Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-003166
and UI-2024-003217
First-tier Tribunal Nos: DC/50004/2023
and DC/50106/2023
LD/00018/2024
LD/00109/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

25th July 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
UPPER TRIBUNAL JUDGE RUDDICK

Between

FLAMUR MUJAJ AND ERMIRA MUJAJ
(ANONYMITY ORDER LIFTED)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr T. Wilding, instructed by AJ Jones Solicitors
For the Respondent: Mr E. Terrell, Senior Home Office Presenting Officer

Heard at Field House on 22 April 2025

Order Regarding Anonymity

The appellants were granted anonymity before the First-tier Tribunal, and the anonymity order was continued at the error of law stage before the Upper Tribunal. The anonymity order is now lifted.

DECISION AND REASONS
1. The appellants were granted anonymity before the First-tier Tribunal in consideration of the best interests of their children, two of whom were minors. Having heard from the parties, and taking into account Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private and the specific facts of this case, we consider that the public interest in open justice outweighs the privacy interests of the appellants and their children, only one of whom is still a minor.
Introduction
2. The appellants are a married couple who were born in Albania in 1973 and 1975, respectively. They married in Albania in 1997 and came to the UK in 1998 and 1999. They made separate asylum claims, in which each claimed to have been born in Kosovo and to be a minor. In due course, although by slightly different legal routes, they were each granted first refugee status and indefinite leave to remain and then British citizenship in their false identities.
3. The appellants have four children, all of whom were born in the UK before their parents’ deception came to light: in October 2000, November 2003, July 2006 and March 2015. All four children are British citizens.
4. In 2022, the respondent became aware of the appellants’ true identities. On 2 December 2022, she decided to deprive Mr Mujaj of his British citizenship on the grounds that it had been obtained by deception and on 15 June 2023 she took the same decision with regard to Mrs Mujaj. At the date of both decisions, all four of the children were still living in the family home, and the three eldest were 22, 19, and 16. The youngest child was seven years old at the time of the father’s decision, and eight at the time of the mother’s.
5. The appellants appealed separately to the First-tier Tribunal. The First-tier Tribunal dismissed their appeals, but in a decision promulgated on 4 November 2024, the Upper Tribunal set aside the decisions of the First-tier Tribunal in part and retained the appeals for remaking.
6. These appeals now raise three questions:
(i) What is the foreseeable impact of the deprivation decisions on the appellants’ children?
(ii) Did the respondent properly take that factor into account when deciding to deprive their parents of their British citizenship? and
(iii) Does the impact on the family mean that the decisions are disproportionate under article 8 of the European Convention on Human Rights (“ECHR”)?

The process that led to Mr Mujaj being deprived of his citizenship
7. In 2022, Mr Mujaj’s application to renew his British passport was rejected. He was told that this was because HMPO had been informed that there was no trace of him in Kosovan birth records but Albanian records contained someone with the same name and same parents’ names, born in 1973. On 1 April 2022, Mr Mujaj responded to HMPO directly. He confirmed that he had been born in Albania in 1973. He said that he was “deeply sorry for the false details given” but explained that he was from an area that was “next door” to Kosovo and he had fled to the UK in fear of being sent to war. He had claimed to be a minor from Kosovo because an interpreter and lawyer in the UK had advised him that “this was one of the best ways to be able to gain British residence”. He said that he was also attaching documents, including “my children’s birth certificates and schools”.
8. On 4 October 2022, the respondent wrote to Mr Mujaj informing him that she was “in possession of information confirming” that he had been born in Albania in 1973. She was therefore considering depriving him of his citizenship under section 40(3) of the British Nationality Act 1981 (the BNA 1981). The letter informed him of the potential consequences of deprivation, including that any previous immigration status he had held would not be automatically reinstated and that he would be at risk of removal from the UK. The letter further informed him that “[i]n order to reach a decision”, she “require[d]” Mr Mujaj to provide the following information:
“1. Identity documents
Please provide documentation to confirm your identity, including a birth certificate and family certificate.
2. Passports
Please provide copies of any passports you have held in the UK or abroad.
3. Marriage documents
Please provide a marriage certificate and a form of documentation to confirm your wife’s identity. If you have been married more than once please say so.
4. Children
Please provide birth certificates for your children.
