Fairness Through Statutory Appeal: The Merits-Based Nature of Deprivation of Citizenship Appeals in Secretary of State for the Home Department v Kolicaj [2025] UKSC 49

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1. Introduction

In Secretary of State for the Home Department v Kolicaj [2025] UKSC 49, the United Kingdom Supreme Court delivered a major judgment on the procedural fairness requirements governing deprivation of British citizenship under section 40 of the British Nationality Act 1981 (the “1981 Act”). The decision consolidates and extends the trilogy of Supreme Court authorities—Begum (No 1), N3 and U3—and, crucially, confirms that:

• Appeals to the First-tier Tribunal (the “FTT”) under section 40A of the 1981 Act are full appeals on the merits, not judicial review in disguise;
• Natural justice is satisfied through that statutory appeal, so there is no general duty on the Secretary of State to invite representations before deciding to deprive a person of citizenship;
• Unpublished internal policy on the use of deprivation powers may be unlawful if it remains undisclosed, but any initial unfairness can be cured if the policy is fully disclosed and contested on appeal;
• The FTT, SIAC and appellate courts have an incidental power to set aside deprivation decisions and orders, even though those orders are not “quashed” in the judicial review sense.

The case arose out of the decision of the Secretary of State to deprive Mr Gjelosh Kolicaj of his British citizenship on “conducive to the public good” grounds under section 40(2), following his conviction for serious organised money laundering. The central question was how fairness is achieved within the statutory deprivation regime and what role, if any, pre-decision participation and post-decision reconsideration have in that scheme.

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2. Background and Legislative Framework

2.1 The parties

• Appellant: Secretary of State for the Home Department (“SSH D”).
• Respondent: Mr Gjelosh Kolicaj, an Albanian-born man who became a naturalised British citizen in 2009, later convicted in 2018 of serious money laundering linked to organised crime.

2.2 The statutory powers and appeal rights

(a) Deprivation power – section 40 of the 1981 Act

Key features of section 40 (insofar as relevant in this case):

• Section 40(2): The Secretary of State may by order deprive a person of a citizenship status if she is satisfied that deprivation is “conducive to the public good”. The word “may” confers a discretion that arises only once the “conducive” precondition is satisfied.
• Section 40(4): Generally prohibits deprivation that would make a person stateless.
• Section 40(5): Before making an order, the Secretary of State must give written notice specifying:
  • That she has decided to make an order;
  • The reasons for the order; and
  • The person’s right of appeal under section 40A(1) or section 2B of the Special Immigration Appeals Commission Act 1997 (“the SIAC Act”).

(b) Appeals to the FTT – section 40A of the 1981 Act

• Section 40A(1): A person who receives notice of a decision to make a deprivation order may appeal against the decision to the FTT.
• Section 40A(2): Excludes such an appeal where the Secretary of State certifies that the decision relied on information that should not be made public on national security or certain public interest grounds. In that case, the appeal lies instead to SIAC under section 2B of the SIAC Act.

(c) Appeals to SIAC – section 2B of the SIAC Act 1997

Section 2B creates a right of appeal to SIAC where a section 40A appeal is barred by a national security/public interest certificate. SIAC’s jurisdiction is thus the counterpart of the FTT’s in cases involving sensitive material.

2.3 Factual background

(a) Conviction and offending

Between 2016 and 2018, Mr Kolicaj and his brother orchestrated a sophisticated money-laundering conspiracy to remove an estimated £8 million in criminal proceeds from the UK to Albania via multiple flights and couriers. Despite arrests and seizures, he continued offending. He was convicted, on a guilty plea, of conspiracy to remove criminal property contrary to section 327 of the Proceeds of Crime Act 2002 and sentenced to six years’ imprisonment, with the sentencing judge describing the offending as serious organised criminal activity with high culpability.

(b) Home Office policy and the May 2020 submission

The published Home Office Nationality Instructions, chapter 55 (“Deprivation and Nullity of British citizenship”), provided at paragraph 55.4.4 that deprivation as “conducive to the public good” encompassed involvement in terrorism, espionage, serious organised crime, war crimes or “unacceptable behaviours”.

