SSHD v Kolicaj – UK Constitutional Law Association

Any British citizen that occurs to carry citizenship for one more nation might discover themselves in an invidious place. If the Residence Secretary decides that it will be ‘conducive to the general public good’, they will single-handedly strip an individual of their citizenship, and with it, their proper to stay within the nation. As long as the deprivation wouldn’t make them stateless, the regulation provides few protections past a restricted proper of attraction and the necessity for the Residence Secretary to have some causes.

Shamima Begum is essentially the most high-profile sufferer of this energy, along with her ostensible possession of Bangladeshi citizenship that means she nonetheless languishes in a detention camp in Syria. However she is just not the one citizen to search out themselves solid out of the British state, even when she is perhaps an exemplar of the ability’s flagrant abuse. Over the course of the final decade, Residence Secretaries started to show to the ability, contained in part 40(2) of the British Nationality Act 1981, extra usually. From 2010 to 2015, the numbers trundled on at a lower than outstanding fee, with fewer than ten deprivation orders for the ‘public good’ made every year. However after the emergence of Islamic State, the speed nearly tripled, from 5 in 2015 to 14 in 2016, earlier than rising exponentially in 2017, when the Residence Secretary made 104 orders. Since the specter of Islamic State has receded, so too have the numbers. Between 21 orders had been made in 2018 and 27 in 2019, earlier than they dropped to 10, 3 and a pair of within the years that adopted. But as a latest case earlier than the Courtroom of Attraction, Secretary of State for the Residence Division v Kolicaj, reveals, it’s a energy that’s nonetheless getting used, and abused.

On this endeavour, the courts have tended to be prepared collaborators. Even if the ability was prolonged in 2003 in order that native-born residents in addition to naturalised residents might have their citizenship eliminated, the courts have been cautious of interfering with a Residence Secretary’s deprivation orders. Refusing to let British residents return to the UK, even whether it is as a result of they deserted the UK to battle for Islamic State, and even when they haven’t any different nation to show to, has been discovered to be properly inside the British state’s energy.

This was one of many Supreme Courtroom’s conclusions in Pham v Residence Secretary, handed down in 2015. Pham Ming Quang, a British-Vietnamese nationwide, challenged the Residence Secretary’s choice to strip him of his British citizenship after the safety providers notified her that he was suspected of terrorist actions. He claimed that the actual fact the Vietnamese authorities had refused to acknowledge his citizenship left him de facto stateless, opposite to home and worldwide regulation. The Supreme Courtroom had none of it. Pham was a local Vietnamese nationwide who had solely gained British citizenship in 2011, and who was since suspected of travelling to Yemen to coach at terrorist coaching camps. Vietnam’s authorities tried to strip him of his citizenship, abjuring their obligations, however the Supreme Courtroom unanimously held that it had finished so with out following Vietnamese regulation. As a matter of regulation, Pham was nonetheless Vietnamese. He may need been de facto stateless, however he was not de jure stateless. And that was what counted.

Pham might have been a defensible choice, however the judgments of the Supreme Courtroom since then have widened the goalposts for the Residence Secretary’s. After Begum was stripped of her citizenship by Sajid Javid in 2019 (for causes that also appear extra rooted in political expediency than nationwide safety), she challenged it earlier than the Particular Immigration Appeals Fee (SIAC), established in 1997 to listen to circumstances on deportation and citizenship that relate to nationwide safety. Very like Pham, she argued that Javid’s choice left her de facto stateless. Not like Pham, she argued that she didn’t have joint British-Bangladeshi citizenship, however solely the potential proper to Bangladeshi citizenship. Bangladesh’s legal guidelines might have entitled her to citizenship by means of her dad and mom, however as far as Bangladesh was involved, they’d no concept Begum existed till Britain tried to rid itself of its turbulent child-bride. Absent her dad and mom, she had no ties to Bangladesh, by no means having set foot on Bangladeshi soil. However this, too, SIAC concluded was inside the Residence Secretary’s authority. Bangladeshi regulation meant that her citizenship to the nation existed as a matter of truth. The truth that the Bangladeshi authorities declaimed any accountability, certainly threatened to hold her if she was introduced there, was unlucky, however not the priority of the regulation and so, the courts.

Over the course of the following 4 years, Begum continued to problem and to lose to the federal government within the courts. The Courtroom of Attraction supplied transient respite in 2020, holding that she had the proper to return to the UK to problem the Residence Secretary’s order, however this hope was extinguished by the Supreme Courtroom a yr later, when the justices reversed the Courtroom of Attraction. SIAC turned down her attraction in opposition to the substance of the choice in 2023, which was confirmed by the Courtroom of Attraction, earlier than the Supreme Courtroom introduced the curtain down on her home challenges final yr, refusing her permission to attraction on the idea that her case didn’t increase ‘an controversial level in regulation’.

It was the implications of the Supreme Courtroom’s choice in Begum v SIAC in 2021 that had been at broader difficulty the Courtroom of Attraction’s choice in Kolicaj. In Begum, the Supreme Courtroom concluded that Begum was not entitled to convey recent proof in her attraction earlier than SIAC. Her attraction was speculated to relaxation upon an error in regulation made by the courtroom in first occasion, somewhat than as a result of she had new proof or new authorized arguments. Provided that the attraction is anxious with violations of a citizen’s human rights can the reviewing courtroom probably ‘re-consider the matter de novo or to re-take the choice itself’. Deference as an alternative should be paid to the decision-maker, and regard given to the truth that Parliament gave the potent energy to strip citizenship to the Residence Secretary and to not the judiciary.

