Australian supreme court considers British Overseas Citizenship basically worthless

Just catching up on the Australian High Court (their Supreme Court) case on the ban on dual citizenship for holders of public office. If you have not been following it, the Australian constitution bans dual citizens from holding public office. The nationality laws of many countries, including the UK, automatically confer citizenship on people whether they like it or not. Although it is possible to renounce such citizenships, that is an active step which must be taken. Several Australian Members of Parliament and Senators have discovered that they hold citizenships of other countries – Australia is basically a country full of immigrants, after all – and the Australian High Court…

8th December 2017 By Colin Yeo

British citizen wrongly denied passport and ordered to leave UK

The case of R (Miah) v Secretary of State for the Home Department [2017] EWHC 2925 (Admin) concerns a British citizen who made an application for a passport, was refused, and ordered to leave the country. He had no in-country right of appeal against the decision. This case highlights serious issues with decision-making at the Home Office, data sharing between government departments, and the lack of remedies available to applicants who wish to challenge refusal decisions. Citizen Miah Mr Miah was originally born in Bangladesh in 1965. His father had naturalised as a British citizen in 1960, and his parents married some time before that. Mr Miah therefore had a right…

28th November 2017 By Nick Nason

The rise of modern banishment: deprivation and nullification of British citizenship

To deprive a person of their citizenship on the grounds of their behaviour or opinion is to cast them out of society. It is a power of exile or banishment. In Roman law, the punishment of “proscription” was civic and literal death, unless the person went into exile. It would be used only in cases of crimes against the state itself. Cicero did not make it as far as exile. As he fled he was summarily but lawfully executed, his property confiscated by the state and his head and hands severed and publicly displayed in Rome. Taking away from a person their citizenship is the closest modern equivalent we have to…

24th November 2017 By Colin Yeo

Naturalising or registering as a British citizen: the good character requirement

With very few exceptions, anybody over the age of ten who applies for registration or naturalisation as a British citizen needs to meet the so-called “good character requirement”. This is a requirement set out in Schedule 1 of the British Nationality Act 1981. Where a person is deemed by the Home Office not to be “of good character” then his or her application for citizenship will be refused. There is no further definition of what is meant by “good character” in the British Nationality Act 1981. However, there is guidance available from the Home Office as to what is likely to be considered behaviour that indicates a person is not…

20th November 2017 By Colin Yeo

Northern Irish tribunal finds against Home Office on dual nationality

A woman from Northern Ireland who refuses to identify as British in order to facilitate her husband’s immigration application has succeeded in her First-tier Tribunal challenge against the refusal of a residence card. The Home Office had told Emma DeSouza, who is from Magherafelt and holds an Irish passport, that as a British citizen she could not use more generous EU free movement laws to sponsor her American husband Jake DeSouza. The essence of the tribunal decision in the couple’s favour is that, due to the Good Friday Agreement, people from Northern Ireland can be Irish citizens only and so eligible to use the more liberal EU sponsorship rules. As mentioned in…

15th November 2017 By Conor James McKinney

Worker Registration Scheme extension unlawful, Court of Appeal confirms

In a decision of 7 November 2017, the Court of Appeal unanimously found, yet again, that the extension of the Worker Registration Scheme from 1 May 2009 to 30 April 2011 was unlawful and incompatible with EU law. The case is Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751. The facts of the case are not necessary to understand the outcome, so I will not dwell on them. What was the Worker Registration Scheme? On 1 May 2004, ten new states joined the European Union. Of those, eight are large countries in eastern Europe and are collectively referred to as the “A8 states”. Annex VIII…

9th November 2017 By Nath Gbikpi

New ebook now available: Naturalising as a British citizen

Our new ebook guide Naturalising as a British citizen is now available for purchase for £9.99 (free for Free Movement members). For most people, an application for naturalisation is something they can complete on their own. This ebook helps individual applicants to do just that. In 2016 just shy of 150,000 foreign nationals naturalised as British citizens. But 8% of applications were rejected, the majority because of failure to meet the “good character” and residence requirements. As the cost of an unsuccessful application is almost £1,300 – this processing fee is retained by the Home Office regardless of the outcome – £9.99 is a worthwhile investment for peace of mind. This comprehensive…

19th October 2017 By Colin Yeo

Deception, causation and deprivation of British citizenship

In Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 (IAC) the tribunal considered the question of how directly causative past deception must be of a subsequent grant of British citizenship in order for a person to be deprived of that citizenship on the basis of deception. The official headnote: In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of” fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship. The deception in this case was to mislead the authorities about age on…