In May 2020, a civil servant submitted a paper to the Secretary of State (“the May 2020 submission”) recommending that:

• Section 40(2) should be used against those guilty of serious organised crime;
• Its use should, however, be limited to the “most serious and high profile cases” and “highest harm offences”, especially serious organised crime involving violence, trafficking, organised drug importation and child sexual exploitation.

The Secretary of State accepted this recommendation. The Supreme Court holds this was a narrower, and therefore distinct, policy from the published guidance, although it was not at that time made public.

(c) The deprivation decision and immediate order

• On 19 October 2020, the National Crime Agency (NCA) recommended that the Secretary of State deprive Mr Kolicaj of his British citizenship and then deport him.
• A civil service submission dated 17 December 2020 (the “December 2020 submission”) invited the Secretary of State to use section 40(2), attaching: the NCA’s assessment (including a prediction of future risk), an analysis of statelessness, a Human Rights Act 1998 (“HRA”) assessment, a section 55 Borders, Citizenship and Immigration Act 2009 (“section 55”) child welfare assessment, and a draft notice under section 40(5).
• The submission stated that his case met the “highest harm offences” standard adopted in the May 2020 submission.

On 22 January 2021:

• The Secretary of State served a Notice of intention to deprive (the “Notice”), stating that deprivation was conducive to the public good, describing his offending as serious organised crime and asserting compliance with section 55 and the ECHR.
• About 30 minutes later, she served the Deprivation Order itself (the “Order”).

Serving the order almost immediately after the Notice was a deliberate policy, designed—after experiences in earlier cases—to prevent the individual from renouncing their other nationality in the interim, which would otherwise make them stateless and bar the exercise of section 40(2) by virtue of section 40(4). This practice was expressly upheld in N3.

(d) Proceedings in the tribunals and Court of Appeal

Mr Kolicaj appealed under section 40A to the FTT. During disclosure, the December 2020 submission and then the previously undisclosed May 2020 submission were made available, prompting arguments that:

• The Secretary of State had failed to follow or lawfully apply her policy;
• The process was procedurally unfair because no opportunity to make pre-decision representations was given;
• The decision relied on an unpublished “secret” policy, contrary to Lumba;
• The Secretary of State had not properly exercised the discretion under section 40(2).

In both the FTT and the Upper Tribunal, and then in the Court of Appeal, the case proceeded on a critical but erroneous shared assumption: that a section 40A appeal is confined to reviewing the Secretary of State’s decision on public law grounds and on the basis of the information before her on 22 January 2021. They treated the appeal as akin to judicial review rather than as a full merits appeal where new evidence could be admitted.

The FTT dismissed most challenges, but the Upper Tribunal allowed the appeal on the narrow ground that the Secretary of State had not separately considered the exercise of her discretion under section 40(2). The Court of Appeal disagreed on that point (finding the discretion had been exercised), but upheld the appeal on a different basis: that there was a “fairness gap” because neither pre-decision representations nor a truly merits-based statutory appeal were available. It therefore quashed the Notice and the Order.

The Secretary of State appealed to the Supreme Court; Mr Kolicaj cross‑appealed on several grounds, including an alleged unlawful “secret policy”.

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3. Summary of the Supreme Court’s Decision

Lord Sales (with whom Lord Reed, Lord Lloyd-Jones, Lord Briggs and Lord Stephens agreed) allowed the Secretary of State’s appeal and dismissed the cross‑appeal. The key holdings are:

• No duty to offer post-decision merits reconsideration (Issue 1): There is no requirement, as the Court of Appeal suggested, for the Secretary of State to offer to review the deprivation decision on the merits after serving the Notice/Order. Fairness is delivered instead by the right of appeal to the FTT (or SIAC), which is a substantive merits appeal.
• Nature of appeals under sections 40A and 2B:
  • An appeal under section 40A to the FTT is of the same fundamental nature as an appeal under section 2B to SIAC.
  • Both are appeals on the merits, not confined to judicial review grounds or to material before the Secretary of State at the time of the original decision.
  • The legal principles applied vary by issue (e.g. statelessness vs national security vs policy application), but the jurisdiction is always appellate, not supervisory.
  • The Secretary of State must treat the deprivation decision as kept under review during the appeal; the decision under challenge is the decision as maintained in light of new evidence and submissions.
• No duty to invite pre-decision representations (Issue 3): Properly read, sections 40 and 40A form an exhaustive procedural scheme that impliedly excludes any common law requirement to invite representations prior to making the deprivation decision. Bank Mellat’s fairness principle (pre-decision representations unless excluded or impossible/impractical/pointless) is satisfied by implication under limb (i): Parliament has “otherwise provided” via the statutory appeal.
• Unpublished policy and Lumba (Issue 4):
  • The May 2020 submission did amount to a narrower policy, not merely an explanation of existing guidance.
  • In principle, using such an unpublished policy may be unlawful under Lumba because fairness requires publication of policies that significantly guide detrimental discretionary decisions.
  • However, any initial unfairness was cured because, by the time of the FTT appeal, Mr Kolicaj knew of the policy, received disclosure of the reasoning and had a full opportunity to argue that his case fell outside the policy. The relevant question is fairness at the stage of the maintained decision considered on appeal.
• Discretion under section 40(2) properly exercised (Issue 5): The Supreme Court held that the Secretary of State had in fact exercised her discretion, separately from the “conducive to the public good” precondition. The December 2020 submission and the Notice showed conscious weighing of the public interest against the effect on his children and article 8 ECHR.
• FTT/SIAC and Court powers to set aside (Issue 2):
  • An allowed appeal under section 40A/2B is not judicial review; consequently, strictly speaking the order is not “quashed”.
  • Nonetheless, the tribunals and appellate courts have an incidental power to make orders setting aside the Secretary of State’s decision, the Notice and the Deprivation Order.
  • The Court of Appeal’s order quashing the Notice and Order was only terminologically inaccurate; substantively, similar relief was within its power (properly framed as “set aside”).
• Serious past offending alone can justify deprivation: Following Pham (No 2), the Court confirmed that the Secretary of State may conclude that deprivation is conducive to the public good in a case of very serious criminality even without demonstrating a risk of future offending.

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4. Precedents and Authorities Considered

4.1 Begum (No 1) [2021] UKSC 7; [2021] AC 765

Begum No 1 concerned an appeal to SIAC under section 2B against a deprivation decision based on national security grounds. Lord Reed established several foundational principles, carried through into N3, U3 and now Kolicaj:

• Section 2B confers a right of appeal, not a mere review.
• The appeal may involve questions of fact and law; SIAC has an appellate jurisdiction, not a purely supervisory one (paras 65, 69).
• However, the legal tests applied by SIAC vary by the nature of the issue (para 69):
  • On some issues (e.g. compatibility with ECHR rights), SIAC must make its own independent assessment (subject to any margin of discretion).
  • On others (e.g. whether the Secretary of State is “satisfied” that deprivation is conducive to the public good), SIAC applies public law principles (essentially Wednesbury reasonableness and related doctrines), due to constitutional deference to the executive on matters of national security and high policy.
• Where the challenge is to a factual precondition such as statelessness or fraud in obtaining nationality, SIAC makes its own findings of fact.
• Policy application: If the Secretary of State has a policy guiding deprivation decisions, SIAC reviews whether that policy has been followed, and whether the assessment of its application to the particular facts is rational (paras 118–124, 129–130).

Kolicaj builds directly on Begum’s framework, but applies it explicitly to appeals to the FTT and clarifies that the “public law” character of some tests does not transform the appeal into judicial review.

