Deprivation of British Citizenship: Case Highlights Procedural Requirements and Discretion of the Secretary of State

Citation: [2023] UKUT 294 (IAC)
Judgment on


The Upper Tribunal (Immigration and Asylum Chamber) case of Gjelosh Kolicaj v Secretary of State for the Home Department ([2023] UKUT 294 (IAC)) delved into the intricacies associated with the deprivation of British citizenship under section 40(2) of the British Nationality Act 1981. The case underscores procedural requirements, the exercise of discretion by the Secretary of State, and the impact of such a deprivation on the rights of individuals under the European Convention on Human Rights (ECHR), specifically Article 8.

Key Facts

Gjelosh Kolicaj, an Albanian-born British citizen, was deprived of his British citizenship following a conviction for serious organised crime involving money laundering. The Secretary of State reached this decision without prior notification to Kolicaj, on grounds it was “conducive to the public good.” Kolicaj appealed the decision, leading to initial dismissal by the First-tier Tribunal (FtT). The main contention on appeal was whether the ‘minded-to’ procedural step was a necessary part of fairness before reaching a decision and secondarily, if other material considerations were properly taken into account.

The tribunal scrutinized several legal principles:

1. Section 40(2) of the British Nationality Act 1981:

The provision states the Secretary of State may deprive a person of citizenship if it is “conducive to the public good.” The principle emphasizes discretion and necessitates the Secretary of State to affirm this precondition before proceeding.

2. Procedural Fairness:

Established in R v Secretary of State ex p Doody ([1994] 1 AC 531), which states that fairness normally requires prior notification to individuals of potential decisions affecting their status to make representations. This maxim aligns with Balajigari v Secretary of State for the Home Department ([2019] EWCA Civ 673) outcomes, which underscore the obligation to afford individuals the opportunity to contest allegations or decisions leading to the deprivation of rights.

3. Discretion and Material Error of Law:

Per Ciceri ([2021] UKUT 00235) and Chimi ([2023] UKUT 00115), a two-stage approach in deprivation cases is instituted; an analysis if the statutory condition is satisfied, followed by discretionary considerations in light of all circumstances. If public law errors are found arising from the discretion exercise or consideration of foreseeably pertinent matters, an appeal may stand.

4. Future Risk of Re-offending:

Pham v Secretary of State for the Home Department ([2018] EWCA Civ 2064) addressed that the Secretary of State is not mandated to consider the risk of future harm when assessing if a person’s citizenship deprivation is conducive to the public good.

5. Article 8 of ECHR:

Article 8 rights were implicated due to the deprivation of citizenship potentially affecting private and family life. The decision was required to navigate these implications with the proportionality and necessity principles.


The appeal was allowed on the following grounds:

  • The Secretary of State erred in law by not exercising the discretion required under section 40(2) after establishing the condition precedent.
  • The deprivation decision, which denied Kolicaj the opportunity to make representations, was deemed justifiable due to the risk of him rendering himself stateless to frustrate the process.


The judgement in Kolicaj v Secretary of State for the Home Department is a testament to the critical balance between state interests in ensuring public good and the procedural rights of individuals. It clarifies that the Secretary of State must consider a range of factors after determining conduciveness to the public good, exercising discretion accordingly. Furthermore, procedural fairness may give way under specific conditions where giving an individual the opportunity to respond would frustrate the process. This case thus sets a significant precedent for the discretion and procedural propriety involved in citizenship deprivation cases in the UK.

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