5. Parents and siblings
Please confirm the identity of your parents and siblings.
6. Response to the allegation
Please provide any information you wish to be taken into account as to the reasons for your false representations.
7. Personal and family life
Please state what family ties you have in the United Kingdom.
8. Compassionate circumstances
Please provide details of any relevant compassionate circumstances you may wish to be taken into account.
9. Human Rights
Please provide any details of any Human Rights issues you may wish to be taken into account.
10. Sponsorship
Please confirm if you have ever sponsored an individual for entry into the UK from abroad, and if so, provide details.”
9. On 19 October 2022, Mr Mujaj’s solicitors emailed the respondent, again confirming his true identity and apologising for the deception but explaining that he had been in fear for his life in Albania at the time and had acted on the advice he had received “from other Albanians” in the UK. With regard to his personal and family circumstances, they mentioned that he was a “successful businessman”, operated a transport business “involving travel abroad” and had been paying his taxes. They gave his wife’s name as “Ermira Sina aka Mujaj formerly also known as Parllaku”, and asserted that she intended to instruct them as well. They submitted that
“If British Nationality is deprived to both of our clients this will have grave and devastating consequences for them and their four children who are also British.”
10. On 2 December 2022, the respondent wrote to Mr Mujaj, notifying him of her decision to deprive him of his British citizenship, giving her reasons (which are discussed below), and informing him of his right of appeal. On 17 January 2023, he lodged the appeal that is now before us (time to appeal having been extended by the First-tier Tribunal).
The process that led to Mrs Mujaj being deprived of her citizenship
11. On 20 March 2023, the respondent wrote to Mrs Mujaj to inform her that she was considering depriving her of her citizenship. With the exception of the biographical details, the letter was identical to the one that had been sent to her husband in October 2022. Mrs Mujaj replied directly, using her eldest child’s Hotmail account. She admitted the fraud but she claimed that it was her parents who had “registered me under age and from a different place as they believed this would be the best way”. She mentioned that her husband “has also gone through the same thing and been given a 5 year validity passport until his case is resolved”. As to her personal and family circumstances, she wrote:
“I am a hard working individual who has been in the UK for over 22 years […] we are family individuals who work hard and maintain the family life. I work as a career [sic] for a visually impaired woman and as a company secretary/admin for my husband[‘]s transportation company. We have 4 children, 2 in education, 1 in higher education and the other as a legal paralegal. I’m requesting for me to be given the same chance to apply for a 5 year valid passport until our cases get resolved completely as this job requires leaving the country in order to look after our families financially especially during this rough financial period.”
12. She attached her family’s identity documents.
13. On 15 June 2023, the respondent wrote to Mrs Mujaj to inform her of the decision to deprive her of her citizenship, the reasons for the decision, and her right of appeal. Mrs Mujaj also appealed.
The respondent’s decisions
14. The two refusal decisions on appeal before us were written by the same decision-maker (identified only as “M.B.”). They are identical in almost all respects, with the exception of the precise details of each appellant’s immigration history. They begin by setting out the relevant law and Home Office guidance, each appellant’s immigration history and the representations they had made as to why they should not be deprived of their citizenship. This is followed by sections entitled Citizenship: Guide and Booklet AN, Citizenship: Annex E to Chapter 18 (Good Character), and Chapter 55: Deprivation and Nullity of British Citizenship, in which the respondent considers the appellant’s conduct and representations by reference to each of these guidance documents.
15. The final paragraph of the Chapter 55 section is the same in each decision:
“It is acknowledged that the decision to deprive on the grounds of fraud is at the Secretary of State’s discretion. In making the decision to deprive you of citizenship, the Secretary of State has taken into account all of the relevant evidence and concluded that deprivation would be both a reasonable and proportionate step to take.”
16. In each decision, this conclusion is followed by sections entitled Article 8: European Convention on Human Rights, Section 55 [referring to Section 55 of the Borders, Citizenship and Immigration Act 2009] and Statelessness.
17. With the exception of the date on which each appellant obtained British citizenship and the fact of how their deception came to light, the Article 8 considerations are also identical. They set out that deprivation did not preclude an individual from remaining in the UK and that therefore the possible effects of removal did not need to be taken into account, that the appellant would lose various benefits of British citizenship, but these were benefits to which they had no proper entitlement, and that it would impact on their identity, but the misrepresentation only came to light through communications from third parties and the Home Office would have considered taking deprivation action earlier if it could have done so.