19th September 2017 By Colin Yeo

New Home Office Policy Guidance for British Nationality

The Home Office today published a new collection of guidance documents used by the UK Visas and Immigration service when deciding applications for British nationality. These seem to have replaced the Nationality Instructions with, it seems, no guidance on what has been carried over, changed or dropped from the Nationality Instructions: Section 1: Requirements and considerations common to all types of British nationality This section contains information on common aspects of nationality policy and processes that apply to the applications for all types of British nationality. Adoption: nationality policy guidance Assessing ordinary residence: nationality policy guidance Domicile: nationality policy guidance British nationals: nationality policy guidance Deprivation and nullity of British citizenship:…

27th July 2017 By Chris Desira

Home Office inspectors release series of reports: highlights for lawyers

For some reason the Home Office has just released a swathe of inspection reports into a wide range of Home Office operations. In practical terms, this makes it impossible for the press to pick out more than one or two stories from the reports and it therefore very effectively reduces scrutiny. Usually I have nothing better to do than sit and read these reports when they are hot off the press (!) but 10 in two days seems excessive even to me I cannot stir myself to read all of them. It is almost as if there is something to hide somewhere in there. Nevertheless, I am going to confine…

14th July 2017 By Colin Yeo

Can a child stateless by “choice” be registered as a British citizen?

Under the British Nationality Act 1981, a child who is born in the UK and is (and always has been) stateless is entitled to register as a British citizen. See Schedule 2, Paragraph 3: 3 (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely— (a) that he is and always has been stateless; and (b) that on the date of the application he was under the age of twenty-two; and (c) that he was in the United Kingdom…

6th July 2017 By Nick Nason

UK wrong to deny residence rights for non-EEA family members of dual nationals

The question about what rights are enjoyed by an EU citizen who naturalises as a British citizen becoming a dual citizen is critically important in the context of Brexit. We previously gave some context on why the UK denies dual citizens’ rights under EU law and why many lawyers believe that approach is wrong. This issue was put to the Court of Justice in the case of Lounes C-165/16 has now received a formal Opinion by the Advocate-General suggesting that the UK was wrong to deny EU rights to dual citizens and their family members. Advocate General Opinions The Court of Justice interprets EU law to make sure it is…

31st May 2017 By Chris Desira

Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC) -Comment by Ian Macdonald QC

Ian Macdonald QC has sent in an interesting note on the controversial Capparrelli determination. For background, see original Free Movement write up here: Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children. Section 1 of the British Nationality Act 1981 (the “1981 Act”), the subject matter whereof is “Acquisition by birth or adoption”, provides: “(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is— … (b) settled in the United Kingdom or that territory.” Section 1 came…

18th May 2017 By Colin Yeo

Tribunal gives guidance on general principles in deprivation of citizenship appeals

Interesting case on deprivation of citizenship, not least as the Home Office spectacularly messed up by refusing on an unjustifiable grounds when there was a justifiable one staring them in the face. Official headnote: (i) The Secretary of State has two separate powers of deprivation, exercisable on different grounds, as set out in sub-ss (2) and (3) of s 40 of the British Nationality Act 1981. (ii) The power under s 40(2) arises only if the Secretary of State is satisfied that deprivation is conducive to the public good. (iii) The power under sub-s (3) arises only if the Secretary of State is satisfied that registration or naturalisation was obtained…

17th May 2017 By Colin Yeo

Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children

In a controversial determination, the President of the Upper Tribunal Immigration and Asylum Chamber, Mr Justice McCloskey, has found that the Home Office has wrongly issued British passports to hundreds or even thousands of children of EU, EEA and Swiss citizens born in the UK before 2 October 2000. The case is Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC). If the determination is correct, which is questionable, it could also mean that almost no EU or EEA citizen could ever have qualified for British citizenship and that British citizenship may have been wrongly conferred on tens of thousands of EU, EEA and Swiss citizens. Remarkably, considering the exceptionally broad impact…

26th April 2017 By Colin Yeo

Can President Assad’s wife be deprived of her British citizenship on public good grounds?