4.2 N3 v Secretary of State for the Home Department [2025] UKSC 6; [2025] 2 WLR 386

N3 focused on the issue of statelessness and the proper approach of SIAC and the Secretary of State to that issue. Its key contributions, now extended in Kolicaj, are:

• SIAC must make its own findings on whether a deprivation order makes a person stateless, based on the evidence adduced on appeal (paras 34–40, 48, 90).
• Section 40A (FTT appeals) and section 2B (SIAC appeals) confer fundamentally the same kind of appellate jurisdiction (paras 34–40, under the heading “The nature of an appeal to the First-tier Tribunal or to SIAC”).
• SIAC’s role is not to conduct judicial review of the Secretary of State’s decision at the time it was made, but to determine on the merits, on the evidence before it, whether the deprivation decision can stand (paras 34–38).
• If an appeal is allowed, the Secretary of State is bound by that decision; there is no separate “quashing” as in judicial review, but the deprivation decision cannot be treated as effective (paras 38–40, 48, 90, 92–93).

Kolicaj reiterates that these principles apply equally to FTT appeals and uses them to reject the Court of Appeal’s characterisation of section 40A appeals as mere public law review.

4.3 U3 v Secretary of State for the Home Department [2025] UKSC 19; [2025] 2 WLR 1041

U3 addressed the handling of new evidence emerging after a deprivation decision, particularly in relation to risk assessments in a national security context. Crucial holdings, now applied in Kolicaj, include:

• Appeals to SIAC under section 2B are “appeal in reality as well as in form” – full merits appeals, not equivalent to judicial review (para 43).
• SIAC may consider new evidence, including material not available to the Secretary of State at the time of the original decision (paras 44–45).
• The Secretary of State (usually via officials under the Carltona principle) must keep the deprivation decision under review during the appeal. If the decision is maintained in light of new evidence and submissions, it is that maintained decision which is under challenge (paras 20, 46–47).
• Different issues on appeal attract different legal principles—again emphasising the flexible, issue-specific nature of the appellate role (paras 50–68).

Kolicaj extends this reasoning explicitly to FTT appeals, rejecting the idea that they are confined to the state of affairs on the original decision date. This is central to the Supreme Court’s conclusion that there is no “fairness gap” that would justify inventing extra-statutory reconsideration duties.

4.4 Pham v Secretary of State for the Home Department (No 2) [2018] EWCA Civ 2064; [2019] 1 WLR 2070

In Pham No 2, Arden LJ (as she then was) held that, in the context of deprivation based on serious criminality, the Secretary of State is not required to establish a future risk of offending in order to conclude that deprivation is conducive to the public good: the gravity of past offending may suffice (paras 52–53).

The FTT and Upper Tribunal relied on this principle, and the Supreme Court in Kolicaj endorses it, noting that even if the March 2021 risk assessment had been admitted, the Secretary of State could properly decide to deprive solely on the basis of past serious organised crime.

4.5 Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700

Lord Neuberger’s formulation at para 179 (quoted via Balajigari) is central to the procedural fairness analysis. The principle is that:

• Before a statutory power is exercised, a person foreseeably significantly detrimentally affected should normally have an opportunity to make representations, unless:
  1. The statute expressly or impliedly provides otherwise; or
  2. Circumstances render it impossible, impractical or pointless to afford such an opportunity.

The Court of Appeal had applied this to require some form of merits reconsideration, because (on its view) the section 40A appeal was too narrow. The Supreme Court in Kolicaj holds that limb (i) is satisfied: properly interpreted, sections 40 and 40A impliedly provide the alternative—a full merits appeal—and thus there is no additional common law requirement for pre-decision representations or post-decision reconsideration outside the appeal process.

4.6 R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245

Lumba is the leading authority on “secret policies”. Lord Dyson held that:

• Where the executive adopts a policy guiding the exercise of discretionary powers, particularly those which can detrimentally affect individuals (e.g. detention), fairness generally requires publication of that policy;
• The policy must be sufficiently disclosed so that an affected person can make “informed and meaningful representations” before a decision is made (para 38);
• Applying an unpublished policy may be unlawful.

In Kolicaj, the Supreme Court accepts that the May 2020 submission constitutes a new or refined policy and that Lumba applies in principle. However, because the policy was disclosed in time for a full challenge on appeal, the earlier non-publication did not ultimately render the maintained decision unlawful.