18. The “Section 55” consideration is also almost identical. In Mr Mujaj’s decision, it reads in its entirety:
“The Secretary of State is also aware that you have four children in the UK. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Home Office to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. In deciding whether deprivation action is appropriate, I have taken this into account. Deprivation of your citizenship (as distinct from removal or deportation) will not, in itself, have a significant effect on the best interests of your children. It will neither impact on their status or their mother’s status in the United Kingdom, nor is there any evidence that it will impact on their education, housing, financial support or contact with you. Whilst it is acknowledged that deprivation may have an emotional impact on your children, taking into account the seriousness of the fraud, misrepresentation or concealment of material fact(s), it is a reasonable and balanced step to take.”
19. The Section 55 section of Mrs Mujaj’s decision is the same, except that it begins, “The Secretary of State is also aware you have four British children, two of which [sic] are under the age of 18” and the phrase “their status or their mother’s status” was replaced by “their or your partner’s status”.
The appeals before the First-tier Tribunal
20. Both appellants appealed against the respondent’s decisions and submitted further evidence, including appeal statements and various documents.
21. For the purposes of this appeal, it is important to note what the appellants’ appeal evidence said about their children. In Mr Mujaj’s appeal statement, dated 15 August 2023, he said:
“10. If my nationality is revoked, my family and I will suffer great financial loss as I may not be able to continue running my business [….]
“11. Once the decision to revoke is made, I and my family will be in a state of limbo […] there is no certainty that I will be able to work, run my business and if so required, in the future, to claim public benefits.
“12. My family and I are very well settled in the UK and we have a network of support. Such a network would not be available should I be deported from the UK. It will certainly lead to the break-up of our family as I cannot expect my wife and my children to follow me to Albania.”
22. Mr Mujaj’s appeal statement thus suggested that his wife’s British citizenship was not precarious, even though the respondent had already decided to deprive her of that citizenship two months before. The skeleton argument submitted on his behalf muddied the waters further, arguing that his wife’s British citizenship weighed in favour of the appellant in the article 8 balancing test; this was drafted on 29 September 2023, more than three months after her deprivation decision.
23. Mr Mujaj’s evidence before the FTT included his children’s identity documents and various documents setting out his financial position. The latter included Company House documents and accounts for his business, tax returns showing that he had declared an income from employment of just over £12,000 for the tax years from 2019-20 through 2022-23, and £6,912 in 2018-19 and a mortgage statement in his wife’s name, showing an outstanding mortgage balance of £154,700 and monthly mortgage payments of £685. Finally, there was an email from the appellant’s eldest child to his legal representatives, setting out a table of estimated monthly income and expenses. This showed incomings of roughly £5,000 a month and outgoings of just under £2,800 in both personal and business expenses (not including the mortgage).
24. The respondent conducted two reviews of her decision in Mr Mujaj’s case and maintained her decision. The first was dated 8 October 2023 and addressed the article 8 issues, which at the time the respondent understood to be the only basis of challenge. The respondent noted Mr Mujaj’s concerns about the limbo period, but asserted that the period was not “excessive” and the consequences were proportionate to the seriousness of his fraud. The second review was dated 11 January 2024. It began by alerting the tribunal to Mrs Mujaj’s pending appeal and suggesting that the appeals be linked. It primarily addressed the question of whether the respondent had erred in deciding that the condition precedent had been met. With regard to discretion, the respondent did not review her decision in light of the appeal evidence. Instead, she pointed to paragraphs 36 and 37 of the refusal decision as evidence that discretion had been exercised lawfully in accordance with published policy. The second review did not address the issues of “Article 8 or foreseeable consequences”, on the grounds that they already been addressed in the 8 October 2023 review.
25. Mrs Mujaj took a different approach in her appeal. Her statement, the statement of her daughter and her skeleton argument all addressed the potential consequences of both parents being deprived of their citizenship at the same time. In her statement, Mrs Mujaj set out that she and her husband both worked and were the “sole breadwinners” for the family. Their eldest daughter was looking for work as a paralegal, their eldest son was at university, and their youngest two children were still at school. She said:
“18. My biggest worry now is that both me and my husband […], who has a separate appeal against deprivation will, for an uncertain period of time, become illegal. We will have no right to work, claim benefits, drive or rent if that becomes necessary if we lose our home […] We could even have our bank accounts closed. I worry how we can support our children if that happens. We have no one to turn to for help.”