The “Liberal” Democrats are apparently calling for President Assad’s wife to be deprived of her British citizenship. I am loathe to refer to anyone as “x person’s wife” but this seems to be exactly the basis for the deprivation of citizenship: that she is President Assad’s wife. The remainder of the justification seems very thin indeed. Liberal Democrat foreign affairs spokesman Tom Brake says that she has supported President Assad’s regime and therefore should be stripped of her British citizenship. It is not said she has personally been involved in any war crimes or similar or to have sanctioned such atrocities. Mr Brake seems to consider that holding and expressing a…

17th April 2017 By Colin Yeo

Court of Appeal gives guidance on meaning of ‘unlawful residence’

The case of Akinyemi v SSHD [2017] EWCA Civ 236 concerns the deportation of a man born and raised in the United Kingdom, a country he has never left. It provides valuable guidance on the meaning of the word ‘unlawful’ within the context of deportation provisions introduced by the Immigration Act 2014 and shows just how far the law has moved in this area. Facts Remi Akinyemi is a man for whom one struggles to feel any great sympathy. Over the course of a prolific criminal career he accumulated 20 convictions and was found guilty of, amongst other offences, causing death by dangerous driving, possession of heroin with intent to supply, and…

11th April 2017 By Nick Nason

Upper Tribunal dismisses appeal against deprivation of citizenship of Rotherham sex gang

The facts behind the case are notorious; the law elucidated is notable. See the background legal discussion on the history of citizenship laws, the process behind deprivation, the relevance of the best interests of affected children and the relevance (or rather lack of it) of EU law at paragraphs 26 to and the official headnote: (i) While the two fold duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 are imposed on the Secretary of State, the onus of making representations and providing relevant evidence relating to a child’s best interests rests on the appropriate parental figure. (ii) A failure to discharge this onus may well…

3rd April 2017 By Colin Yeo

Do dual EU-UK citizens have rights under EU law?

The question of what rights are enjoyed by an EU citizen who naturalises as a British citizen and becomes a dual citizen has become a critically important one in the context of Brexit. There is huge uncertainty amongst EU citizens and their family members living in the UK about their future status and there is huge interest in the possibility of naturalising as British citizens. At the same time, though, it has to be said, the number of EU citizens successfully applying for naturalisation as British actually fell between 2015 and 2016, from 17,158 to 14,901. This was presumably because of additional hurdles the UK Government has erected in the way of EU citizens seeking…

3rd April 2017 By Colin Yeo

When is it reasonable to require British citizen children to leave Britain?

Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014. Reasonableness of requiring a British child to leave UK It turns out that the Secretary of State’s policy is that it is never reasonable to require a British citizen child to…

29th March 2017 By Colin Yeo

K2: right to a private and family life no bar to deprivation of citizenship

K2 v the United Kingdom (Application No 42387/13) The use of the Home Secretary’s power to strip a British citizen of their citizenship is on the rise. It has been the subject of debate where its use has rendered a person stateless following a series cases in the higher courts (see, for instance, here and here). But what arguments can be used to prevent the deprivation of citizenship where the person remains a citizen of a foreign country? In K2, the attempt focused on the applicant’s right to a private and family life under article 8 of the European Convention on Human Rights. The complaint was declared inadmissible, in a judgment in…

20th March 2017 By Thomas Beamont

Supreme Court grants permission to appeal granted in Hysaj nationality appeals

The Supreme Court has granted permission to appeal against the Court of Appeal case of R.(On the Application of Hysaj) v Secretary of State for the Home Department [2015] EWCA Civ 1195. On 27 February 2017, the Supreme Court of the United Kingdom granted permission to the appellants, as to the lawfulness of the decisions of the Secretary of State for the Home Department (“SSHD”) to treat the appellants’ British citizenship as null and void from the outset on the basis that it had been obtained by fraud… Sonali Naik and Helen Foot of Garden Court Chambers are acting on behalf of all three appellants. Source: Garden Court Chambers | Supreme…

8th March 2017 By Colin Yeo

Home Office messes up deportation of former Malaysian and British Overseas Citizen

Official (rather terse) headnote: The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect. I’ve got some sympathy for the Home Office on this one. The President asserts that it is “incoherent” to describe a British Overseas Citizen as “a British national albeit that he does not have a right of abode” (paragraph 27). That seems to me actually to be an accurate description: a British national but not a British citizen, the two being distinct for various slightly arcane reasons of colonial withdrawal. Other…

7th March 2017 By Colin Yeo

No child should be stateless

Good campaign and resources on ending child statelessness. The infographics are useful explainers and you can also sign the petition if you support the cause. Source: NO CHILD SHOULD BE STATELESS

8th November 2016 By Colin Yeo

New free best practice guide to statelessness applications for leave to remain published

A new free best practice guide to statelessness applications for leave to remain has been published by ILPA and Liverpool Law Clinic. You can get it here. It equips lawyers with the tools they need to offer high quality legal representation and to press for the best possible implementation of the statelessness procedure. Statelessness occurs all over the world but well-known examples of communities where statelessness is prevalent are the Roma, Palestinian, Kuwaiti Bidoon, Rohingya and Saharawi peoples. Free training is also available.

