Kolicaj: Fairness in section 40(2) deprivation requires a real opportunity to make merits-based representations even under the “notice-and-order” practice

Introduction

In Secretary of State for the Home Department v Kolicaj [2025] EWCA Civ 10, the Court of Appeal (Underhill VP, Dingemans and Edis LJJ) addressed a structural question about fairness in the Home Secretary’s current approach to depriving naturalised citizens of British citizenship under section 40(2) of the British Nationality Act 1981 (deprivation “conducive to the public good”). The case arose from a deprivation decision taken against Mr Gjelosh Kolicaj, an Albanian/British dual national convicted in 2018 of leading roles in serious organised money laundering.

The appeal came to the Court after the Upper Tribunal (Immigration and Asylum Chamber) allowed Mr Kolicaj’s appeal from the First-tier Tribunal, quashing the deprivation. The Court was asked to determine:

Whether the Upper Tribunal erred in finding that the Secretary of State failed to appreciate and exercise her discretion under section 40(2); and
Whether the process was procedurally unfair because Mr Kolicaj had no opportunity to make representations before the deprivation order was made (and, in practice, none afterwards either), particularly in light of the Home Office’s “post‑Rochdale” practice of serving the decision notice minutes before making the order.

The case thus sits at the intersection of: (i) section 40’s statutory structure, (ii) the Home Office’s more recent operational practice designed to avert last‑minute renunciation and statelessness, and (iii) the Supreme Court’s decision in Begum restricting appeals to the FTT in section 40(2) cases to public law review, thereby limiting any “appellate cure” for a lack of representations at first instance.

Summary of the Judgment

The Court of Appeal dismissed the Home Secretary’s appeal and upheld the quashing of the deprivation order. It did so principally on the ground of procedural unfairness: the Secretary of State deprived Mr Kolicaj of citizenship without affording him any opportunity to make merits-based representations at any stage, and the limited scope of an appeal after Begum meant that the appellate process could not fill that gap.

While the Court disagreed with the Upper Tribunal’s conclusion that the Secretary of State had failed to exercise her discretion (Edis LJ considered there was evidence of an exercise of discretion, especially via the section 55 children’s interests analysis), that would not change the outcome. The deprivation order had to be quashed for unfairness.

Crucially, the Court recognised that the Home Office’s post‑Rochdale “notice-and-order” practice (serving the section 40(5) decision notice minutes before making the order to prevent pre-order renunciation and statelessness) may be legitimate in section 40(2) cases; but fairness requires the Secretary of State, when serving the notice/order on that basis, to offer a merits-based review on receipt of representations and evidence from the individual. The failure to do so rendered the process unlawful.

Key Holding (New Principle)

“I accept that in the circumstances which arise in section 40(2) cases it is legitimate to operate a system in which the Secretary of State informs the person affected of the decision only after it is made because of the risk of renunciation of the other nationality. However, in the absence of a full appeal on the merits to the FTT, she should also say at that time that she is willing to review her decision by conducting a merits based evaluation in the light [of] any representations or evidence which that person supplies... It is not enough to say that the appeal rights conferred by section 40A remedy the lack of a chance to make representations...” (Edis LJ, para 29)

Background and Procedural History

Mr Kolicaj, a naturalised British citizen since 2009, pleaded guilty in 2018 to conspiracy to remove criminal property, receiving a 6-year sentence (discounted from 8 years). The National Crime Agency assessed him as posing an ongoing risk and recommended deprivation under section 40(2), to be followed by deportation. On 22 January 2021, while in prison, he was served with a section 40(5) notice (half an hour before the order) and then the deprivation order itself, with no prior invitation to, or opportunity for, representations.

The First-tier Tribunal dismissed his appeal. The Upper Tribunal allowed it, principally holding that the Secretary of State had failed to exercise her discretion under section 40(2). The Secretary of State appealed to the Court of Appeal.

Another strand of the case involved an internal ministerial submission by Fiona Johnstone (13 May 2020), accepted by the Secretary of State, which encouraged deploying deprivation for serious organised crime in “the most serious and high profile cases.” The Court noted this refinement of the published Nationality Instructions but did not need to determine any “unpublished policy” ground because the procedural unfairness point disposes of the appeal.

Analysis

1) Statutory framework and the “post‑Rochdale” procedure

Section 40(2): The Secretary of State may deprive a person of citizenship if satisfied it is “conducive to the public good.”
Section 40(4): Prohibits deprivation if it would make the person stateless (subject to 40(4A), not relevant here).
Section 40(5): Requires written notice of the decision to make an order, the reasons, and the right of appeal, before the order is made.
Section 40A: Confers a right of appeal to the FTT.