26. The couple’s daughter likewise referred in her statement to her parents both going through “the same process”. She wrote, “I understand they both will be allowed to stay here, but I also know there could be serious financial consequences for all of us while a decision is made on this.” She too referred to the risk that the family would lose their home if both parents lost their right to work.
27. Mrs Mujaj’s statement also included a table of expenses. This showed that she and her husband each earned £1,047 a month from their business, and that they received £159.60 in Child Benefit. Their outgoings were estimated to be £2,015 a month. She included payslips, tax returns, and bills to confirm this, as well as bank statements. Her two personal bank accounts had a combined balance of over £3,000, and her husband’s of over £9,000.
28. The skeleton argument, finally, squarely raised the arguments that both appellants now pursue before us. These included that the decision was unlawful because the respondent failed to take into account the impact on the family of depriving both parents of their citizenship, which was material to the exercise of her discretion, and that the respondent had not complied with her section 55 duty.
29. In the review in Mrs Mujaj’s case, the respondent responded directly to the issue raised about the impact on the family of the simultaneous deprivation decisions. She asserted that because the appellant and her husband had “lived within the UK for a considerable length of time”, they would have “developed a network of support who can assist if both herself and husband face deprivation action.” She also relied on Hysaj (Deprivation of Citizenship: Delay) Albania [2020] UKUT 128 (IAC) for the proposition that the children would be able to access to support under section 17 of the Children Act 1989.
30. On 4 March 2024, the two appellants’ pending appeals were formally linked on the myHMCTS system and they were listed to be heard together on 16 April 2024, with Mr Mujaj’s appeal designated as the lead case. Both appeals came before Judge Bibi at Taylor House on the same day. The same Home Office Presenting Officer was present on behalf of the respondent in both appeals, but each appellant was represented by different counsel. Neither appellant gave evidence in the other’s appeal.
31. The appeals proceeded separately in spite of the direction made on 4 March 2024. In two separate but substantially identical decisions, Judge Bibi dismissed both appeals, finding that the respondent’s decision to revoke their citizenship was both lawful and proportionate under article 8. Each appellant applied separately to the First-tier Tribunal for permission to appeal. Neither challenged Judge Bibi’s decision to uphold the respondent’s finding that they had obtained their British citizenship by fraud, but they both challenged the findings that the respondent had exercised her discretion lawfully and that the decisions were not disproportionate under article 8.
32. Both appellants were refused permission to appeal, and both renewed their applications to the Upper Tribunal. By this point, they had instructed the same counsel, who presented substantially the same grounds in each appeal, and after both applications were granted, the appeals were listed to be decided in a single hearing.
33. The appeals then came before Upper Tribunal Judge Ruddick for an error of law hearing. In a decision promulgated on 4 November 2024, Judge Ruddick set aside both of Judge Bibi’s decisions in part and directed that the appeals be retained in the Upper Tribunal for remaking.
34. The appeals were listed for hearing before us in December 2024, but we granted the respondent’s application for an adjournment to await the imminent judgments of the Court of Appeal in Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, Secretary of State for the Home Department v Daci [2025] EWCA Civ 18 and Secretary of State for the Home Department v Kolicaj [2025] EWCA Civ 10. Those judgments were handed down on 17 January 2025.

The hearing before us
35. At the hearing before us, we had each appellant’s composite bundles prepared for the error of law hearing, an appellants’ skeleton argument dated 22 November 2024, an appellants’ supplementary bundle of updating evidence and application for admission of that evidence under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, and a skeleton argument on behalf of the respondent, dated 17 April 2025.
