Any British citizen that happens to hold citizenship for another country could find themselves in an invidious position. If the Home Secretary decides that it would be ‘conducive to the public good’, they can single-handedly strip a person of their citizenship, and with it, their right to remain in the country. So long as the deprivation would not make them stateless, the law offers few protections beyond a limited right of appeal and the need for the Home Secretary to have some reasons.

Shamima Begum is the most high-profile victim of this power, with her ostensible possession of Bangladeshi citizenship meaning she still languishes in a detention camp in Syria. But she is not the only citizen to find themselves cast out of the British state, even if she might be an exemplar of the power’s flagrant abuse. Over the course of the last decade, Home Secretaries began to turn to the power, contained in section 40(2) of the British Nationality Act 1981, more often. From 2010 to 2015, the numbers trundled on at a less than remarkable rate, with fewer than ten deprivation orders for the ‘public good’ made each year. But after the emergence of Islamic State, the rate almost tripled, from 5 in 2015 to 14 in 2016, before rising exponentially in 2017, when the Home Secretary made 104 orders. Since the threat of Islamic State has receded, so too have the numbers. Between 21 orders were made in 2018 and 27 in 2019, before they dropped to 10, 3 and 2 in the years that followed. Yet as a recent case before the Court of Appeal, Secretary of State for the Home Department v Kolicaj, shows, it is a power that is still being used, and abused.

In this endeavour, the courts have tended to be willing collaborators. Despite the fact that the power was extended in 2003 so that native-born citizens as well as naturalised citizens could have their citizenship removed, the courts have been wary of interfering with a Home Secretary’s deprivation orders. Refusing to let British citizens return to the UK, even if it is because they abandoned the UK to fight for Islamic State, and even if they have no other country to turn to, has been found to be well within the British state’s power.

This was one of the Supreme Court’s conclusions in Pham v Home Secretary, handed down in 2015. Pham Ming Quang, a British-Vietnamese national, challenged the Home Secretary’s decision to strip him of his British citizenship after the security services notified her that he was suspected of terrorist activities. He claimed that the fact the Vietnamese government had refused to acknowledge his citizenship left him de facto stateless, contrary to domestic and international law. The Supreme Court had none of it. Pham was a native Vietnamese national who had only gained British citizenship in 2011, and who was since suspected of travelling to Yemen to train at terrorist training camps. Vietnam’s government tried to strip him of his citizenship, abjuring their responsibilities, but the Supreme Court unanimously held that it had done so without following Vietnamese law. As a matter of law, Pham was still Vietnamese. He might have been de facto stateless, but he was not de jure stateless. And that was what counted.

Pham may have been a defensible decision, but the judgments of the Supreme Court since then have widened the goalposts for the Home Secretary’s. After Begum was stripped of her citizenship by Sajid Javid in 2019 (for reasons that still seem more rooted in political expediency than national security), she challenged it before the Special Immigration Appeals Commission (SIAC), established in 1997 to hear cases on deportation and citizenship that relate to national security. Much like Pham, she argued that Javid’s decision left her de facto stateless. Unlike Pham, she argued that she did not have joint British-Bangladeshi citizenship, but only the potential right to Bangladeshi citizenship. Bangladesh’s laws may have entitled her to citizenship through her parents, but so far as Bangladesh was concerned, they had no idea Begum existed until Britain tried to rid itself of its turbulent child-bride. Absent her parents, she had no ties to Bangladesh, never having set foot on Bangladeshi soil. But this, too, SIAC concluded was within the Home Secretary’s authority. Bangladeshi law meant that her citizenship to the country existed as a matter of fact. The fact that the Bangladeshi government declaimed any responsibility, indeed threatened to hang her if she was brought there, was unfortunate, but not the concern of the law and so, the courts.

Over the course of the next four years, Begum continued to challenge and to lose to the government in the courts. The Court of Appeal offered brief respite in 2020, holding that she had the right to return to the UK to challenge the Home Secretary’s order, but this hope was extinguished by the Supreme Court a year later, when the justices reversed the Court of Appeal. SIAC turned down her appeal against the substance of the decision in 2023, which was confirmed by the Court of Appeal, before the Supreme Court brought the curtain down on her domestic challenges last year, refusing her permission to appeal on the basis that her case did not raise ‘an arguable point in law’.

It was the consequences of the Supreme Court’s decision in Begum v SIAC in 2021 that were at broader issue the Court of Appeal’s decision in Kolicaj. In Begum, the Supreme Court concluded that Begum was not entitled to bring fresh evidence in her appeal before SIAC. Her appeal was supposed to rest upon an error in law made by the court in first instance, rather than because she had new evidence or new legal arguments. Only if the appeal is concerned with violations of a citizen’s human rights can the reviewing court potentially ‘re-consider the matter de novo or to re-take the decision itself’. Deference instead must be paid to the decision-maker, and regard given to the fact that Parliament gave the potent power to strip citizenship to the Home Secretary and not to the judiciary.

