Secretary of State for the Home Department v Daci

Factual and Procedural Background

This appeal concerns the Secretary of State for the Home Department's decision dated 2 August 2021 to deprive the Respondent of his British citizenship under section 40(3) of the British Nationality Act 1981 (BNA 1981) on grounds of fraud. The First-tier Tribunal (FTT) initially allowed the Respondent's appeal against that decision, finding that the Respondent had not obtained citizenship by fraud. The Upper Tribunal (UT) set aside the FTT’s decision and subsequently remade the decision, allowing the appeal on the basis that the Secretary of State had failed properly to exercise the statutory discretion under section 40(3) by not considering relevant factors.

The Respondent was born in 1981 in Albania and entered the UK in 1998 claiming asylum under a false identity, including a false name, date of birth, and nationality. He was granted indefinite leave to remain in 1999 and naturalised as a British citizen in 2004 under the false identity. In 2020, the Home Office discovered the fraud, and in 2021 the Secretary of State decided to deprive him of citizenship. The decision letter dated 2 August 2021 outlined the grounds for deprivation and addressed representations made by the Respondent, including claims of minority status at the time of fraud, delay, and human rights considerations under Article 8 of the European Convention on Human Rights (ECHR).

The UT found that although the Secretary of State acknowledged the discretion to deprive citizenship, the decision letter did not reflect a substantive consideration of relevant factors presented by the Respondent. The UT concluded that the discretion had not been properly exercised and remitted the matter. The Secretary of State appealed this finding, and the Court of Appeal heard the case alongside similar appeals concerning section 40(3) and 40(2) of the BNA 1981.

Legal Issues Presented

1. Whether the Upper Tribunal was wrong to find that the Secretary of State's decision dated 2 August 2021 was unlawful because the Secretary of State failed to recognise, exercise, and give sufficient reasons for the discretion under section 40(3) of the BNA 1981.
2. Whether the Secretary of State's decision was otherwise unlawful and disproportionate, particularly due to alleged misapplication of the relevant policy.
3. Whether, if the Secretary of State's appeal is allowed, the Respondent's Article 8 ECHR claim should be remitted to the First-tier Tribunal or the Upper Tribunal for determination.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State contended that the UT erred in law by concluding that relevant considerations were not taken into account and that reasons for exercising discretion were insufficient.
• On a fair reading of the decision letter, the Secretary of State had addressed all discretionary factors raised by the Respondent's representatives and had exercised the discretion properly.
• It was submitted that the interpretation that the Secretary of State only considered factors after paragraph 43 of the letter was unreasonable.
• The decision concerning the Respondent's Article 8 ECHR claim had not been considered by the UT and should be remitted for determination.
• The Secretary of State’s decision that the Respondent’s fraud caused the grant of citizenship was correct and consistent with relevant policy.

Respondent's Arguments

• The Respondent submitted that the UT was correct to allow the appeal because the Secretary of State failed to exercise the statutory discretion under section 40(3) properly.
• The decision letter acknowledged the discretion but did not demonstrate that it was exercised or that reasons were provided for its exercise.
• The Secretary of State’s decision was unlawful and disproportionate, particularly because the Respondent was a minor when entering the UK and thus the relevant policy should have mitigated against deprivation.
• The UT had not yet addressed the Respondent’s Article 8 ECHR claims, which were significant to the lawfulness of the deprivation decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal undertook a detailed review of the Secretary of State’s decision letter dated 2 August 2021. It found that the Secretary of State was aware of the statutory discretion under section 40(3) of the BNA 1981, exercised it, and provided sufficient reasons for doing so. The letter explicitly addressed the Respondent’s representations, including minority status at the time of the fraud, delay, and human rights considerations, and referred to relevant policy guidance. Although paragraph 43 of the letter separately acknowledged the discretion and listed factors, the court interpreted this as a summary reference to earlier detailed considerations.

The court rejected the UT’s conclusion that the discretion had not been exercised or reasons provided, finding that a fair reading of the letter demonstrated a considered exercise of discretion.

On the question of lawfulness and proportionality, the court held that the Secretary of State’s decision was consistent with the relevant policy. The Respondent was an adult when he obtained indefinite leave to remain and when he applied for naturalisation, and thus was properly treated as complicit in the fraud under the policy. The delay in discovering the fraud did not render the decision disproportionate, as the deceit continued into adulthood and the Secretary of State acted promptly upon discovery.

Regarding the Article 8 ECHR claim, the court acknowledged that deprivation of citizenship engages human rights but noted that such interference is generally limited compared to deportation. The court concluded that this issue had not been determined and should be remitted to the UT for consideration in light of the Human Rights Act 1998.

Holding and Implications

The Court of Appeal held that:

• The Upper Tribunal was wrong to find that the Secretary of State had failed to exercise the statutory discretion or provide sufficient reasons for it under section 40(3) of the BNA 1981.
• The Secretary of State’s decision to deprive citizenship was consistent with the relevant policy and was not unlawful or disproportionate at common law.
• The Secretary of State’s appeal against the Upper Tribunal’s decision is allowed.
• The Respondent’s appeal against the Secretary of State’s deprivation decision is remitted to the Upper Tribunal to determine the compatibility of the decision with Article 8 of the ECHR and its lawfulness under the Human Rights Act 1998.

The direct effect is that the deprivation decision stands subject to further human rights assessment by the UT. No new precedent was established beyond the clarification of the proper exercise and reasoning of discretion under section 40(3) of the BNA 1981 in this context.