England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/03/2014

MR JUSTICE OUSELEY :

1. These three cases were heard together because of the common issues which they raise. All are Albanians who were naturalised as British citizens between 2004 and 2006. The Secretary of State has since discovered that, in their applications for naturalisation, they all lied about their nationality in claiming to be from Kosovo, two lied about their age, making one a minor on his claim for asylum, and one of those also lied about his name. She wrote to each saying that their naturalisation was in consequence a nullity.
2. They challenge those decisions first on the grounds that those admitted lies did not mean that they had impersonated anyone. Impersonation was the test for whether naturalisation was a nullity, rather than, as with other lies, providing grounds for deprivation of nationality, with its statutory right of appeal. The decided cases should be given a very narrow reading on this point, if they had not been wholly overtaken by changes in the statutory regime. Second, all three had Indefinite Leave to Remain, ILR, at the time of their applications for naturalisation, satisfied the statutory tests and so by definition were the persons to whom citizenship was granted.

The facts

3. Agron Bakijasi: he arrived in the UK in 1999 and claimed asylum. He gave a false name, false birth date, (though not one which made him a minor), and false nationality. He gave a false account of persecution in Kosovo. His claim was refused on the basis that it was safe for him to return to Kosovo in 2004; he applied for leave to remain under the Family ILR Exercise, using the same false details, and was granted ILR on 21 September 2005. Bakijasi does not contend that the false particulars were immaterial to the grant of ILR: the grant letter is headed with the false name, false date of birth and false nationality. He does contend that it was not determinative of the reasons for the grant by the Defendant. His first son, born in the UK in August 2003, with his birth registered in his father's false surname and his father's false nationality, was granted ILR as his dependant; Bakijasi applied on his behalf in the false surname.
4. Bakijasi applied for naturalisation in October 2006 using the same false details as to name, date of birth and nationality. He was naturalised on 30 November 2006, the certificate bearing the same false details. The standard certificate states that it does not certify the accuracy of the personal particulars.
5. He applied for his first son to be registered as a British citizen, using his false surname as the father, and giving his son's nationality as Kosovan. Bakijasi's second son, born in the UK in 2007, purportedly became a British citizen by birth, other than by descent. His birth certificate also gives the false surname and father's false nationality. They all have British passports on which they travel.
6. Bakijasi was untruthful in a number of other respects, in particular about the whereabouts of the mother of the children, an overstayer from 2001, but who returned to Albania with her two sons in 2007 in an attempt to regularise her immigration status. This led to the discovery of her husband's lies. Her appeal against the refusal of entry clearance, refused in May 2010 in part because of her immigration record and her own use of false documents, was allowed and in March 2011 she was granted a visa to return to the UK. She returned with the two children. She married Bakijasi, in his false name in 2011. On 9 October 2013 she was granted ILR.
7. On 28 October 2009, following an enquiry on behalf of Bakijasi, the UKBA wrote saying that action to deprive him of his nationality was possible but not likely since he had been granted ILR in the Family Exercise. On 18 February 2010 it wrote saying that the recommendation was against action being taken to deprive him of his nationality. On 19 March 2010, it wrote again saying that that remained the position but Tribunal decisions were awaited which would have a bearing on the decision; it was important that the bona fides of a case be determined.
8. On 27 June 2013, the SSHD wrote saying that Bakijasi was not and never had been a British citizen; his citizenship was a nullity. That is the decision now challenged by him. The letter explained that the delay in issuing this decision was caused by a number of appeals against deprivation decisions which delayed finalising the decision in this case. The decision not to deprive him of citizenship was because his case came within the policy for excluding certain cases from that process; here it was that he had been granted ILR under the "family amnesty". The letter continued:

"In addition, we also reviewed our policy on recognising a grant of citizenship as null and void based on current case law. The out come of this review is that it is possible that a grant of citizenship may, in some cases, be regarded as null and void if an individual has applied to naturalise using false particulars. In the light of the information now provided, the Secretary of State is satisfied that the naturalisation was obtained by mean of impersonation."

