Deprivation of Citizenship - Updates

Updated guidance

The Home Office has recently updated its caseworker guidance, Deprivation of British citizenship. This guidance was first published in May 2023, and replaced Chapter 55 of the Nationality Instructions.

That guidance has recently been updated to clarify the factors which will not normally lead to deprivation of citizenship under section 40(3) of the British Nationality Act 1981 (“BNA 1981”) on the grounds of fraud, false representation or concealment of material fact. In particular, the updated guidance clarifies the position in relation to minors.

First, it provides that, in general, it will not usually be appropriate to make a decision to deprive if the person was a minor on the date on which they acquired citizenship. The guidance clarifies that, where a person becomes an adult before the application has been decided and does not notify the decision maker of the fraud, the Home Office will consider whether they maintained the deception. An important factor will be whether they had a reasonable opportunity to notify the decision maker of the fraud. The guidance acknowledges that where the application is granted very soon after the person became an adult, the applicant may not have had a reasonable opportunity to notify the decision maker before the application was granted.

Second, the guidance now makes clear that where an adult submits an application for citizenship which maintains a fraud, false representation or concealment of material fact committed when they were a minor, the Home Office must consider whether they were aware of the fraud when submitting that citizenship application and there was therefore a deliberate intention to continue the fraud in their citizenship application. The guidance goes on to state that whether the person intended to deceive, and whether that deception was material to the acquisition of citizenship, will ultimately depend on the individual facts of the case. Notably, this is tighter than the guidance in Chapter 55 of the Nationality Instructions, which provided that: “if a person was a minor on the date at which they acquired indefinite leave to remain and the false representation, concealment of material fact or fraud arose at that stage and the leave to remain led to the subsequent acquisition of citizenship we will not deprive of citizenship”, unless “it is in the public interest to deprive.”

Relevance of the good character requirement and deprivation decisions

The caseworker guidance above provides that when considering whether to make a decision to deprive under section 40(3) BNA 1981, a relevant factor is whether the fraud was material to the acquisition of citizenship. The guidance provides: “If the relevant facts, had they been known at the time the application for citizenship was considered, would have affected the decision to grant citizenship via naturalisation or registration then you must consider deprivation action.”

In Onuzi (good character requirement: Sleiman considered) [2024] UKUT 00144 (IAC), the Upper Tribunal gave guidance on the assessment of materiality for these purposes.

The applicant in Onuzi had claimed asylum using a false identity, claiming to be a national of Kosovo and ethnic Albanian. He was in fact a national of Albania. He was refused asylum, but was subsequently granted indefinite leave to remain on an exceptional basis, in the exercise of the Secretary of State’s discretion, because of maladministration in his case. He later naturalised as a British citizen. At all times the applicant continued to conceal the fact that he had used a false identity and made a false asylum claim. Following investigations, the Secretary of State discovered the fraud and made a decision to deprive him of his citizenship. His appeal against the decision was allowed by the First-tier Tribunal on the basis that the fraud was not material to the acquisition of citizenship. This was because his nationality had not been material to the grant of indefinite leave to remain (“ILR”) which ultimately led to him being naturalised. The applicant had been granted ILR in the exercise of the Secretary of State’s discretion because of maladministration, and not because he was a Kosovar Albanian.

The Upper Tribunal held that this was the wrong approach, and gave the following guidance:

• One of the statutory requirements for naturalisation under section 6(1) BNA 1981 is that the applicant is a person of good character (which is not defined in the legislation). Any negative behaviour that might cast doubt on whether a person is of good character is likely to be directly material to the assessment of the statutory requirement.
• In the majority of cases where negative behaviour that might cast doubt on whether a person is of good character has been dishonestly concealed from the Secretary of State, the fact that the negative behaviour might not have been directly relevant to an earlier grant of leave is unlikely to make any material difference to the assessment under section 40(3) BNA 1981.
• The concept of a chain of causation being broken is only likely to be relevant in cases where there was full disclosure and the Secretary of State exercised discretion to grant leave to remain or naturalisation while in full possession of the facts.

This considerably narrows the arguments that can be made in respect of materiality. The reality is that, if an applicant continued to conceal the fraud, including at the time of the application for naturalisation, it will now be very difficult to argue that the fraud was not material to the acquisition of citizenship.

This blog was written by Hafsah Masood