36. The appellants’ skeleton argument raised the following challenges to the respondent’s decisions:
(i) The respondent had failed to exercise her discretion lawfully because she had failed to take into account all relevant circumstances, in particular, the fact that she was depriving both appellants at the same time; this was a particularly significant failure in Mrs Mujaj’s decision, because the decision to deprive Mr Mujaj had by then already been taken;
(ii) The respondent had failed to comply with her section 55 duty because:
a. She had failed to take into account the material factor that both parents were facing deprivation at the same time;
b. She had not turned her mind to the identities or circumstances of the children. Instead, she had simply referred to the number of children and then inserted a template paragraph asserting that they would not be significantly affected by the decision; and
c. She had failed to comply with her duty of enquiry and did not have sufficient information before her to make a rational decision about the children’s best interests;
(iii) The respondent had asserted in both decisions that the “limbo period” between the deprivation order and a new decision granting or refusing leave would be eight weeks. This was factually incorrect, as a Freedom of Information response dated 31 August 2021 indicated that the average time between the making of a deprivation order following a dismissed appeal and a grant of leave to remain was 257 days. Moreover, the respondent had failed to comply with her duty of candour (which applied given the public law principles in play) by not providing updating statistics to evidence that the limbo period was only eight weeks, as she claimed; and
(iv) The decisions were disproportionate under article 8.
37. The appellants’ skeleton argument could be read as suggesting that there were three discrete public law grounds (failure to take into account all relevant factors in the exercise of discretion; failure to comply with the section 55 duty; and mistake of fact and lack of candour as to the limbo period). In a preliminary discussion and in submissions before us, however, both sides agreed that all of the public law challenges related to the lawfulness of the respondent’s exercise of her discretion. For the reasons set out below, we agree.
38. We heard evidence in English from Mr and Mrs Mujaj and their eldest child. They all adopted their statements. Mr Mujaj answered further questions on direct and cross-examination, and all three appellants answered questions from Judge O’Callaghan. We then heard submissions from both representatives, for which we are grateful. Rather than rehearsing them here, we will refer to the evidence and the submissions, where relevant, in the discussion below.
39. At the end of the hearing, we reserved our decision, which we now give with our reasons.
The legal framework
40. The appellants appeal against the respondent’s decision to deprive them of their British citizenship under section 40 of the BNA 1981. This provides in relevant part that:
“(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 –
(a) fraud,
(b) false representation, or
(c) concealment of a material fact. […]
“(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying –
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person’s right of appeal under section 40A(1) […].”
41. The appellants’ right of appeal against the decision is provided for by section 40A of the BNA 1981:
“Deprivation of citizenship: appeal
(1) A person –
(a) who is given notice under section 40(5) of a decision to make an order in respect of the person under section 40 […]
may appeal against the decision to the First-tier Tribunal.”
The available grounds of appeal
42. The grounds of appeal and standard of review are nowhere specified in statute but have been defined and redefined over time by decisions of the Supreme Court, the Court of Appeal and the Upper Tribunal. In Begum, R. (on the application of) v Special Immigration Appeals Commission & Anor [2021] UKSC 7 at [71], Lord Reed set out the questions that should be considered in an appeal against a decision to deprive a person of their British citizenship status under Section 40(2) of the BNA 1981, on the grounds that this is conducive to the public good:
(i) Did the respondent act in a way in which no reasonable Secretary of State could have acted, including by
(a) taking into account an irrelevant matter;
(b) disregarding something to which she should have given weight, such as the serious nature of a deprivation of citizenship and the severity of the consequences that can flow from it; or
(c) being guilty of “some procedural impropriety”.
(ii) Did the respondent err in law, including by making findings of fact which are unsupported by any evidence or based upon a view of the evidence that could not reasonably be held;
(iii) Has the respondent complied with the requirements of the statute regarding the prevention of statelessness (which do not apply in deprivations under section 40(3)); and
(iv) Has the respondent breached “any other legal principles applicable to [the] decision, such as the obligation arising in appropriate cases under section 6 of the Human Rights Act” 1998.
43. In the past four years, courts and tribunals have interpreted and applied Begum in appeals against deprivation decisions made under both section 40(2) and 40(3) of the BNA 1981. The current position is set out in the January 2025 judgments of the Court of Appeal in Chaudhry, Daci and Kolicaj.