4.7 Other authorities

• Secretary of State for Education and Science v Tameside MBC [1977] AC 1014: Cited below the Supreme Court stage in support of a duty on the Secretary of State to investigate relevant matters (e.g. risk of re-offending). The Supreme Court notes that this “Tameside duty” analysis was misdirected once one appreciates that the appeal is a full merits process where new evidence can be adduced.
• Begum v SSHD [2024] EWCA Civ 152; [2024] 1 WLR 4269: The Court of Appeal there held, in national security cases with appeals to SIAC, that section 40(5) and section 2B together comprise an exhaustive procedure impliedly excluding any pre-decision right to make representations. The Supreme Court in Kolicaj endorses that analysis and extends the same reasoning to FTT appeals under section 40A.
• Attorney General v Great Eastern Railway Co (1880) 5 App Cas 473: Cited for the principle that bodies with statutory jurisdiction possess ancillary or incidental powers reasonably necessary to give effective relief. This supports the conclusion that FTT, SIAC and appellate courts may formally set aside notices and orders.
• Carltona Ltd v Commissioners of Works [1943] 2 All ER 560: The classic authority that decisions formally vested in a Secretary of State can be taken by officials in her department. Used in U3 and applied here to explain how the deprivation decision is kept under review during an appeal.
• R (Shvidler) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2025] 3 WLR 346: Cited in passing in relation to proportionality analysis in Convention rights cases; reinforces that in human rights issues the appellate body makes its own substantive determination.

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5. The Court’s Legal Reasoning

5.1 Issue 1 – Was the Secretary of State obliged to offer to reconsider her decision on the merits?

The Court of Appeal held that there was a procedural “gap”: because the Secretary of State gave no opportunity for pre‑decision representations and (on its understanding) the section 40A appeal was limited to public law grounds based on the original material, fairness required the Secretary of State to offer a post-decision merits reconsideration.

The Supreme Court rejects this proposition. Its reasoning can be broken down as follows:

1. Nature of the appeal: Drawing on Begum No 1, N3 and U3, the Court explains that:
   • A section 40A appeal is an appeal on the merits, not a judicial review;
   • The FTT (like SIAC) may consider new evidence and new arguments that were not before the Secretary of State when she made her original decision;
   • The decision under challenge is the current, maintained decision, having been reconsidered by the Secretary of State in light of the appeal materials.
2. No “fairness gap”: Once this is understood, there is no gap: an appellant can adduce all relevant evidence (including post‑decision material such as the March 2021 risk assessment), make full representations, and challenge the application of policy and the exercise of discretion.
3. No basis for extra-statutory reconsideration duty: Because the statutory appeal already provides a comprehensive and fair mechanism, there is no justification for the court to superimpose an extra duty on the Secretary of State to offer a merits-based reconsideration outside the appeal structure.

The result: the Secretary of State’s practice of serving the Deprivation Order almost immediately after the Notice, to avoid the risk of renunciation of foreign nationality, does not render the process unfair provided that the person retains their full rights on appeal.

5.2 Issue 2 – Did the Court of Appeal err in quashing the Notice and Order?

The Secretary of State argued that the FTT, the Upper Tribunal and the Court of Appeal had no power to “quash” the Notice and the Order, because an appeal is an appellate process distinct from judicial review quashing orders.

The Supreme Court makes two clarifying points:

• Substantive effect of an allowed appeal: Under section 40A/2B, an allowed appeal means the deprivation decision cannot stand; the Secretary of State is bound, and the Deprivation Order ceases to have legal effect (notwithstanding some statutory complications after the Deprivation of Citizenship Orders (Effect during Appeal) Act 2025).
• Incidental power to set aside: By ordinary principles of statutory interpretation (as in Great Eastern Railway), tribunals and courts exercising appellate jurisdiction possess all powers reasonably incidental to that jurisdiction. This includes the power to:
  • Set aside the Secretary of State’s deprivation decision;
  • Set aside the section 40(5) Notice; and
  • Set aside the Deprivation Order made in consequence.