7th November 2016 By Colin Yeo

Supreme Court finds British nationality law discriminatory, allows appeal on human rights grounds

The Supreme Court has decided that the historic failure of British nationality law to confer automatic citizenship on a child born out of wedlock was discriminatory, it has continuing consequences which breached a person’s human rights in a discriminatory way and that denying such a person British citizenship now is unlawful should they request it. The fact of the person’s later criminal offending was not relevant because the injustice had occurred at birth. The case is R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56. The background facts are not unusual. In short, the appellant, Mr Johnson, would have automatically been born…

20th October 2016 By Colin Yeo

Citizenship deprivation appeals must include consideration of likelihood of removal

(1) As held in Deliallisi (British citizen: deprivation appeal: scope) [2013] UKUT 439 (IAC), in an appeal under section 40A of the British Nationality Act 1981 the Tribunal is required to determine the reasonably foreseeable consequences of deprivation. (2) Whilst the Tribunal considering a section 40A appeal cannot pre-judge the outcome of any future legal challenge that the appellant might bring against a decision to remove, following deprivation, the Tribunal must nevertheless take a view as to whether, from its present vantage point, there is likely to be force in any future challenge: cf section 94 of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the immigration rules. The…

14th October 2016 By Colin Yeo

EU nationals must apply for permanent residence card for British nationality applications

The British Nationality Act 1981 requires a successful applicant for British citizenship to show, amongst other things, that he or she is free from immigration restrictions. Technically, the requirement is set out in paragraph 2(c) of Schedule 1 to the British Nationality Act 1981, which requires an applicant to show: that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom Citizens of EU and EEA countries and their family members were until 12 November 2015 able to qualify once they had possessed permanent residence for a 12…

1st August 2016 By Colin Yeo

Serbian police officer fails in challenge to refusal of British citizenship on character grounds

Interesting but unsuccessful judicial review of the refusal to grant British citizenship to a former Serbian police officer on good character grounds. The good character refusal was based on his activities as described at paragraph 5 of the judgment: The Claimant was born on the 8th of August 1981 in Bor in Serbia formerly the Socialist Federal Republic of Yugoslavia (FRY). He is ethnically ‘Kosovo Albanian’. In 1980 his family moved to Pristina in Kosovo. Between 1986 and 1999 he was a career police officer with the Serbian police Force. He was bilingual fluent in both Serbian and Albanian. Critically for present purposes he was employed in the force’s intelligence…

29th July 2016 By Colin Yeo

Form AN updated: application to naturalise as a British citizen

UPDATE: A Home Office source says that the update is a mistake, incredibly. Form AN for applying to naturalise as a British citizen has just been updated to state that a permanent residence certificate or card is NOT mandatory for EEA nationals and their family members. It now says: Please Note: Whilst the submission of a document certifying permanent residence or a permanent residence card is not mandatory, failure to submit one may lead to delays in reaching a decision on your application. If you do not provide a document certifying permanent residence or a permanent residence card then you must provide the following for consideration: Evidence of exercising Treaty Rights…

20th July 2016 By Colin Yeo

British citizenship deprivations 2006 to 2015

A recent Freedom of Information request reveals the number of times the Home Secretary has deprived British citizens of their citizenship over the last ten years as well as the breakdown of reasons. The raw numbers were as follows: Year Total 2006 > 5 2007 0 2008 0 2009 > 5 2010 > 5 2011 6 2012 6 2013 18 2014 23 2015 19 Total 81 There were two separate legal powers used to effect these derivations. The first was section 40(2) of the British Nationality Act 1981, which permits deprivatation where the Secretary of State “is satisfied that deprivation is conducive to the public good.” The second was section 40(3) of…

7th July 2016 By Colin Yeo

Worker Registration Scheme causing problems with British citizenship for some children

Some worrying news from The Guardian: UK citizenship has been given to the children of eastern Europeans living in Britain without the proper paperwork, the Guardian has learned. The affected families come from countries including Poland and the Czech Republic that joined the EU in 2004 and so far around 100 problematic cases have been discovered, although there may be more. The missing documents in question seem to be Worker Registration Scheme registration documents. Those affected are nationals of the countries that joined the EU in 2004, referred to as the Accession 8 or A8 countries, and who worked in the UK but did not register under the Worker Registration Scheme….

