation because he had not been made aware of the unpublished policy) (§15).
Mr Kolicaj’s first ground of appeal: procedural unfairness
Edis LJ begins his discussion as to whether Mr Kolicaj’s inability to make representations constituted procedural unfairness at §25. He first quotes from Bank Mellat v HM Treasury (No 2) [2014] AC 700 and Balajigari v SSHD [2019] EWCA Civ 673, which summarise the rationale behind the common law principle that representations should normally be made before a decision is taken. These reasons are, in summary: (1) that the decision-maker ensures she is fully informed; (2) respect is shown for the individual affected; and (3) the mind of the decision-maker may become ‘unduly fixed’ after the decision is made.
Edis LJ goes on to state that 40(5) BNA ‘clearly’ indicates Parliament’s intention to place a ‘high value on procedural fairness’. He roundly rejects the SSHD’s motivation for dispensing with notice when there is no full right of appeal and in §31 berates the SSHD’s lack of thought and sacrifice of the obligations of fairness in the interest of expediency. His comments in §31 are wholly supported by Underhill LJ in §43.
Whilst noting that it is not for the Court to devise a new procedure, Edis LJ suggests in §29 that the SSHD’s new practice of dispensing with notice might be ‘legitimate’ so long as she agrees to conduct a full merits review of her decision once representations have been made. This may trouble practitioners, particularly given the third rationale from Balajigari (noted above). Moreover, Edis LJ’s apparent acceptance of the justification for departing from Balajigari fails to engage with Mr Kolicaj’s submission that there is no evidential basis for assuming that British nationals will be able, without delay, to renounce a second nationality. The point was made on Mr Kolicaj’s behalf that renunciation is likely to be a lengthy process given the onerous requirements of application forms and ID checks in the context of limited bureaucratic capacity.
Mr Kolicaj successfully argued that the decision was procedurally unfair and consequently the Court of Appeal quashed the deprivation decision (§41).
Mr Kolicaj’s second ground of appeal: the unpublished policy
Having already quashed the deprivation decision, the Court did not need to deal with the second ground raised by Mr Kolicaj (that the decision was unfair because the SSHD relied on an unpublished policy). The SSHD has since published the policy.
The SSHD’s ground of appeal: discretion
The SSHD was successful on this ground, with the Court finding the UT’s decision that the SSHD was unaware of and did not exercise her discretion to be uncompelling (§37). Unfortunately for the SSHD, this does not assist her because the Court quashed the deprivation decision in any case due to its procedural unfairness.
What’s next?
It is interesting to consider how this judgment may affect the rights of those deprived of their nationality whilst outside the country. In recent years, the same practice of dispensing with notice has become commonplace; alongside depriving the person affected of the right to make representations, it also prevents them from returning to the UK and relying on their right to family and private life under the ECHR. Kolicaj may yet broaden the merits of challenging SSHD practice in this context.
For further reading, please see this interesting article on Kolicaj by Sonia Lenegan of Free Movement. Sonia concludes that the SSHD’s ‘apparent habit’ of appealing cases without thoroughly considering their merits may well have backfired in this case. For now (at least) proponents of procedural justice can breathe a sigh of relief.
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