Historically, the Home Office served the notice, allowed time for an appeal, and then made the order if appeal rights were exhausted. But after cases arising from grooming in Rochdale revealed that a person might renounce their other nationality to engage section 40(4), the Home Office shifted to a different practice in section 40(2) cases: serving the notice and making the order minutes later, preventing renunciation in the interim. The Court was told this practice was applied universally to section 40(2) cases, regardless of whether renunciation was practically possible in the other country’s law, and that the practice was not written down.

The Court accepted that the “notice-and-order” practice can be legitimate to preserve the effectiveness of section 40(2); but fairness must still be secured by offering a post-decision merits review when the notice/order is served.

2) Precedents cited and how they shaped the decision

Bank Mellat v HM Treasury (No 2) [2014] AC 700:
Reaffirmed the general rule of procedural fairness: a person foreseeably significantly adversely affected should normally be given an opportunity to make representations in advance, unless statute dispenses with it, or it is impossible, impractical, or pointless. Any such exception must be “very closely examined.” Edis LJ uses this as the platform for insisting that fairness is the baseline; the “notice-and-order” practice must therefore be assessed against that baseline.
R (Balajigari) v SSHD [2019] EWCA Civ 673:
Emphasised that post-decision representations are “usually insufficient”; fairness demands an opportunity to be heard at the “formative stage.” Edis LJ recognises that in section 40(2) cases the formative-stage opportunity can be displaced to prevent renunciation; but if displaced, it must be replaced with a meaningful post-decision merits review opportunity precisely because the FTT appeal (post‑Begum) is non‑merits.
R (Begum) v SIAC [2021] UKSC 7:
Limited section 40(2) appeals to public law review. That restriction is pivotal: it means the tribunal cannot consider new evidence and cannot re‑make the merits judgments. Begum therefore removes any argument that an appeal suffices to cure the lack of first‑instance representations. This point is central to the Court’s fairness analysis in Kolicaj.
Aziz v SSHD [2018] EWCA Civ 1854 and Laci v SSHD [2021] EWCA Civ 769:
Two key threads are drawn from these cases. First, deprivation (as distinct from deportation) has only a limited impact on Article 8, underscoring why human rights appeals do not fill the fairness gap. Second, Laci documents the former, more participatory practice (multiple invitations to make representations) — a stark contrast with the current approach experienced by Mr Kolicaj.
Pham v SSHD [2018] EWCA Civ 2064:
Risk of future harm is not a pre‑condition to using section 40(2), but it can be relevant to the exercise of discretion. This illustrates the kind of merits‑based points an affected person might wish to raise — but cannot raise before the FTT post‑Begum unless they were put before the Secretary of State.
Hassan (UT) and D5, D6 and D7:
The Upper Tribunal cases were noted; Hassan had found error where no opportunity to comment was afforded. The Court of Appeal did not need to engage with those decisions in detail.

3) The Court’s legal reasoning

a) Fairness and section 40(5)

Section 40(5) embodies Parliament’s high valuation of procedural fairness by requiring a notice, reasons and a pre‑order appeal. The statute does not expressly or impliedly displace the duty to afford a fair chance to make representations (para 27). The Home Secretary’s argument that any pre‑decision opportunity would be “impossible, impractical or pointless” because it would permit renunciation was closely examined and partially accepted — but only to the extent of justifying a post‑decision mechanism that offers something functionally equivalent to a merits‑based chance to be heard (para 29).

The Court therefore articulated a two‑part approach for section 40(2) cases:

It is legitimate to serve the notice and make the order in close succession to prevent renunciation (thus preserving the efficacy of the power and compliance with section 40(4)); but
Fairness requires the Secretary of State simultaneously to offer a merits‑based review in light of any representations and evidence thereafter supplied by the affected person (because the section 40A appeal is confined to public law grounds and does not permit new material).

On the facts, the Notice said nothing about any opportunity to make representations, and none existed in practice. Indeed, internal annexes suggested that representations would be invited and “carefully considered,” but the process adopted did not implement that assurance. The deprivation order was thus procedurally unfair and had to be quashed (paras 29–31).

b) Discretion under section 40(2)

The Upper Tribunal had quashed the decision on the basis that the Secretary of State failed to appreciate and exercise her discretion, moving straight from “seriousness of offending” to deprivation. The Court of Appeal took a different view:

The record showed that the officials and the Secretary of State understood a discretion existed; annexes addressed discretionary matters (Convention compatibility, section 55 children’s interests), and the Notice itself discussed section 55 (paras 37–39).
While the notice was “not well‑drafted” and ought preferably to have explained the discrete exercise of discretion, there was evidence that discretion was exercised (para 39). Edis LJ would have allowed the Secretary of State’s appeal on that discrete ground (para 40), although this did not alter the outcome given the fairness breach.