9. Consequently he had never been a British citizen and his certificate should be returned for cancellation. He reverted to his previous status of having ILR, but, warned the letter, the 2005 decision would be reviewed in the light of his conduct. His passport should be returned. The SSHD warned that she would defend robustly any judicial review. Ms Chan did not let her down.
10. It is, however, not disputed by the SSHD that the two children are British citizens, and she does not contend that nullifying his citizenship would nullify theirs. Nor does she contend that the grant of ILR to him was a nullity or would become a nullity, if his citizenship were held to be a nullity. She also accepts that at the time when he applied for naturalisation that he had ILR.
11. Dinjan Hysaj: he arrived in the UK and claimed asylum in July 1998, giving his true name but a false date of birth, making him a minor born in 1981, whereas he was born in 1977; he also alleged that he was from Kosovo, a citizen of the Federal Republic of Yugoslavia, where he claimed falsely that he had been persecuted. He was in fact Albanian. In May 1999, he was accepted as a refugee and granted ILR, which would not have happened had the Secretary of State known the true facts. In 2004, he applied for naturalisation using the same identity details, and was granted it on that same basis in November 2004. His deceit came to light in 2008 and he admitted it in September 2008, after being warned that the SSHD was considering depriving him of British nationality. He does not appear to have been told that this would not proceed. In 2011, he was sentenced to 5 years' imprisonment for causing grievous bodily harm. On 13 February 2013, the SSHD wrote to him saying that he was not and never had been a British citizen because the grant had been obtained by impersonation. The letter was in similar terms to the letter of 27 June 2013 to Bakijasi. On 8 April 2013, she served notice of intention to make a deportation order, and followed that up in November 2013 with a letter notifying him that she was considering cancelling his refugee status. But again it is not contended that the grant of ILR was a nullity or that the nullification of his nationality would prevent him reverting to that status.
12. He has a wife in Albania who has been seeking entry clearance since 2008; their son was born in Albania in 2010. The SSHD contends that the son is an Albanian citizen. She says that as the father never applied for the registration of his son as a British citizen by descent, he is not a British citizen. He could not now become one in that way if the father's nationality is nullified. Hysaj says that no application for registration was necessary and that his son is a British national. I do not need to resolve that particular issue. However, both are agreed that, by contrast with Bakijasi, the nullification of Hysaj's nationality would nullify the child's British nationality as well – if he had it in the first place. Hysaj accepts this because the child had never lived in the UK, had not been issued with a British passport and there were no exceptional circumstances.
13. Luan Kaziu: he was 16 when he arrived in the UK in 1998. He was recognised as a refugee who faced persecution in Kosovo as an ethnic Albanian, and was granted refugee status in 1998, and 4 years' limited leave to remain. He gave his true name and date of birth, but falsely claimed to be from Kosovo, when he was in fact an Albanian national. He also gave false family details, also claiming that he was born in Kosovo. He was granted ILR in 2003. There is a debate about whether he would have received four years' Exceptional Leave to Remain, ELR, in 1998 anyway as an unaccompanied minor who had no adequate reception facilities in his country of nationality; the SSHD's evidence was that he would have been granted 12 months ELR, becoming eligible for ILR after 6 years, and that he could not show that he would have had ILR but for his deception. In my view, he cannot show that he would have received any ELR had he been truthful about his nationality, since that would require consideration of reception facilities for him back in Albania. He cannot show that he would have received ILR at all had he been truthful.
14. In March 2004 he applied for naturalisation and was naturalised in February 2005. His fraud came to light in 2007, when his wife applied for entry clearance. In May 2009, the SSHD notified him that she was considering depriving him of his nationality, to which he made representations in response in 2011 and 2012. He received no direct response. He eventually received a letter of 21 March 2013, in materially similar terms to those received by Bakijasi and Hysaj, telling him that his nationality was a nullity.
15. His two children were born in Albania in 2010 and 2013. They are in the same position as Hysaj's child.

The statutory and case law framework

16. S20 of the British Nationality Act 1948 provided for deprivation of citizenship:

"(1) A citizen of the United Kingdom and Colonies who is such by registration…or is a naturalised person shall cease to be a citizen… if he is deprived of that citizenship by an order of the Secretary of State made under this… section.;

(2) Subject to the provisions of this section, the Secretary of State may by order deprive any such citizen of his citizenship if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact."

17. By subsection (7), the person affected could apply for an inquiry which would be conducted by a committee led by a person with judicial experience. The Act does not say, but I have taken it that the committee could find facts but only make recommendations.
18. This Act is relevant because it was the Act under consideration by the Court of Appeal in R v SSHD ex p Mahmood [1981] QB 59, decided 26 July 1978, which is the starting point for the SSHD's stance on impersonation as a basis for nullification. The SSHD had registered someone calling himself Javed Iqbal, a citizen of Pakistan, as a British citizen. This person, although a citizen of Pakistan, was not Iqbal at all, who was dead, but Mahmood, Iqbal's cousin/brother in law. Mahmood had adopted Iqbal's name and date of birth, and had appropriated Iqbal's passport, inserting in it a photograph of himself, before coming to this country masquerading as Iqbal. Mahmood sought a writ of habeas corpus, claiming that the only route by which he could be deprived of nationality was under s20 of the 1948 Act, and until then he remained a British citizen.
19. Roskill LJ held that if Mahmood were the Iqbal in the relevant documents, the grant would probably have been valid, but it was not a grant to Iqbal since Iqbal was already dead. The grant was not to Mahmood since the SSHD did not know who Mahmood was. Therefore it was a grant to nobody and a nullity. Accordingly, s20 of the 1948 Act was of no avail, since that only applied to someone who was a citizen, and not to someone to whom the apparent grant had been a nullity.
20. After a reference to the "useful though…incomplete analogy" with void and voidable contracts, Roskill LJ continued at p61 F-G:

"I accept that in some cases it may be difficult to draw a dividing line in these cases between a registration which is a nullity and therefore void, as I think is the case with the present registration, in which case the alleged citizen by registration cannot bring himself within section 20 (1) at all, and a registration which is only voidable, in which case the machinery of section 20 (2), (6) and (7) has to be invoked to the exclusion of the relevant provisions of the Act of 1971. Mr Woolf accepted that it was not easy to formulate a dividing line between the two classes of case. I agree, but wherever that line is drawn, I am clearly of the view that the instant case is one in which the alleged British registration was a nullity."

21. Geoffrey Lane LJ held that it was impossible to see how the assumption of the dead man's identity could mean that Mahmood, any more than the dead Iqbal, could have become a UK citizen.
22. Stephenson LJ was more circumspect. He was of the view that the language of s20(2) appeared wide enough to cover fraud by impersonation, and such fraud could have been expressly excluded from its operation had Parliament so intended. However, he accepted the conclusion that on "the assumed facts, his fraud was so thorough-going as to take him over the dividing line referred to by Roskill LJ and to keep him outside the section altogether."; p64C.
23. The next relevant decision is R v SSHD ex p Parvaz Akhtar [1981] QB 46, also decided before the British Nationality Act 1981. The applicant had been admitted to the UK as the infant son of Waris Ali, who had become settled here and a UK citizen. He was now thought to be Abdul Hamid, and not the son of Waris Ali, and it was thought that Waris Ali had either never existed or was someone other than the applicant. He became registered as a British citizen as Parvaz Akhtar, son of Waris Ali. Templeman LJ said that the effect of registration could not depend on the intent of the registrant. He continued at p53 D-E:

"The registration which was in fact effected was the registration of Parvaz Akhtar, son of Waris Ali. This registration applies to the applicant and is conclusive of the claim of the applicant to be patrial if, but only if, he is Parvaz Akhtar, son of Waris Ali. But the applicant has not proved that he is the person registered. The immigration officer believes and has reasonable grounds for believing that the applicant is not the person registered, but is Abdul Hamid, son of Noor Hussein and as such an illegal entrant. The registration was expressed to apply and could only apply to a person who was named or who called himself Parvaz Akhtar and was a son of Waris Ali. There was no power and no intention on the part of the registration authorities to register Abdul Hamid and no power or official intention to register any Parvaz Akhtar other than the son of Waris Ali. In order to rely on the registration the applicant must show that he answers to the description of Parvaz Akhtar, son of Waris Ali. He has not done this and has not shown that he is registered as a citizen of the United Kingdom and Colonies."

24. S20 did not apply so as to require deprivation proceedings where the fraud failed to procure the registration of the applicant as a citizen. It only applied to an admitted or proven citizen. If the applicant were proven to be the son of Waris Ali, but had fraudulently represented that Waris Ali was a UK citizen he would be entitled to the benefit of s20. Registration only protected the person described in the register. The Court treated itself as bound by Mahmood.
25. I should also mention two other cases. First, R v SSHD ex p Ejaz [1994] QB 496. Citizenship was granted to Iqbal, who in fact was Kamal, but who had been using Iqbal's passport. It was not disputed but that his citizenship was a nullity on the earlier authorities. Mrs Ejaz married "Iqbal", and was then granted citizenship in the ground that she was the wife of "Iqbal", whose false claim to nationality had not yet been discovered by the SSHD. Her citizenship was held not to be a nullity even if she had known of "Iqbal's" fraud. The SSHD argued unsuccessfully that he had no power to grant her naturalisation on the grounds of marriage to a British citizen, if the person she was married to was not a British citizen, because his purported citizenship had at all times been a nullity. She had become a British citizen by virtue of s42(5) of the 1948 Act, since it was the certificate which conferred citizenship status, and she had not failed to acquire it although she lacked the necessary statutory attribute of marriage to a British citizen. The necessarily broader view of what falsehoods could lead to nullification left little for s40 logically to bite on. She did not misrepresent her identity.
26. This in essence is the distinction between Ejaz and Akhtar: the person naturalised did not make false representations about their identity; the person registered or to whom the certificate of naturalisation was granted answered the description of the person registered or in the certificate in the former case but not in the latter.
27. Untrue representations about other necessary attributes, that is the British citizenship of those from whom the qualifying relationship derived, whether deceitful or innocent, would lead to deprivation but not to nullification - in Ejaz, marriage to a British citizen, and in Akhtar, see the obiter comments of Templeman LJ at pp54-55, being the registered child of a British citizen. If there had been deceit about the very fact of marriage or about the very fact of filial descent, that could have led to a different result.
28. In Tohura Bibi and Others v ECO Dhaka [2007] EWCA Civ 740, Wilson LJ, with whom Sir Mark Potter P and Sedley LJ agreed, had to consider whether the widow and children of a person whose entry was gained by the fraudulent use of another's identity, leading to registration as a British citizen in that assumed identity after years of residence here, had a right of abode. He said in paragraph 20:

"In my view the decision in Naheed Ejaz is a useful reminder of the limited circumstances in which the verdict of the law is that citizenship never existed. Without having made any misrepresentation about her own identity the applicant in that case had successfully applied for a certificate of naturalisation. In her application, whether knowingly or otherwise, she had made a false representation, namely that her husband was a British citizen, which exposed her to the risk of being deprived of her citizenship. Until deprived of it, however, she was a British citizen because the certificate had been granted to her in the name of herself rather than in that of another. If, in the present case, the appellants had already obtained registration in their own names as British citizens or had already secured a grant of certificates of naturalisation in their own names as such citizens, even if only by virtue of their having falsely claimed that Mr Jabbar, their late husband and father, was a British citizen, they would have been British citizens albeit at risk of deprivation."

29. The wide language of s20(2) of the 1948 Act continued in s40(1) of the British Nationality Act 1981, in its amendments effective until 31 March 2003, and in s40(3) thereafter as a result of the Nationality, Immigration and Asylum Act 2002. For the sake of completeness, this then read:

"(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of-

fraud,

false representation, or

concealment of a material fact."

Citizenship status included being a British citizen.

30. S40A of the 2002 Act granted a right of appeal against a deprivation order to the First tier Tribunal, in its various guises, instead of an application to a committee of inquiry.
31. The British Nationality (General) Regulations SI No 548/2003 provided in Schedule 4 for the form of a certificate of naturalisation. This was in force between 2003 and 2007, when all the naturalisations at issue were granted. The form had to state:

"The Secretary of State, in exercise of the powers conferred by the British Nationality Act 1981, hereby grants this certificate of naturalisation to the person named below, who shall be a British citizen from the date of this certificate.

Full name

Name at birth if different

Date of birth

Place and country of birth"

32. Regulation 7, as currently in force, is not materially different save that name at date of birth is not required as part of the "information relating to the person to whom the certificate is granted."
33. Particular importance was attached by Ms Chan to R (Kadria) and R (Krasniqi) v SSHD [2010] EWHC 3405 (Admin), HHJ Allan Gore sitting as a Deputy High Court Judge. It was the most recent decision on nullification. The SSHD has attached weight to it in her approach and decisions. Mr Knafler submitted that it went beyond the earlier decisions of the Court of Appeal and should not be followed to that extent, if those earlier decisions were still binding. Both were Albanians who falsely claimed to be refugees from Kosovo. Both used false names and dates of birth, to support false claims that they were minors. Both obtained ILR on those false bases, and eventually obtained naturalisation on those false bases. One persisted in the use of false documents.
34. HHJ Gore accepted that there was a limited category of case in which the SSHD was entitled to treat the grant of nationality as a nullity, and which involved no exercise of executive discretion. He rejected the suggestion that there was a distinction between the effect of a false claim to be another real person and a claim to be someone who in fact had never existed or did not now exist. At paragraph 32, he said:

"I do not understand and cannot see a justification for a distinction that asserts that, where what is in issue is the false adoption of attributes and status so as to obtain entry into and settlement in the United Kingdom, there is a material difference between falsely adopting an identity that either does exist or once existed and adopting one that never existed. If that distinction had merit, the fraudulent could obtain advantage simply by the device of ensuring that they pretended to be a fictitious person rather than pretending to be a real one. In my judgment, that cannot be right when what is at issue is the false claiming of the attributes and the status. I am fortified in that view by the fact that in Akhtar it was neither clear nor found whether the person who the appellant claimed to be had ever existed or not, and that it was clear that the answer to the question made no difference (see the judgment of Templeman LJ at page 50F)."

35. He also distinguished those forms of impersonation from the adoption of a pseudonym.
36. In paragraph 33 he drew seven principles from the cases:

"(1) where an application is made for the grant of citizenship using fraud, false representation, or concealment of material fact, that may be treated as a nullity.

(2) whether, in the circumstances of an individual case, it should be treated as a nullity is a question of fact and degree.

