KV, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant was born in 1973 in Sri Lanka and arrived in the United Kingdom in 1994 claiming asylum. His initial asylum claim was refused but later allowed on appeal. He was convicted of conspiracy to defraud in 1998 but was granted indefinite leave to remain in the UK as a refugee in 1999. The Appellant applied for and was granted British citizenship in 2007. However, it was later discovered that he had previously applied for indefinite leave to remain and British citizenship using the identity of another individual, which was not disclosed in his 2007 application.

Following this discovery, the Home Office notified the Appellant that his earlier citizenship grant was null and that it intended to deprive him of his British citizenship granted in 2007 on the ground of fraud. The Appellant was informed that he would be granted discretionary leave to remain in the UK for 30 months following any deprivation order.

The Appellant appealed the deprivation decision to the First-tier Tribunal, which dismissed the appeal without addressing the issue of statelessness. The Appellant then appealed to the Upper Tribunal, which acknowledged the First-tier Tribunal's error in not considering statelessness but held that the Appellant had the burden of proving statelessness and had failed to do so. Permission to appeal to the Court of Appeal was subsequently granted.

Legal Issues Presented

1. The significance of deprivation of citizenship resulting in statelessness and the relevance of the person’s ability to become a national of another country in exercising the power under section 40(3) of the British Nationality Act 1981.
2. Who bears the burden of proof in establishing relevant facts, specifically the burden of proving statelessness in the context of deprivation of citizenship obtained by fraud.

Arguments of the Parties

Appellant's Arguments

• The burden of proving statelessness should not rest on the Appellant, but on the Secretary of State.
• There was evidence before the tribunal proving that the Appellant would be stateless if deprived of British citizenship and that he cannot re-acquire Sri Lankan citizenship.
• The Appellant should be permitted to rely on additional evidence not before the lower tribunals to prove statelessness and inability to regain Sri Lankan nationality.
• The failure of the First-tier Tribunal to consider statelessness was not immaterial and the Upper Tribunal erred in dismissing the appeal on this basis.

Respondent's Arguments

• The burden of proving statelessness lies on the Appellant, especially as there is no statutory prohibition against deprivation of citizenship that results in statelessness under section 40(3).
• Deprivation of citizenship obtained by fraud is a discretionary power and the proportionality of such deprivation must be assessed, but the person subject to deprivation must prove any further adverse consequences beyond loss of citizenship itself.
• The Appellant had not discharged the burden of proving statelessness or the inability to resume Sri Lankan citizenship.
• The Upper Tribunal’s reasoning that the Appellant had not shown a right to resume Sri Lankan citizenship was justified, given the statutory residency requirement and the Appellant’s refugee status.
• The Appellant’s late application to admit new evidence did not satisfy the criteria for admission and was out of time.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under section 40 of the British Nationality Act 1981, distinguishing deprivation under subsection (2) (public good) and subsection (3) (fraud in naturalisation). It highlighted that subsection (4) prohibits deprivation causing statelessness only in subsection (2) cases, not subsection (3) cases.

The court confirmed that appeals under section 40A involve full reconsideration of the Secretary of State’s decision, including fact-finding and discretionary assessment of proportionality. It acknowledged that deprivation of citizenship involves balancing public interest against individual rights, including consideration of article 8 ECHR rights where engaged.

The court emphasized that the burden of proving statelessness lies on the person facing deprivation under section 40(3), as there is no statutory requirement to avoid statelessness in such cases. It rejected the argument that the Secretary of State must prove non-statelessness or that the burden should shift.

Regarding the meaning of "statelessness," the court adopted the definition from international conventions as a person not considered a national by any state under its law. It noted that the Appellant’s only relevant connection was with Sri Lanka and examined Sri Lankan law accordingly.

The court found that the Upper Tribunal erred in interpreting Sri Lankan citizenship law. The Appellant was a citizen by descent, and under Sri Lankan law, citizenship by descent is automatically lost upon voluntary acquisition of another nationality, here British citizenship. Resumption of Sri Lankan citizenship requires application, ordinary residence in Sri Lanka, and ministerial discretion.

Because the Appellant is not ordinarily resident in Sri Lanka and is a refugee fearing persecution there, he has no current right or realistic prospect of resuming Sri Lankan citizenship. Thus, deprivation of British citizenship would render him stateless.

The court considered the Appellant’s late application to adduce new evidence but found it did not meet criteria for admission, though it admitted the expert report solely for confirming the accuracy of the Sri Lankan law cited previously.

Accordingly, the court held that the failure of the First-tier Tribunal to consider statelessness was not immaterial and remitted the case for reconsideration in light of the statelessness finding and proportionality considerations.

Holding and Implications

The court ALLOWED THE APPEAL and remitted the case to the Upper Tribunal for reconsideration of whether the Secretary of State’s discretion to deprive the Appellant of British citizenship under section 40(3) should be exercised differently, given that deprivation would make the Appellant stateless and that he has no realistic prospect of resuming Sri Lankan citizenship.

The court clarified that on remittal the Appellant may rely on any relevant new evidence, including that which was unsuccessfully sought to be admitted on this appeal. The decision directly affects the parties by requiring a fresh discretionary assessment considering the statelessness consequence, but it does not establish a new legal precedent beyond clarifying the burden of proof and the interpretation of the relevant citizenship laws.