44. In an appeal against a decision made under section 40(3):
(i) It is for the FTT to find as a fact whether there was fraud, false representation or concealment of a material fact. This is because making such findings is within the FTT’s institutional competence and because further material adduced and tested before the FTT might show that the respondent’s initial finding, although reasonable on the basis of the evidence available at the time, was wrong. The standard of proof is the balance of the probabilities and the burden lies on the respondent. Chaudhry at [46]-[49]; and
(ii) The respondent’s decision that registration or naturalisation was obtained by means of fraud is subject to review on public law grounds. This, too, reflects the relative institutional competence of the respondent and the FTT . As Lord Justice Dingemans explained in Chaudhry at [50]:
“This is because the decision on causation is a matter critically dependent on the Secretary of State’s previous decision making about which the Secretary of State is in a better position than the FTT to make the primary evaluation.”
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].
45. 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.
The respondent’s section 55 duty
46. Where a deprivation decision affects children, “the relevant legal obligations on the respondent” include those set out in section 55 of the 2009 Act. This provides in relevant part:
(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom […]
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
[…]
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
47. The guidance referred to at Section 55(3) is Every Child Matters: Change for Children: Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children, issued in November 2009. In CAO v Secretary of State for the Home Department [2024] UKSC 32, the Supreme Court explained what that guidance requires, as follows:
“89. The Guidance is intended to provide direction for practical decision-making as to the best interests of children in an area involving hundreds of cases each year. It cannot be interpreted to require procedural steps to be taken which have no practical bearing on the matter which arises for determination by a decision by the relevant immigration official. Further, the Guidance is drafted to give direction at a high level of abstraction, as is suitable to cover the very wide range of cases in which the immigration authorities may encounter children in their work, rather than to provide detailed and specific instructions to case-workers. […] it leaves a good deal to the judgment of immigration officials when deciding how to give effect to its directions on the ground. It supplies a fairly broad set of parameters within which they should orientate their approach to decision-making in relation to a child, but with a considerable element of discretion for them to adapt to the particular circumstances of a specific case […].”
48. 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.
49. 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.
The relevance of the respondent’s compliance with her section 55 duty in a tribunal appeal
50. In a human rights or protection appeal, the tribunal will not normally need to investigate whether the respondent has complied with her section 55 duty. This is because it has the jurisdiction to decide for itself whether the respondent’s decision is incompatible with the UK’s obligations under the ECHR, and where article 8 is engaged, it must identify and give due weight to the best interests of any relevant children. It also has procedural tools sufficient for collecting the information that it needs in order to do so. CAO at [68].
51. 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].
52. 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.”
53. 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.
The claimed public law errors in the respondent’s compliance with her section 55 duty in this case
54. In the appeals before us, it is not immediately clear when in the decision-making process the respondent took into account the best interests of the appellants’ children. The freestanding paragraph on section 55 comes after both the consideration of discretion and the article 8 assessment and section 55 is not referred to within either section. At the hearing before us, however, both parties agreed that the best interests of the children must be a relevant consideration in the exercise of discretion. This is consistent with the language of the refusal letters, which refer to the duty being taken into account “[i]n deciding whether deprivation action is appropriate” (rather than “proportionate”).
55. The appellants say that the respondent failed to comply with her section 55 duty in two ways. First, she failed to take into account a highly relevant factor which was known to her, namely that both parents were being considered for deprivation at the same time. Secondly, she had insufficient evidence before her about the children’s circumstances to make a rational decision about how their bests interests would be affected by either or both deprivation decisions. She therefore had a legal duty to make further enquiries before taking a decision.
56. The duty to make enquiries is known as the Tameside duty, after the speech of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014. A court considering whether a public authority has complied with that duty must consider two questions:
(i) What material was before the decision-maker and what did they know when they made the decision? and
(ii) Could a reasonable decision-maker possessed of that knowledge have proceeded to make a decision without making further enquiries?
See: Plantagenet Alliance Ltd v The Secretary of State for Justice & Others [2014] EWHC 1662 (QB) at [141]. The question is not whether a reviewing court considers that further enquiry might have been sensible or desirable, but whether no rational decision-maker could have been satisfied that it possessed the information it needed to make a rational decision. Id at [100]. For the duty to have been breached, there must be a “vital gap in the evidence”. CAO at [48].
Did the respondent exercise her discretion lawfully?
The decision to deprive Mr Mujaj of his British citizenship
57. We find that the respondent did not exercise her discretion lawfully when deciding to deprive Mr Mujaj of his British citizenship. She was aware that he was the father of four children, and, having been provided with their birth certificates, she was aware that two of them were minors.