1st July 2016 By Colin Yeo

Terror watchdog review of citizenship deprivation powers

The Independent Reviewer of Terrorism Legislation, David Anderson QC, has issued a report on citizenship removal resulting in statelessness. There had been no cases during the period covered by the report, 30 July 2014 to 29 July 2015, so the report does not go into any specifics. Anderson instead reviews the legal background to the power and some of the criticisms that have been levelled against it. He notes, for example, that the power is similar to that in force prior to 2003. Between 1949 and 1973 there were apparently 10 cases in which persons who had become citizens by application were rendered stateless by deprivation of British citizenship, after…

28th April 2016 By Colin Yeo

Is the UK Government selling British passports?

A few snippets from a recent debate in the House of Lords. An amendment to the current Immigration Bill currently wending its way through Parliament was tabled which would close the Tier 1 Investor route. This type of visa is obtained by making an investment of at least £2 million into certain specified investment vehicles. The scheme was recently criticised by Transparency International for facilitating large scale fraud. Lord Green of Migration Watch expressed his scepticism of the efficacy and morality of the Tier 1 Investor route: It is hardly too cynical to describe this as a scheme for selling British passports to the very wealthy. There is absolutely no justification for that…

24th February 2016 By Colin Yeo

Discriminatory denial of British nationality not a breach of human rights

Mr Johnson was born on 18 March 1985 in Jamaica. His mother was a Jamaican national and his father was a British national. At the time of his birth, an “illegitimate” child could acquire British nationality at birth or by registration as a minor only if his mother was a British national. Mr Johnson therefore could not acquire British nationality by descent either at birth or by registration as a minor. There was a policy in place to permit registration if proof of paternity could be provided. Mr Johnson came to the UK in 1991 and never acquired British citizenship. he committed some very serious offences, including manslaughter. The Home…

28th January 2016 By Colin Yeo

Refusal and revocation of British citizenship for dishonest conduct

In another reminder that British citizenship can be refused on the basis of past dishonest conduct we have the case of R (on the application of Rushiti & Anor) v Secretary of State for the Home Department [2014] EWHC 3931 (Admin). This one dates back a few months but I’m afraid I only just found it in my drafts folder. It involves two linked cases, both of which are further examples of Albanians entering the UK and pretending to be Kosovar, eventually obtaining immigration status then applying for British citizenship. Many of these people have since settled down, gotten jobs and had children. The cases put me in mind of the Mayor…

18th January 2016 By Colin Yeo

Are the latest nationality regulations lawful in requiring permanent residence cards for EU citizens?

As was reported on Free Movement last month, the British Nationality (General) (Amendment No. 3) Regulations 2015, have made it harder for persons with an EU law-based right of permanent residence to naturalise as British citizens. That is the consequence of a new requirement that such persons first obtain a residence document as evidence of their right, even though such a document is unnecessary for residence as such. It seems likely that this change is a response to increased numbers of EU citizens naturalising as British citizens in recent years – up from 2,714 in 2008 to a high of 13,985 in 2013, before a fall to 7,380 in 2014….

18th December 2015 By Bernard Ryan

Upper Tribunal says children not stateless if they can be registered

The child, born in the United Kingdom, of a foreign national, who seeks to be recognised as stateless, but who can under the law of the parent’s nationality, obtain citizenship of that country by descent by registering their birth, may properly be regarded as admissible to that country , as set out at paragraph 403(c) of HC 395. Though a greater intensity of scrutiny is appropriate in a case such as this, it remains the case that the decision that an individual is not stateless can only be impugned on public law principles. Source: JM, R (on the application of) v Secretary of State for the Home Department (Statelessness: Part…

15th December 2015 By Colin Yeo

Refusal of citizenship to wife and children of Islamist extremist declared unlawful

The Secretary of State for the Home Department refused the citizenship applications of the wife and two minor children of an Islamist extremist relying on the residual discretion to refuse to naturalise a person imparted by the use of the word “may” in the British Nationality Act 1981. The refusal was justified by the Home Office as punishment by proxy which would have the effect of deterring other extremists. The High Court has declared that unlawful in the case of MM & GY & TY v Secretary of State for the Home Department [2015] EWHC 3513 (Admin). The refusal of citizenship on discretionary good character grounds is a growing phenomenon, as has…

8th December 2015 By Colin Yeo

Approach of Home Office to nationality case “astonishing and grotesque” rules High Court

My colleague Adrian Berry has done an excellent write up of one of his cases over on his blog that I can heavily recommend as reading: British Citizenship by Descent:Trial and Error. The case is R (Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin), a challenge to a refusal by British officials to recognise the British citizenship of a lady who was a survivor of domestic violence looking to rebuild her life.

16th October 2015 By Colin Yeo