For Gjelosh Kolicaj, this inability to bring new evidence before an appellate court placed him in a quandary. An Albanian national who had acquired British citizenship by naturalisation in 2009, he had been convicted of high-value money laundering in 2018 and sentenced to six years imprisonment. Three years into his sentence, shortly before he would be eligible for release on licence, he was served with a deprivation order. It commanded that he ‘be deprived of his British citizenship on the grounds of conduciveness to the public good’ and that the ‘Secretary of State is satisfied [he] will not be rendered stateless by such action’.

Before this order was handed to him in prison Kolicaj had barely thirty minutes notice that the Home Secretary, then Priti Patel, was considering stripping him of British nationality. Nor, as would be crucial before the Court of Appeal, did he have any opportunity to plead his case. Yet by virtue of Begum v SIAC, he would be prevented from bringing any new evidence or giving reasons for why he should not be stripped of his citizenship before the appellate court. Instead of the Upper Tribunal being empowered to conduct a full merits review on appeal, which would allow it to hear new evidence, the Supreme Court’s decision has limited it to hearing a review only on standard public law grounds – that the decision made was beyond the Home Secretary’s jurisdiction, procedurally unfair, or substantively irrational. In Kolicaj’s case, this meant he had been stripped of his citizenship – perhaps for good reason – but had not been given any opportunity to tell his side of the story. And even Albanian money launderers are entitled to that.

There were reasons behind the Home Secretary’s reluctance to give Kolicaj the opportunity to make representations. After the sexual abuse scandal in Rochdale, a number of naturalised citizens had frustrated ‘deprivation and deportation by… renouncing their original nationality’ [para 13], ensuring that such any order would render them stateless. The Home Office’s solution was to no longer give notice, but to spring the order upon them. While comprehensible, the Court of Appeal archly observed that ‘surprisingly, this new practice does not appear to have been written down anywhere’ [para 14].

Turning back to the legislation, the Court of Appeal held that the 1981 Act ‘clearly indicate[s] a Parliamentary intention to place a high value on procedural fairness’ [para 27]. Denying any subject of a deprivation order the opportunity to make representations both before the decision is made and on appeal is to condemn them to Alice’s Wonderland. There might be good reasons why someone might be entitled to keep their citizenship, but if they aren’t given the opportunity to raise them before the decision is made, and if this estops them from raising them after the decision is made, the question is when such arguments can be made. (Even if, in Mr Kolicaj’s case, ‘it would be open to a rational decision maker to decide [he] has shown himself to be very dishonest and avaricious’ [para 18] and therefore the valid subject of a deprivation order).

Yet even though this decision went against the government, the Court left scope for the government and Parliament to limit procedural fairness in this context. The emphasis in the judgment was not on the fundamental character of citizenship and the need for it to only be stripped in the most egregious of circumstances and after a full and just process. Instead, it rested on the fact that the statute does ‘not expressly provide that there should be no right to make representations’, and nor does it ‘do so by implication either’ [para 27]. What hangs in the air is the implication that if Parliament wanted to empower the Home Secretary to disregard some aspects of procedural fairness, it could.

Given the growing hostility to migrants (and to some naturalised and British-born citizens too), it is not difficult to imagine this Parliament or the next passing legislation that gives the Home Secretary such a power. And even before that, if the government decides to challenge the Court of Appeal’s decision in Kolicaj, the Supreme Court’s track record in cases like Begum v SIAC means it is not difficult to imagine the Justices siding with the Home Secretary. The Rochdale grooming gangs are back in the news, and there is little to suggest that Starmer’s government is principled enough to refuse to take the easy win. What concern are the rights of undesirable nationals when set against a brief boost in the polls? In Pham, Lord Mance observed that ‘the status of citizenship is as fundamental in the common law as it is in European and international law’ and Lady Arden characterized it as the ‘right to have other rights’. If this government continues on the trajectory of its predecessor, the question will be if the Supreme Court is willing to put its money where its mouth was.

My thanks to Michael Gordon and Paul Scott for their valuable comments and corrections. Any errors are mine alone.

Nicholas Reed Langen writes on constitutional and legal affairs, is a 2022 re:constitution fellow and edits the LSE Public Policy Review.

(Suggested citation: N. Reed Langen, ‘The Use and Abuse of Citizenship Deprivation: SSHD v Kolicaj’, U.K. Const. L. Blog (6th February 2025) (available at https://ukconstitutionallaw.org/))