58. Even taking into account the respondent’s considerable discretion in complying with her section 55 duty (as recognised in CAO) and the general unlikelihood that the consequences of the limbo period for children will weigh heavily against depriving a parent who has acquired citizenship by fraud (as noted in Hysaj), some individualised consideration of the children’s circumstances was still required.
59. The deprivation decision contains a finding that there was “no evidence” that it would have an “impact on their [the children’s] education, housing, financial support or contact with you.” This is accurate. Mr Mujaj and his representatives had provided no such evidence. We consider that no rational decision-maker could consider that they could comply with their section 55 duty without any evidence whatsoever about the children’s circumstances. CAO makes it clear, moreover, that although a decision-maker is entitled to presume that a parent will normally provide information sufficient to make an assessment of a child’s best interests, where they do not, the decision-maker has a duty to take steps to acquire it.
60. The nationality and immigration status of the other parent is clearly likely to be material to the assessment of the effects of deprivation on a child, because it affects that parent’s ability to help support the child by working or receiving public funds. In this case, the respondent was aware that the status of the other parent was precarious. The birth certificates informed the respondent that the children’s mother was Ermira Sina (Mrs Mujaj’s false name), which was reiterated in the brief representations from Mr Mujaj’s legal representatives. It is accepted that Mrs Mujaj’s use of this false identity had already come to respondent’s attention by sometime in 2022, and the representations reminded the decision-maker that both parents were facing deprivation. This should have made it even clearer that some specific information about the children’s circumstances was necessary.
61. We therefore consider that the respondent failed to comply with her Tameside duty and failed to obtain sufficient information about the children’s circumstances to enable her to comply with her section 55 duty when deciding to deprive Mr Mujaj of his British citizenship
62. We find, however, that this error was not material. If the respondent had sought more information from Mr Mujaj about his children’s circumstances, it is fair to assume that he would have not said anything more than what he and his wife said in support of their appeals. This included that the couple were living together with all four of their children. The eldest was working as a paralegal; she told us at the hearing before us that her salary had been £1,400 a month. The second child was studying, but there was no suggestion that he was not capable of working if necessary. The couple held savings of £12,000, which was enough to cover five months of their total outgoings. We consider that if the respondent’s decision-maker had acquainted themselves with these facts, the decision to deprive would have been the same. Indeed, as set out below, when, prior to Mrs Mujaj’s appeal hearing, the respondent did reconsider the exercise of discretion in light of all of this evidence, she maintained her decision.
The decision to deprive Mrs Mujaj of her British citizenship
63. The respondent’s failure to comply with her section 55 duty is even clearer with regard to her initial decision to deprive Mrs Mujaj of her British citizenship. By that point, Mr Mujaj had already been deprived of his citizenship, by the same decision-maker, M.B., and in any event, Mrs Mujaj reminded M.B. that he was “going through the same thing” and his case had not yet been “resolved”. She indicated that she had two jobs, but one was with her husband’s transportation company. This job required leaving the country. She also referred to “this rough financial period”, albeit without providing any detail or supporting evidence. This was enough to indicate a potential risk of financial hardship to the children and require at least some further information about their current circumstances.
64. However, in Mrs Mujaj’s case, the respondent did reconsider her decision in the respondent’s review, taking into account Mrs Mujaj’s appeal evidence. By that point, the respondent was entitled to consider that she had all of the information she needed to make an informed assessment of the children’s circumstances. She had detailed statements from both Mrs Mujaj and the couple’s eldest child, as well as bank statements, mortgage statements, and a table of regular expenses. In a case in which the only concerns raised by the mother and the eldest child were financial, this provided an adequate basis for a rational decision. Having considered that information, and taking into account the likelihood of the family accessing support from friends and from the local authority, the respondent maintained her decision. It was clearly open to her to do so on the evidence before her.
Article 8
65. Any article 8 assessment in a section 40(3) deprivation appeal needs to begin by recognising the strong public interest in protecting the integrity of British citizenship. What weighs against deprivation must nonetheless always be assessed on an individualised and case-by-case basis.
