Hysaj & Ors, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

Two individuals, referred to here as Appellant 1 and Appellant 2, entered the United Kingdom from Albania in the late 1990s. Each claimed asylum using false biographical details that included fabricated dates and places of birth and a counterfeit Kosovan nationality. Both ultimately obtained Indefinite Leave to Remain (“ILR”) on the basis of those misrepresentations and later applied for, and were granted, British citizenship through naturalisation under section 6(1) of the British Nationality Act 1981 (“the 1981 Act”), again using the same false particulars.

When the frauds were uncovered, the Respondent (the Secretary of State for the Home Department) treated the grants of citizenship as nullities, concluding that the appellants had never been British citizens and had only ever held ILR. That conclusion relied on then-binding Court of Appeal authority. Judicial review challenges brought by the appellants were dismissed in both the High Court and the Court of Appeal. The Supreme Court granted permission to appeal.

After permission was granted, the Respondent reassessed the legal position and applied under rule 34(2) of the Supreme Court Rules 2009 for the appeals to be allowed by consent. The Court agreed to dispose of the case on that basis but issued the present judgment to explain the reasons and their impact on a point of law of general public importance.

Legal Issues Presented

1. Whether serious misrepresentations as to identity in an application for naturalisation render the resulting grant of British citizenship a nullity (with the consequence that the person was never a citizen), or
2. Whether, notwithstanding such misrepresentations, the grant remains legally effective unless and until the individual is deprived of citizenship under sections 40 and 40A of the 1981 Act.

Arguments of the Parties

Respondent's Arguments

• Only the scenario considered in the Court of Appeal decision in R v Secretary of State for the Home Department, Ex p Sultan Mahmood—where X impersonates a real person Y who never applied for, and may not even want, citizenship—produces a genuine “nullity.”
• Subsequent cases (Ex p Parvaz Akhtar and Bibi v Entry Clearance Officer, Dhaka) wrongly expanded the nullity doctrine to situations where the applicant merely assumed a fabricated identity or used that fabricated identity to meet statutory requirements.
• In instances like the present appeals, the applicants themselves met the statutory criteria for naturalisation—albeit fraudulently—and were expressly considered by the Respondent. Their citizenship is therefore valid unless deprivation proceedings are commenced under section 40 of the 1981 Act.
• The existing “nullity” approach created uncertainty, illogical outcomes for derivative citizenship claims (spouses and children) and practical difficulties in administration. Restoring the law to the narrower Mahmood principle resolves those problems.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court agreed with the Respondent’s reassessment. It held that the earlier extension of the nullity doctrine went beyond what the statute and basic principles of legal certainty permit. The Court drew a sharp distinction between:

• Mahmood-type cases: impersonation of an existing individual; no valid grant because the Secretary of State intended to confer citizenship on someone else entirely.
• All other identity-based frauds where the applicant, albeit using false particulars, is the person actually considered and granted citizenship.

In the latter category—into which both appellants fall—the statutory mechanism for addressing fraud is deprivation under section 40, accompanied by a right of appeal under section 40A. Treating such grants as nullities undermines statutory safeguards, creates uncertainty for derivative citizens, and produces inconsistent outcomes. Accordingly, the Court overruled Akhtar and Bibi, reaffirmed Ejaz, and concluded that the appellants’ citizenship remains valid unless and until lawfully deprived.

Holding and Implications

APPEALS ALLOWED; the Court of Appeal orders are set aside and the Respondent’s decisions declaring the appellants’ citizenships nullities are withdrawn.

Implications: The decision confines the “nullity” concept to the narrow circumstances identified in Mahmood. Fraudulent misrepresentations by an applicant otherwise considered and approved by the Secretary of State no longer invalidate citizenship ab initio. Instead, the Respondent must use section 40 deprivation procedures, preserving legal certainty for citizens and their families. The ruling overrules two Court of Appeal authorities and clarifies the correct statutory pathway for addressing fraud in naturalisation.