Yesterday (21st October), The Upper Tribunal reported the decision of Mujaj (Deprivation: children’s best interests) [2025] UKUT 00349 (IAC), in which the Tribunal set out the approach in a Deprivation Appeal when considering the lawfulness of the Secretary of State’s decision in relation to how someone’s children may be affected by the deprivation of their citizenship. It is the first reported decision in which consideration has been given to the extent and relevance of s.55/best interests assessment in deprivation proceedings to the exercise of the Secretary of State’s discretion when depriving someone of their citizenship.
The Tribunal undertook a considered assessment of the various authorities, concluding:
45. In an appeal against a decision taken under either section 40(2) or 40(3):
(i) The respondent’s exercise of the discretion conferred by the phrase “the Secretary of State may by order deprive a person” is subject to review on public law grounds. This is because the statute identifies the discretion as being exercised by the respondent and “because the grounds of appeal in section 40A of the BNA 1981 do not put the FTT into the shoes of the Secretary of State to exercise the discretion for itself.” Chaudhry at [51]. Section 40A does not specify any grounds of appeal at all, as acknowledged in Chaudhry at [45], and a court or tribunal has no power to exercise for itself a discretion conferred on a public authority unless that power is expressly conferred by statute (as was the case under section 84 of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”), until it was amended by the Immigration Act 2014). See: Begum at [66]-[68].
(ii) It is for the FTT decide for itself whether the decision is inconsistent with the UK’s obligations under the ECHR. Chaudhry at [52].
46. In an appeal against the deprivation of citizenship, a court or tribunal is in part reviewing the respondent’s decision on public law grounds. However, it remains an appeal, not a judicial review. One important way in which it is different from a normal judicial review is that the respondent may review her decision during the course of the proceedings. In U3 (Appellant) v Secretary of State for the Home Department (Respondent) [2025] UKSC 19 [20], Lord Reed noted that in SIAC section 40(3) appeals, the respondent keeps her national security assessment under review throughout the proceedings, and that this allows the appeal to be a “one-stop” procedure. He further observed that “[w]here what is at stake is citizenship, it would be undesirable to proceed in a piecemeal fashion, with the decision being quashed and remitted potentially more than once”. In the very different procedural context of an FTT appeal, the respondent may have conducted a Respondent’s Review of her decision in accordance with relevant Presidential Practice Statements. Subject to any concerns about procedural fairness in a particular case, the FTT should also take these reviews into account for the same reason.
…
49. When considering the impact of a deprivation decision on a person’s children, it is necessary to consider only the reasonably foreseeable consequences of the deprivation decision itself, and not the consequences of any subsequent decision about whether to grant a period of leave or require them to leave the UK. See: Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884. In most cases, this will mean that the only relevant consequences of deprivation will be those during the “limbo” period between the deprivation order coming into effect and the subsequent decision on leave to remain. There may be circumstances in which there will be significant consequences for children regardless of whether a parent is granted further leave, but those would need to be identified and cannot be presumed. There could, for example, be consequences of a parent being made stateless that would not come to an end with a grant of further leave, but that issue does not arise in this appeal.
50. In Hysaj at [117-118], the Upper Tribunal emphasised that “[s]ignificant weight is to be placed upon the public interest in a person who has obtained British citizenship through fraud, false representation or concealment of a material fact being deprived of that status” and expressed the view that where statelessness is not an issue, “it is likely to be only in a rare case” that the consequences of deprivation for an individual and their family will outweigh that public interest. Nonetheless, as in any decision regarding the best interests of children or article 8, an individualized assessment is still required. See, e.g.: Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10]. It would therefore be a mistake to apply the outcome of the balancing test in Hysaj as if it established a general rule that, for example, section 17 of the Children’s Act 1989 means that no detailed enquiry into the circumstances of any child in England is required before deciding whether depriving a parent of British citizenship is appropriate or proportionate. On the contrary, in reaching its conclusion dismissing the appeal in Hysaj, the Upper Tribunal considered a range of evidence about the family’s circumstances, including their mother’s right to work and employability, their accommodation, and the public benefits that would be available to them.
…
52. Where the tribunal is reviewing the respondent’s decision on public law grounds, by contrast, it cannot substitute its own decision for the respondent’s. In such a case, it will need to decide whether the respondent complied with her section 55 duty. This is a question of substance, rather than form. The respondent’s decision should not be treated as presumptively lawful simply because it refers to section 55, nor as unlawful because it fails to do so: CAO at [67]. Here, “the usual public law rationality test” applies. CAO at [90].
53. Without first establishing where in the decision-making process the best interests of a child was relevant, however, it will be difficult for a tribunal to assess the rationality or materiality of what the respondent did or did not do. This is because, as noted above, the section 55 duty “cannot be interpreted to require procedural steps to be taken which have no practical bearing on the matter which arises for determination”. CAO at [89] The respondent’s decision may not have clearly identified where section 55 was treated as relevant, either because the decision did not explicitly engage with the section 55 duty at all, or because it was addressed as a freestanding requirement, without an express link being drawn to the specific issues before the decision-maker. The latter is often the case, for example, in entry clearance decisions, which may contain a free-standing statement that “This decision takes into account as a primary consideration the best interests of any relevant child in line with section 55 of the Borders, Citizenship and Immigration Act 2009.
54. Bringing these various principles together, we consider that in a deprivation appeal affecting children, a tribunal must approach the question of the children’s best interests in the following way:
(i) First, it must identify whether the best interests of any child were relevant to any issue in the appeal. In a deprivation decision, the section 55 duty is mainly relevant to the exercise of discretion and to the article 8 assessment. Kolicaj at [37];
(ii) Second, it must identify which of those issues are to be determined by the tribunal according to public law principles;
(iii) Third, it must identify all of the respondent’s reasons for her decision, whether in the initial deprivation decision or in a subsequent review or reconsideration, and take them into account where it is procedurally fair to do so;
(iv) Fourth, with regard to those issues that are to be determined according to public law principles, it must determine whether the respondent complied with her section 55 duty;
(v) Fifth, if she did not, it must then decide whether the error was material and requires the decision to be set aside; and
(vi) Sixth, when deciding the issues that are for the tribunal to decide for itself, it must make its own findings about the best interests of any relevant child and take them into account as a primary consideration in accordance with established principles. Here, whether or not the respondent complied with her section 55 duty is unlikely to be relevant.
On further consideration of the facts of the individual appeal, the Tribunal found that the Secretary of State acted unlawfully in depriving both Mr and Mrs Mujaj of their citizenship, however that unlawfulness was not material, taking into account the information before the Tribunal, which had been updated since the initial decisions.
Whilst on the individual facts the case did not succeed, it is nevertheless an important judgment from the Upper Tribunal outlining the importance of a lawful best interests assessment when considering whether to deprive someone of their nationality, and the ongoing nature of the Secretary of State’s duty to keep under review her discretion. This finding arguably therefore extends the Secretary of State’s decision making into the review process, and as such in these cases Appellant’s should be alive to direct challenges to any Review carried out by the Secretary of State in deprivation cases on public law grounds.
The appellants were represented by Tom Wilding of 36 Public & Human Rights, instructed by A J Jones Solicitors. A link to the judgment can be found here.
Further information
For more information from the public-law team, contact clerks@36public.co.uk
Involving Tom Wilding