Therefore, although “quash” is not technically the correct terminology (belonging to judicial review), the Court of Appeal was entitled in substance to make an order setting aside the Notice and Order, and courts and tribunals are encouraged to do so explicitly for clarity.

5.3 Issue 3 – Was the Secretary of State obliged to investigate or prove a real risk of renunciation of Albanian citizenship before denying pre-decision representations?

On the cross‑appeal, Mr Kolicaj argued that the Secretary of State could only omit to offer pre-decision representations if there was a demonstrated real risk that he might renounce his Albanian nationality. He said there was no evidence that Albanian law permitted swift renunciation, and no inquiry had been made.

The Supreme Court’s response is structural and statutory:

• Applying Bank Mellat, limb (i), the question is whether the statute expressly or impliedly
• Sections 40 and 40A provide a detailed procedural regime:
  • The Secretary of State must give notice that she “has decided” to make an order, with reasons and a right of appeal based on that decision;
  • The focus is on giving reasons after the decision, not consulting beforehand.
• The appeal, properly understood, is a merits appeal capable of addressing all fairness concerns.

In light of this, Parliament must be taken to have impliedly excluded any obligation to seek pre‑decision representations. Requiring the Secretary of State to investigate foreign nationality law in each case to gauge renunciation risk before deciding whether to offer pre‑decision participation would:

• Be contrary to the statutory design; and
• Undermine the regime’s capacity for “swift and decisive action” in the public interest (as recognised in N3, para 60).

Since limb (i) of Bank Mellat is satisfied, there is no need to consider limb (ii) (impossibility, impracticability or pointlessness), and the cross-appeal on this issue fails.

5.4 Issue 4 – Was the deprivation decision unlawful because it applied a “secret policy”?

The Supreme Court recognises that:

• The May 2020 submission did articulate a distinct, narrower policy than the published Nationality Instructions;
• Under Lumba, fairness generally requires such a policy to be published so that affected persons can make meaningful representations.

However, the Court’s analysis is nuanced and focuses on the timing and role of the appeal:

1. Initial unlawfulness in principle: If a deprivation decision is made by applying an unpublished narrowing of policy, and the person remains unaware of it, that is in principle unlawful under Lumba because they cannot address whether they fall within or outside the policy.
2. Curing through the appeal: In this case:
   • The May 2020 policy was disclosed during the FTT appeal;
   • The Secretary of State’s reliance on it and her reasons were fully explained;
   • Mr Kolicaj had an opportunity to argue, with knowledge of the policy, that his case did not satisfy the “most serious and high profile”/“highest harm” threshold.
3. Focus on the maintained decision: Because an appeal is an opportunity to challenge the decision as maintained in light of all disclosure and submissions, the question is whether, at that stage, there is any unfairness. There was none: by the time the FTT considered the case, the policy was fully in the open and contestable.

Accordingly, although the Court criticises the failure to refer to the May 2020 policy in the original Notice and acknowledges the potential for unfairness if no appeal were brought, it holds that no unfairness remained affecting the maintained decision on appeal, so the deprivation decision was not unlawful on this ground.

5.5 Issue 5 – Did the Secretary of State fail to exercise her discretion under section 40(2)?

The Upper Tribunal had held that the Secretary of State:

• Identified that deprivation would be conducive to the public good (satisfying the precondition), but
• Failed to carry out a separate discretionary judgment whether she should exercise the section 40(2) power in the particular case.

The Supreme Court disagrees. It holds that both the December 2020 submission and the Notice demonstrate that the Secretary of State:

• Considered the gravity of the organised crime offending and the public interest in deprivation and deportation;
• Considered the potential impact on his British children under section 55 and article 8 ECHR;
• Weighed these factors and concluded that the public interest “clearly outweighs” the children’s interests in their father remaining a British citizen.