4) Impact and forward look

The judgment has immediate operational and legal consequences:

Home Office practice must change: The Court described it as “surprising” that the post‑Rochdale practice was unwritten and that no thought had been given to fairness. That “needs to be remedied forthwith” (Underhill LJ, para 43; Edis LJ, para 31).
Built‑in merits review: Where the Home Office uses a “notice-and-order” approach in section 40(2) cases, fairness requires an express, genuine opportunity for the affected person to put forward representations and evidence for a merits-based reconsideration of the deprivation decision, notwithstanding the order having been made.
Limited role for appeals: Because of Begum, the FTT cannot cure a lack of first‑instance fairness by receiving new merits evidence (save on human rights grounds, which have limited purchase in deprivation as distinct from deportation). Processes must therefore be fair at source.
Case-by-case sensitivity: Edis LJ accepted the logic of preventing renunciation in section 40(2) cases, but nothing in the judgment endorses applying the “notice-and-order” approach indiscriminately where renunciation is legally or practically impossible abroad. At minimum, those administering the policy must think about fairness and record the fairness safeguards offered.
Past decisions vulnerability: Deprivations made under the same practice, without any opportunity to make merits-based representations, may be vulnerable to challenge for procedural unfairness, although outcomes will be fact‑sensitive.

Complex Concepts Simplified

“Conducive to the public good” (section 40(2)): A broad standard allowing deprivation where the Secretary of State is satisfied that removing citizenship serves the public interest (e.g., terrorism, espionage, serious organised crime). It is the threshold or “condition precedent” to using the power.
Two‑stage decision in section 40(2):
Stage 1: Decide if deprivation would be conducive to the public good.
Stage 2: If so, exercise discretion by weighing relevant considerations (e.g., children’s best interests, risk of reoffending, proportionality) to decide whether to deprive in the particular case.
Statelessness bar (section 40(4)): The Secretary of State cannot deprive if doing so would make the person stateless (with a narrow exception in section 40(4A) not in play here). The “notice-and-order” practice aims to prevent the person from renouncing their other nationality before the order, thereby avoiding the bar.
Appeal scope after Begum: Appeals to the FTT in section 40(2) cases are on public law grounds only. The tribunal reviews the reasonableness/lawfulness of the decision based on the material before the Secretary of State. New merits evidence cannot generally be introduced (except in separate human rights appeals, which are limited in pure deprivation cases).
Procedural fairness: A common law requirement that a person significantly affected by a decision usually gets a chance to make representations before the decision is made. Exceptions must be justified (e.g., to prevent renunciation), but fairness must be preserved overall — here, by offering a prompt merits-based review opportunity when serving the notice/order.
Section 55 duty (Borders, Citizenship and Immigration Act 2009): The Secretary of State must have regard to the need to safeguard and promote the welfare of children in the UK. In deprivation cases, this typically features in the discretionary stage and may be the most important personal factor aside from the seriousness of offending.

Practical Implications for Stakeholders

For the Home Office

Reduce the post‑Rochdale practice to clear written policy, with explicit fairness safeguards.
When using “notice-and-order,” include with the notice an immediate and explicit invitation to submit representations and evidence for a merits-based review of the decision, with a clear mechanism and timescale for that review.
Avoid template language implying a right to make representations unless it genuinely exists; align internal annexes and the notice to the actual process.
Consider whether a blanket application of “notice-and-order” to all section 40(2) cases is necessary where renunciation is not realistically possible; document the reasoning either way.

For individuals and practitioners

If served with a section 40(5) notice and a deprivation order without any invitation to make representations, consider procedural unfairness challenges promptly.
Request disclosure of the decision pack (ministerial submission and annexes) and any relevant policy relied upon, including any refinements about “serious and high-profile” thresholds.
Prepare merits materials that would have been placed before the Secretary of State if a fair process existed (e.g., evidence on risk of re‑offending, the precise gravity/profile of the offending, section 55 children’s interests, proportionality), and insist on a merits‑based review.
Note that an Article 8 route will often be limited in pure deprivation cases; fairness arguments may carry more practical weight post‑Begum.

Conclusion

Kolicaj is a pivotal procedural fairness decision in the deprivation of citizenship landscape. The Court accepts that, to neutralise the statelessness bar, the Home Secretary may serve the section 40(5) notice and make the section 40(2) order in close succession. But that operational necessity does not extinguish fairness. Because post‑Begum appeals cannot repair unfairness by admitting new merits evidence, the Secretary of State must, when adopting the “notice‑and‑order” approach, also offer a genuine, prompt, merits‑based review on receipt of representations and evidence from the affected person.

On the discrete issue of discretion, the Court disagreed with the UT’s reasoning and found there was evidence that discretion was exercised (albeit not elegantly articulated). Nonetheless, the failure to offer any opportunity to make representations meant the process was unfair and the order unlawful. The result is both a rebuke to an unwritten practice that overlooked fairness and a roadmap for compliance: maintain the effectiveness of section 40(2), but build in a meaningful merits review opportunity. As Underhill LJ stressed, this requires immediate attention.