For Gjelosh Kolicaj, this lack of ability to convey new proof earlier than an appellate courtroom positioned him in a quandary. An Albanian nationwide who had acquired British citizenship by naturalisation in 2009, he had been convicted of high-value cash laundering in 2018 and sentenced to 6 years imprisonment. Three years into his sentence, shortly earlier than he can be eligible for launch on licence, he was served with a deprivation order. It commanded that he ‘be disadvantaged of his British citizenship on the grounds of conduciveness to the general public good’ and that the ‘Secretary of State is glad [he] won’t be rendered stateless by such motion’.

Earlier than this order was handed to him in jail Kolicaj had barely thirty minutes discover that the Residence Secretary, then Priti Patel, was contemplating stripping him of British nationality. Nor, as can be essential earlier than the Courtroom of Attraction, did he have any alternative to plead his case. But by advantage of Begum v SIAC, he can be prevented from bringing any new proof or giving causes for why he shouldn’t be stripped of his citizenship earlier than the appellate courtroom. As an alternative of the Higher Tribunal being empowered to conduct a full deserves assessment on attraction, which might permit it to listen to new proof, the Supreme Courtroom’s choice has restricted it to listening to a assessment solely on commonplace public regulation grounds – that the choice made was past the Residence Secretary’s jurisdiction, procedurally unfair, or substantively irrational. In Kolicaj’s case, this meant he had been stripped of his citizenship – maybe for good cause – however had not been given any alternative to inform his aspect of the story. And even Albanian cash launderers are entitled to that.

There have been causes behind the Residence Secretary’s reluctance to offer Kolicaj the chance to make representations. After the sexual abuse scandal in Rochdale, quite a few naturalised residents had pissed off ‘deprivation and deportation by… renouncing their unique nationality’ [para 13], making certain that such any order would render them stateless. The Residence Workplace’s resolution was to not give discover, however to spring the order upon them. Whereas understandable, the Courtroom of Attraction archly noticed that ‘surprisingly, this new follow doesn’t seem to have been written down wherever’ [para 14].

Turning again to the laws, the Courtroom of Attraction held that the 1981 Act ‘clearly point out[s] a Parliamentary intention to position a excessive worth on procedural equity’ [para 27]. Denying any topic of a deprivation order the chance to make representations each earlier than the choice is made and on attraction is to sentence them to Alice’s Wonderland. There is perhaps good the explanation why somebody is perhaps entitled to maintain their citizenship, but when they aren’t given the chance to lift them earlier than the choice is made, and if this estops them from elevating them after the choice is made, the query is when such arguments may be made. (Even when, in Mr Kolicaj’s case, ‘it will be open to a rational choice maker to determine [he] has proven himself to be very dishonest and avaricious’ [para 18] and due to this fact the legitimate topic of a deprivation order).

But despite the fact that this choice went in opposition to the federal government, the Courtroom left scope for the federal government and Parliament to restrict procedural equity on this context. The emphasis within the judgment was not on the basic character of citizenship and the necessity for it to solely be stripped in essentially the most egregious of circumstances and after a full and simply course of. As an alternative, it rested on the truth that the statute does ‘not expressly present that there needs to be no proper to make representations’, and nor does it ‘accomplish that by implication both’ [para 27]. What hangs within the air is the implication that if Parliament needed to empower the Residence Secretary to ignore some facets of procedural equity, it might.

Given the rising hostility to migrants (and to some naturalised and British-born residents too), it’s not troublesome to think about this Parliament or the following passing laws that provides the Residence Secretary such an influence. And even earlier than that, if the federal government decides to problem the Courtroom of Attraction’s choice in Kolicaj, the Supreme Courtroom’s monitor file in circumstances like Begum v SIAC means it’s not troublesome to think about the Justices siding with the Residence Secretary. The Rochdale grooming gangs are again within the information, and there may be little to recommend that Starmer’s authorities is principled sufficient to refuse to take the simple win. What concern are the rights of undesirable nationals when set in opposition to a quick enhance within the polls? In Pham, Lord Mance noticed that ‘the standing of citizenship is as basic within the widespread regulation as it’s in European and worldwide regulation’ and Girl Arden characterised it because the ‘proper to produce other rights’. If this authorities continues on the trajectory of its predecessor, the query can be if the Supreme Courtroom is prepared to place its cash the place its mouth was.

My due to Michael Gordon and Paul Scott for his or her worthwhile feedback and corrections. Any errors are mine alone.

Nicholas Reed Langen writes on constitutional and authorized affairs, is a 2022 re:structure fellow and edits the LSE Public Coverage Assessment.

(Advised quotation: N. Reed Langen, ‘The Use and Abuse of Citizenship Deprivation: SSHD v Kolicaj’, U.Okay. Const. L. Weblog (sixth February 2025) (obtainable at https://ukconstitutionallaw.org/))