Those materials show a conscious weighing exercise that is distinct from simply being satisfied that deprivation is conducive to the public good. The Court of Appeal was therefore correct to overturn the Upper Tribunal’s finding on this issue, and the Supreme Court upholds that conclusion.

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6. Impact and Future Significance

6.1 Clarifying the nature and scope of section 40A appeals

The most significant doctrinal effect of Kolicaj is to settle the proper understanding of appeals under section 40A (FTT) and to align them with section 2B (SIAC) appeals:

• They are substantive appeals on the merits, not merely reviews on traditional judicial review grounds.
• New evidence, including post-decision material, is admissible.
• The FTT is entitled, and required, to consider the decision as maintained in light of such material, not frozen as at the original decision date.
• Different aspects of the decision (e.g. statelessness, fraud, risk assessments, policy application, human rights) attract different legal standards, some akin to public law review, others involving de novo fact-finding and proportionality analysis.

This expressly disapproves the restrictive approaches seen in:

• Ciceri (UT) and Chimi (UT), which had treated section 40A appeals as limited to judicial review-type scrutiny of the original decision; and
• The Court of Appeal judgment in this case, which adopted the same mistaken view and thereby created the supposed “fairness gap”.

6.2 Fairness is delivered by the statutory appeal, not by additional common law procedures

By confirming that:

• There is no right to pre-decision representations; and
• There is no duty on the Secretary of State to offer post-decision merits reconsideration outside the appeal process;

the Supreme Court firmly anchors fairness in the structure of the statutory appeal. This:

• Provides legal certainty for the Home Office’s current practice of issuing deprivation orders immediately after the Notice to forestall renunciation of other nationality;
• Limits the potential for litigation seeking to graft additional procedural steps onto the statutory scheme; and
• Places primary responsibility for correcting errors and ensuring fairness on the FTT (and SIAC), which must now fully embrace its merits jurisdiction.

6.3 Implications for unpublished policies

The judgment:

• Reaffirms the Lumba principle that unpublished, narrowing policies guiding serious, detrimental decisions are in principle unlawful;
• But simultaneously indicates that where the policy is disclosed during an appeal and the appellant can fully challenge its application, the prior non-publication may be cured.

Practically, this:

• Pressures the Secretary of State to ensure that deprivation policies (especially refinements like the May 2020 “highest harm” criterion) are publicly promulgated;
• Yet reassures that inadvertent non-publication will not automatically vitiate every decision if the policy is later disclosed and effectively challenged in the appellate process.

6.4 Confirmation that serious past offending can justify deprivation without future risk

By endorsing Pham No 2, the Supreme Court confirms that very serious criminal offending alone may justify deprivation as conducive to the public good. This has important substantive consequences:

• It distinguishes deprivation from some deportation contexts, where future risk is often central.
• It broadens the potential use of section 40(2) in serious organised crime cases, even where rehabilitation evidence or risk assessments later suggest a low future risk.

6.5 Tribunal and court orders: moving beyond “quashing” language

The Court’s clarification that:

• Appeals under sections 40A/2B are not judicial review; but
• Tribunals and appellate courts nonetheless have an incidental power to set aside deprivation decisions, notices and orders;

will likely influence how future orders are drafted in deprivation appeals, encouraging precise language that clearly spells out:

• Whether the decision to deprive has been set aside;
• Whether the Deprivation Order is treated as having no effect; and
• How this interacts with any statutory provisions governing when deprivation is treated as effective (notably following the 2025 Act).

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7. Complex Concepts Simplified

7.1 “Appeal on the merits” vs “judicial review”

• Judicial review: The court typically does not re‑decide the case. It asks whether the decision was lawful—procedurally fair, rational, within powers, and compatible with human rights—on the material before the original decision-maker.
• Appeal on the merits: The appellate body can review facts and law, admit new evidence, and (depending on the issue) reach its own conclusion about what the correct outcome should be, though sometimes applying public law standards to particular aspects (e.g. deference on national security risk assessments).

In deprivation cases, section 40A and section 2B confer this broader “merits” jurisdiction, even though on some questions (like the Secretary of State’s national security judgment) the applicable legal test resembles judicial review.