(3) where person A with attributes A represents himself to be person B with different attributes B and thereby obtains a grant to person B, the grant to A may be a nullity, in which case, the grant has and had no effect in law.

(4) where, however, the application is by A who has attributes A and the grant is to A who in fact has attributes B, the grant may remain effective or may be a nullity depending on the nature, quality and extent of the fraud, deception or concealment. This is in fact illustrated by the facts of Arusha, presently pending before the relevant Immigration and Asylum Tribunals, where the defendant had in fact accepted the validity of the grant, but invoked the statutory deprivation procedure to secure removal of citizenship.

(5) a grant of citizenship for the purposes of section 10 of the 1981 Act is intended to be made to the identity with the attributes in respect of which the application is made.

(6) identity with claimed attributes are therefore material averments.

(7) as a result, when person A with attributes A represents himself to be person B with attributes B and thereby obtains a grant to person B, the grant to A either is a nullity in law, or alternatively is capable of being treated as such in the circumstances by the Secretary of State."

37. When he applied those propositions to the two cases before him, he pointed to various aspects; (I cannot reconcile his comments as to some of the facts of deceptions with his fuller statement of the individual facts at paragraph 34 (b) and (c)). But the ones which illustrates the difference between the parties here are: false representation as to minority or majority; and:

"d) personal and domestic circumstances, in that they represented themselves as refugees in fear of ethnic persecution; (e) in both cases there was not one deception but a series of them over time, on presentation, in submitted statements, and at interviews; (f) the deceptions were not for one but for several purposes, namely entry, seeking indefinite leave to remain, seeking British citizenship and, in Kadria's case, seeking a British passport."

38. Permission to appeal was refused at a hearing by Sullivan LJ, on a narrower basis than HHJ Gore's decision itself. He pointed to the "wholly false identities" assumed in name, age, adulthood or minority, nationality "and a vital characteristic, that is to say, as to whether they were refugees." This decision, [2011] EWCA Civ 696, carries no authority. But the point made by Sullivan LJ at paragraph 7 summarises the impersonation point well in language which I adopt, because it reflects my own thinking as to what impersonation in this context amounts to:

"The plain fact of the matter is that citizenship was not given to two adult Albanian citizens, Villion and Laurent Cakollari, who were born in 1978 and 1976 respectively; it was granted to Kosovan refugees who were called Villion Krasniqi and Rouland Kadria, who were minors born in 1981."

