Law Report: British citizenship remains valid: Regina v Secretary of State for the Home Department, Ex parte Ejaz. Court of Appeal (Lord Justice Balcombe, Lord Justice Stuart-Smith and Lord Justice Peter Gibson), 3 December 1993

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A certificate giving a person naturalisation as a British citizen remains valid until the Home Secretary deprives the person of British citizenship under section 40 of the British Nationality Act 1981 on the basis that it was obtained by fraud, false representation or concealment of any material fact.

The Court of Appeal allowed an appeal by the applicant, Naheen Ejaz, from Mr Justice Hutchison's dismissal of her application for judicial review of the Home Secretary's decision that she was an illegal entrant.

In 1987, the applicant applied for naturalisation as the wife of a British citizen. In 1990, the Home Secretary granted the applicant a certificate of naturalisation as a British citizen under section 6(2) of the British Nationality Act 1981. She travelled with a British passport in 1991. The Home Secretary then discovered that her husband was not a British citizen. The Home Secretary contended that the applicant's naturalisation was a nullity and since she had not obtained leave to enter to enter the United Kingdom in 1991, she was an illegal entrant and liable to detention and deportation.

Ian MacDonald QC and Frances Webber (Griffiths Robertson, Reading) for the applicant; David Pannick QC and Alison Foster (Treasury Solicitor) for the Home Secretary.

LORD JUSTICE STUART-SMITH said that the requirements for acquisition of British citizenship by naturalisation under section 6(2) were set out in Schedule 1. A person who had acquired British citizenship by registration or naturalisation could be deprived of his citizenship under section 40 as a result of conduct that led to the grant of registration or naturalisation, or because of certain conduct thereafter. Section 42(5) provided that a person to whom a certificate of naturalisation had been granted 'shall be a citizen' from the date on which the certificate was granted.

Mr Pannick submitted that under section 6(2), three matters had to be established before the Home Secretary had power to grant a certificate, namely that the applicant was of full age, was of full capacity and was married to a British citizen, and if any of those matters were not correct, the certificate was a nullity.

Mr MacDonald submitted that the applicant remained a British citizen by virtue of the certificate unless she was deprived of it under section 40.

Mr Pannick's construction could not be accepted. It failed to give effect to section 42(5). That made plain that it was the certificate which conferred the status of citizenship and that citizenship commenced on the date of the certificate. That construction was contrary to the views expressed in R v Secretary of State for the Home Department, Ex p Akhtar (1981) QB 46.

It would lead to much greater uncertainty and could lead to great injustice. The uncertainty arose because if at anytime a precedent fact was discovered to be incorrect, no matter how long after the registration or naturalisation, the effect would be as if the registration or naturalisation had never been granted. That affected the status of others, such as children.

Great injustice could be done. However innocent the mistake might have been, for example if there was error in relation to age, the registration or naturalisation was null and void.

Section 6(1) and (2) empowered the Home Secretary to consider both whether the applicant fell within the category of persons identified and whether the specific requirements were satisfied.

Once a person had been registered or granted a certificate of naturalisation, the person was a British citizen unless and until he was deprived of that status under section 40. Jurisdiction to deprive him arose under section 40(1) if the Home Secretary was satisfied that the registration or certificate of naturalisation was obtained by fraud, false representation or concealment of any material fact.

Lord Justice Balcombe and Lord Justice Peter Gibson concurred.