7.2 Natural justice and procedural fairness

“Natural justice” or “procedural fairness” is the idea that decisions that seriously affect rights and interests should be made using a fair process. Core elements include:

• Being informed of the case against you;
• Having an opportunity to respond; and
• Having decisions made by an unbiased decision-maker.

In this case, the Supreme Court says fairness is satisfied not by a pre‑decision hearing before the Secretary of State, but by:

• The requirement to give reasons and inform the individual of their appeal rights (section 40(5)); and
• The availability of a substantive appeal where the person can fully challenge both facts and law.

7.3 The “Tameside duty”

From Tameside, a public authority must take reasonable steps to inform itself of relevant facts before making a decision. It can be unlawful to decide on incomplete or misunderstood information if proper inquiries would have revealed the true position.

In Kolicaj, some lower tribunals and counsel tried to apply this to argue that the Secretary of State should have:

• Obtained a Probation Service risk assessment before deciding;
• Investigated Albanian law on renunciation.

The Supreme Court essentially responds that once one appreciates the merits appeal function (where new evidence can be adduced and considered), it is not necessary to police the Secretary of State’s prior inquiries with Tameside-style intensity for fairness to be achieved.

7.4 “Secret policy” and Lumba

A “secret policy” problem arises where:

• A public authority publicly announces one policy but in practice operates another more restrictive (or just different) policy that is not disclosed;
• Decisions are made by reference to that unpublished policy;
• Affected individuals cannot tailor their representations or legal arguments because they do not know the real rules being applied.

Lumba says that is usually unlawful. In Kolicaj:

• The May 2020 “highest harm” refinement was not published when the deprivation decision was taken;
• However, it became known during the appeal, and the Secretary of State’s actual reasons were laid bare.

Thus, while the Court acknowledges the defect, it holds that because Mr Kolicaj ultimately had the chance to contest the policy’s application on appeal, fairness was not compromised in a way justifying setting aside the maintained decision.

7.5 Statelessness

Section 40(4) of the 1981 Act generally prohibits making a person stateless through deprivation. However:

• The Secretary of State may deprive where a person has—or can acquire—another nationality (subject to statutory exceptions such as section 40(4A)).
• Renunciation of other nationality after receiving a notice can, in some circumstances, remove the Secretary of State’s power to deprive.

This explains the practice of serving the order very soon after the notice, to lock in the person’s existing foreign nationality before any renunciation, a practice the Supreme Court accepts as legitimate within the statutory scheme.

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8. Conclusion

Secretary of State v Kolicaj is a pivotal judgment in the UK’s deprivation of citizenship jurisprudence. It does not radically change the law so much as it clarifies and consolidates it in four crucial ways:

1. It confirms that appeals under section 40A to the FTT are full merits appeals, just like section 2B appeals to SIAC, capable of considering new evidence and involving issue‑specific legal standards, including—but not limited to—public law review tests.
2. It holds that procedural fairness is achieved by this statutory appeal, meaning there is no general right to pre-decision representations and no duty on the Secretary of State to offer a separate post-decision merits reconsideration, even where deprivation orders are served almost immediately after notice.
3. It re‑affirms the Lumba requirement for publication of policies guiding deprivation decisions, but makes clear that where an unpublished policy is later fully disclosed and contested in the appeal, the initial non‑publication may not invalidate the final, maintained decision.
4. It clarifies that FTT, SIAC and appellate courts possess an incidental power to set aside deprivation decisions, notices and orders, even though their jurisdiction is not judicial review and the technical language of “quashing” is inapt.

Together with Begum No 1, N3 and U3, this decision provides a coherent and integrated framework for understanding how deprivation of citizenship decisions should be made, challenged, and remedied. It underscores Parliament’s intention to route fairness primarily through a robust statutory appeal process rather than through additional common law procedural entitlements. For practitioners, it demands a shift in focus from attacking the original decision as at the date it was made, to exploiting the full evidential and argumentative scope of the appellate process in the FTT or SIAC.