The basis for nullification of citizenship

39. I accept some of Mr Knafler's submissions about this concept but not all. Nullification leaves no room for the exercise of any discretion: the grant either is or is not a nullity, with whatever consequences may flow for the individual and for relatives and dependants, innocent or otherwise, and however long after the deceit. The BNA 1981 provides by contrast for deprivation of nationality in wide terms, which in the words "may by order deprive" includes a discretionary judgment by the SSHD. It provides an appeal route against an adverse decision, which also enables the exercise of that discretionary judgment to be considered, so that for example, the effect on relatives and dependants, and of the passage of time and delay by the SSHD in taking action can be taken into account. Deliallisi v SSHD (British citizen: deprivation appeal: Scope) [2013] UKUT 00439 (IAC) illustrates that point. There is good reason, in my judgment, to take a narrow view of those cases which cannot fall within the scope of the statutory provisions for deprivation of nationality. I have no difficulty understanding why Stephenson LJ said what he said in Mahmood.
40. However, I do not regard the substitution of the appeal for the role of the committee of inquiry as a sufficiently significant and clear legislative basis for regarding the decisions of the Court of Appeal, on their true ratios, as no longer binding. There is no reason either however for extending them beyond their proper limits. The fundamental right of access to the Court in respect of executive decisions is maintained through judicial review; that does not require that a merits appeal be available. That can allow for consideration of human rights to the extent engaged; see my decision in AHK and Others v SSHD [2013] EWHC 1426 (Admin), paragraphs 41-48, albeit on refusals to grant naturalisation, earlier stages of which were referred to by the Claimants. In the light of the acceptance by the SSHD of the lack of consequence for the nationality of the children born in the UK, and on ILR, there has been no argument in these cases that their human rights were engaged by nullification in a way which could require a changed approach now. The agreed consequences for the children of Hysaj and Kaziu, if they were British citizens, could give rise to human rights issues.
41. I am satisfied that I am bound to hold that there is a category of case where the grant of nationality is a nullity, even though obtained by fraud, with the effect that the person has no right of appeal since he is not being deprived of "citizenship status obtained as a result of registration or naturalisation". It is simply being pointed out to him that he never obtained it at all, and that the apparent grant is to him no grant at all. He could not be deprived of that which he had never obtained at all. The decisions of the Court of Appeal do make it clear that it is only in a limited class of cases that nullification can apply.
42. I turn to consider the narrow category of cases to which nullification can apply. In my view, it comes down to what can be summed up in the word "impersonation", though that begs some questions. It obviously relates to the individuals who made the false representations about their own identity.
43. What underlies the Court of Appeal decisions is the concept that X cannot obtain nationality by fraudulently claiming to be Y. The way Sullivan LJ expressed it in Kadria and Krasniqi above, captures the essence of the point. However, what that case did not have to deal with, and none of the other cases did either, is precisely what is it that makes the grant to X not the grant to Y. What aspects of the person have to be false to create a nullity, given that fraud and falsehoods in the application do not of themselves do so, since they are the very essence of deprivation proceedings? The Court of Appeal gave no guidelines, apart from saying that it was obvious when they were crossed, and they were crossed in Mahmood and Akhtar.
44. Although I agree with the result of HHJ Gore's judgment in Kadria and Krasniqi, I consider that his approach was too broad, as to how in practice a case of nullification was to be distinguished from a case of deprivation. His listed factors do not sufficiently distinguish between nullification and deprivation; the question is not one of degree, nor of the nature, quality, extent or frequency or circumstances of the deceit, in the broad way he suggests. Although he is right that it is the attributes of the person which matter, those attributes have to be carefully defined; it is not just any matter which can be described as an attribute of a person or of his identity which matters in this context, since that blurs or removes the crucial distinction between nullification and deprivation. For example, sexuality may be core to personal identity in one sense, yet a false story of sexuality leading to persecution does not go to identity for naturalisation purposes.
45. I did not gain assistance in this context from contractual cases dealing with identity. Ms Chan referred me to Shogun Finance Ltd v Hudson [2003] UKHL 62, especially at paragraphs 120-122 and 125 in the speech of Lord Phillips. What I have concluded is not inconsistent with what he said, but that does not really grapple with the question of what it is about a person which makes him not the person whom the contract was intended to be with.
46. The key characteristics of identity in this context, to my mind, are name, date of birth, and nationality, or country and place of birth, if the latter is used instead of the former. This reflects the information on the certificate, and the basis upon which the earlier cases were decided. These are necessary ingredients for the SSHD to check the identity of someone who seeks naturalisation. Mr Knafler's suggested distinction between falsely using the identity of a real person, dead or alive, and falsely using a fictitious identity, in which only the latter created a nullity of the naturalisation is not rational. It is not supported by authority, and has been rejected whenever raised.
47. It is also clear that the grant has to have been obtained by fraud. So not uncommon innocent errors in the detail of date of birth, perhaps of name, or the innocent use of pseudonyms, misunderstandings as to nationality, or country and place of birth do not make a nullity of citizenship. The fraud must also have been material to the grant.
48. The agreed position of Secretary of State and Claimants is that the question of whether a grant of citizenship is a nullity is a question of precedent fact, or simply fact, for the Court, and not one for the reasonable judgment of the SSHD. It is not enough for her to say that she has reasonable grounds for concluding that X obtained nationality by impersonation and so it is a nullity. If disputed, she has to prove it and the Court has to find that that was so as a matter of fact. No case directly addresses the issue; the contrary assumption appears in what Templeman LJ said in Akhtar, but the agreed position is correct in my judgment. It is a question of precedent fact since otherwise the SSHD has no power to hold that a certificate is a nullity. The existence of the state of affairs which carries that power is not one for her reasonable determination.
49. Accordingly I conclude that Bakijasi's naturalisation is a nullity because the grant was to Agron Adjini, born on 22 October 1980 of Kosovan, or Federal Republic of Yugoslavia, nationality, and not to Agron Bakijasi, born on 22 October 1972, of Albanian nationality.
50. More difficult are the other two cases, since in Hysaj, one, and in Kaziu, two, of the crucial characteristics was correct. However, it seems to me that the three are interlocking characteristics. A false name but correct date of birth or nationality cannot identify the person who receives the grant as who he says he is. The correct name and date of birth cannot identify the application as who he says he is if he gives the wrong nationality. Any of those aspects may be irrelevant in the context of other applications, but to my mind in this context each together identifies the person who applies for and receives the grant. It is to be remembered that these are aspects which do not lead to nullification unless material and given deceitfully.
51. Accordingly, Hysaj, born on 20 December 1977 of Kosovan nationality, is not Hysaj, born on 20 December 1981 of Albanian nationality. The grant was to the former and no grant has been made to the latter. Kaziu, born on 14 April 1981, of Kosovan nationality, is not Kaziu born on 14 April 1981 of Albanian nationality.
52. I would add, though it does not arise here and the point was not argued, that I consider that there is a further factor: where the basis of naturalisation is relationship to a person, it does seem to me to be crucial to identity in this context, that that relationship actually exists. So X, child or wife of Y, must be the child or wife of Y, though it does not matter for nullification as opposed to deprivation whether the status of Y is correctly given. It is the relationship which is crucial to a person's identity in this context.
53. Ms Chan put some weight on the fact there were other deceits which went with the false identity, in particular the making of a false claim for refugee status, and false claims for ILR. That goes too far. The false asylum claim is not a factor which goes to identity for the purpose of nullification; that is a matter for deprivation proceedings. The fact that a false date of birth may in some cases mean that a person falsely claims to be a minor and in other cases does not, makes no difference, to my mind. It is the false date of birth which matters for identity and not the precise age or status as minor or adult which is claimed at the outset, and which as the years go by becomes irrelevant to the continuing false identity. The test is not whether there was a lie on a matter important to the asylum claim or nationality application.
54. Accordingly, subject to Mr Knafler's next point, the naturalisations of all three Claimants are nullities.
55. There is a problematic area over the effect of the nullification of a person's nationality on those who have acquired nationality, whether knowing of the deceit or not, deriving from their relationship to that person. The parties' agreed position distinguishes the effect of nullification on the children of Bakijasi, by registration and by birth, and the effect on citizens by descent not requiring registration. There appears to be from Akhtar, Ejaz and Tohura Bibi a clear recognition that nullification should not be extended readily to nullifying derivative citizenship. But there is no clear and logical dividing line. The decisions more obviously seek a pragmatic limit to the logical effects of the nullification of citizenship on dependants. Such a pragmatic approach befits giving limited scope to nullification and a wide right of appeal in respect of deprivation. If nullification survives, as I hold it does, this case by case pragmatism leads to uncertainty in application of the concept and is unsatisfactory. Either nullification of one citizenship should nullify the citizenship of those whose citizenship had depended on its validity, or it should go no further than the impersonator's citizenship. Half-way pragmatism, which may or may not apply to a given case, simply illustrates the difficulty of the concept.

The effect of the grant of Indefinite Leave to Remain

56. Mr Knafler submits that as each of the Claimants was granted ILR, the persons to whom certificates of naturalisation were granted were the people to whom ILR had been granted and who continued to enjoy it. It is not contended that these grants of ILR are nullities, even though they may be revoked. The only statutory requirement each had to satisfy was satisfied. This is not a point which has been raised in other cases.
57. S6(1) of the BNA 1981 applies to each Claimant, and provides as follows in relation to the acquisition of naturalisation:

"(1) If, on an application for naturalisation as a British Citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."

58. Schedule 1 sets out the requirements for naturalisation as a British citizen, which so far as material here are in paragraph 1 that (a) the requirements in sub-paragraph (2) are met, and (b) that the applicant be of good character. The relevant requirements of sub-paragraph 2 are (c) that at no time in the 12 months ending with the date of application was the applicant "subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom", and "(d) that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws".
59. The requirement in (c) is met by the fact that each Claimant here had the benefit of a grant of ILR for a period greater than one year before his application. The requirement in (d) has a specific definition in s11 of the 2002 Act, although paragraph 2 of Schedule 1 permits the SSHD to treat an applicant as fulfilling the requirements of paragraph 1(2)(d) even if he were here "in breach of the immigration laws" during the relevant five year period.
60. S11 of the 2002 Act, as in force at the relevant times, provides:

"(1) This section applies for the construction of a reference to being in the United Kingdom "in breach of the immigration laws" in section 4(2) or (4) or 50(5) of, or Schedule 1 to, the British Nationality Act 1981 (c. 61).

(2) A person is in the United Kingdom in breach of the immigration laws if (and only if) he—

(a) is in the United Kingdom,

(b) does not have the right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971,

(c) does not have leave to enter or remain in the United Kingdom (whether or not he previously had leave)."

61. The section then provided for other ways, immaterial here, in which a person may be in the UK in breach of the immigration laws. Although this definition applied to circumstances arising before 2003, I do not know whether there was any earlier statutory definition of being here "in breach of the immigration laws." I see none in the BNA itself, as originally enacted.
62. There were changes to the BNA between the dates of naturalisation of Hysaj and Kaziu in 2004 and 2005 and Bakijasi in 2006 but they are not material. Section 11 of the 2002 Act is now to be found in s50A of the BNA 1981 as amended.
63. Two offences are relevant. It is an offence under s46 of the BNA 1981 for a person to make "a statement which he knows to be false in a material particular" for the purpose of procuring anything to be done or not done under the BNA. It is also an offence under s24A of the Immigration Act 1971 as amended for a person who is not a British citizen "if, by means which include deception by him he obtains leave to enter or remain in the UK" or secures the avoidance or revocation of enforcement action, such as directions for his removal, against him.
64. I accept that, on the facts as understood by the SSHD at the time of the grant of naturalisation, each must have had 5 years' leave to enter or remain when they applied for naturalisation. They would not have qualified for naturalisation anyway if that had not been the case. As Mr Knafler said, each application for ILR, and indeed for naturalisation, involved the commission of an offence. But, the SSHD did not contend that this nullified the grant of ILR or earlier leave to remain. The grant continued to be effective. The fact that they obtained such leave by deceit, and through the commission of an immigration offence, did not mean that they were in the UK "in breach of the immigration laws" as specifically defined, because that was not said to have affected the continuing in force of the ILR or earlier leave. They were not present in the UK in breach of the immigration laws, in that specific sense, simply because the ILR might be revocable.
65. Accordingly, submitted Mr Knafler, each satisfied the requirements of Schedule 1 and thus of s6 of the 1981 Act. Each was therefore entitled to be naturalised as complying with the Act, and that was all that mattered on the application. The argument over identity had been overtaken by the operation of the statutory requirements. Put another way, the grant of naturalisation was intended to be to the person who had ILR, by whatever name or other personal details he was known or identified. There was no logic, and much that was undesirable about the operation of the statutory system for the grant of naturalisation, if deceit over identity led to nullification for the one but not for the other, which itself underlay the very grant in the first place. The SSHD had the power in Schedule 1 paragraph 2 to the 1981 Act to treat someone as satisfying the requirement not to have been here in breach of the immigration laws even though in fact she had not done so, which showed the intended flexibility of the statute and undermined the argument that there existed one type of failure which led to nullification, and which must therefore fall outside the waiver provisions.
66. Ms Chan submitted that the Claimants were in breach of the immigration laws, which is true in a general sense but not correct, in my judgment, in the specific statutory sense.
67. She also submitted that the necessary quality of being of "good character" was self-evidently missing in view of the repeated deceits necessary to bring them to the stage of making an application for naturalisation. Applicants should not be entitled to rely on their own wrongdoing. I regard it as plain that the catalogue of deceit prevents the Claimants saying that they were of good character. But the consequence of an individual being discovered not to be of good character, as a result of deceit, is that he may be deprived of his nationality; he can appeal and may win or lose. The issue however was as to the form which any response by the SSHD to this deceit by the Claimants could lawfully take. It does not refute the analysis of the statutory provisions put forward by Mr Knafler, nor support the contention that deceit as to identity leads to nullification.
68. There is no very satisfactory answer to Mr Knafler's submission. It applies the language of the Act of 1981, its specific requirements, and its specific definition of being in the UK "in breach of immigration law". It reflects the waiver power, which is inapplicable to nullification. It enables deprivation proceedings to take place with its appeal against the decision on fact and on discretion, which can cope with the position of third parties, the passage of time and delay, and possible human rights issues. There is no need for the Courts to define a group of cases outside the Act but for which the statutory regime, seemingly comprehensively expressed, has not provided, or apparently even contemplated.
69. It may be of course that the SSHD logically ought to develop the concept of nullification for ILR on the same basis, but she has set her face against that. The logic of the position she must contend for is distinctly odd, given that precisely the same deceit nullifies the later but not the earlier status.
70. I am also troubled by the fact that the SSHD can inform an individual that deprivation proceedings are unlikely although he obtained his nationality by nullifying deceit, and then some years later, at a time of her choosing, and not subject to any time limits such as those which would apply if she had to seek judicial review, announce to him that he is not a British citizen, that the grant she has made and the certificate he holds are nullities, leaving him to take judicial review proceedings to challenge the asserted ineffectiveness of a seemingly valid document. All that had happened the while is made irrelevant to his position. Without the earlier decisions, I would have agreed with Mr Knafler and quashed the purported nullification.
71. Nonetheless, I do not think that, on Mr Knafler's submission, I can distinguish the well-established jurisprudence of the Court of Appeal, at least one case in which was decided after the 1981 Act so far as material assumed its present form. I cannot hold that the concept of a naturalisation void for impersonation died no later than 2003. Those decisions also have an undeniable force, applied to the circumstances they considered, and I have sympathy with the concept that it is objectionable for someone who obtains naturalisation as X to take advantage of it as Y, to be able to appeal against that truth being pointed out, and to ask a court to exercise its discretion to give effect to such a fraud.

Conclusion

72. For the reasons which I have given, I am unable to conclude that I should distinguish the decisions of the Court of Appeal, powerful though Mr Knafler's submissions were. The Court of Appeal may feel that it should now distinguish its earlier decisions in the light of this new point raised by Mr Knafler. In my judgment, however, the naturalisation of each Claimant is a nullity.