66. Article 8 assessments must be conducted with regard to the real world consequences for the individuals involved. In this case, this means that although there are two separate decisions, the article 8 assessment must take into account the clearly foreseeable possibility that both parents will be deprived of their citizenship at the same time. In the appellants’ statements and the statement of their eldest child, the concerns expressed about this dual deprivation relate to the impact on the family’s finances and accommodation during the limbo period. As set out above, both appellants and their daughter focused on the financial risks to their family in their article 8 arguments before the FTT. Both appellants took the same approach in their updating statements of 26 November 2024. They said that they still supported all four of their children financially, explaining that the two eldest children had been looking for work without success and the third child (now an adult) was studying but also pursuing an apprenticeship in which she was paid only the minimum wage. Mr Mujaj said
“Our business is our only source of income. We could not keep a roof over our heads or support the family without this. If me and my wife can’t work, even for a short period of time we could not manage financially.”
67. Similarly, Mrs Mujaj said that if her husband was unable to work “we will struggle because there is no-one to help us”. Their daughter did not make an updating statement.
68. Updating bank statements showed that Mr Mujaj held a running balance of over £5,000 in his current account in October and November 2024. He added around £600-700 a month and subtracted £1,200. Mrs Mujaj did not maintain a minimum balance in the same way, and every month she withdrew roughly the same amount as she deposited. If her income stopped, she would quickly be left with nothing. The couple’s mortgage payment was £825 a month. At the hearing, Mr Mujaj informed us that the balance in his current account had increased to £6,333 and that he also held an ISA account with a balance of £2,781. Their business earned around £3,000 a month. He said he had some cousins in the UK and that he had made friends over the 26 years he had lived here, but that if the family were in need, these relatives and friends would only be able to help with “small things”. Both appellants doubted that their adult children would be able to keep the business running during the limbo period, because they did not think they could find a driver to drive to Albania and back regularly, and the children would struggle to communicate with their clients because they did not speak Albanian well. Their third child earns £1,000 a month from her internship. Neither of the older two were working. Their eldest, however, had moved in with her fiancé, who was supporting her financially. She explained that she was not working because she was planning to pursue a Master’s degree.
69. We find that the immediate financial consequences of both parents losing their right to work would not be severe. The appellants’ combined income, according to their tax returns, has been consistently around £25,000 a year. Moreover, the eldest child is now supported by her fiancé, which will have reduced the family’s outgoings somewhat. This means that the three adult children would only need to earn a modest income in order to keep the family in the same financial position as they are in now. Although the eldest two children are not in work, there is no particular reason why they could not find some employment to help support their parents and youngest sibling, while the third child already earns almost half the parents’ declared income. Moreover, the appellants have over £8,000 in savings, which could cover their mortgage payments for nine months.
70. The respondent said in both decision letters that the limbo period would be “relatively short” because
“within eight weeks from the deprivation order being made, subject to any representations you may make, a further decision will be made either to remove you from the United Kingdom […] or issue leave.”
71. The appellants argued before us that the limbo period was likely to be considerably longer, such that the family might over time fall into real financial hardship as they exhausted their savings. We were invited to making a finding to this effect, based on the FOI response reporting an average of 257 days between the service of a deprivation order following a dismissed appeal and a grant of limited leave.
72. We note the respondent’s clear statement that a decision “will be made” within eight weeks from the deprivation order being made, “subject to any representations you may make”. We find that the evidence the appellant relies on is worthy of little weight and cannot support a finding that a decision is unlikely to be made within this timescale. In the first place, the FOI response was based on data up to 31 December 2020. It is beyond dispute that the COVID-19 pandemic is likely to have slowed the respondent’s decision-making significantly between March and December 2020. Moreover, the FOI response does not say when the data series being summarised began or how many total decisions were made, and there is no way to know whether there were any particularly complex or particularly straightforward cases that could have made the mean figure an unreliable indicator of the usual processing time. Mr Wilding sought to argue that the FOI response was “the respondent’s evidence” about the length of the limbo period and that the respondent could not resile from it without some updating evidence to contradict it. We disagree. The FOI response is not the respondent’s evidence about the question before us, namely, what the limbo period is likely to be for these two appellants. It is the respondent’s answer to a particular question she was asked in March 2021. It was for the appellants to persuade us that that answer is helpful in answering the question before us in April 2025. We are not persuaded that is.
73. Weighing the strength of the public interest in deprivation against the limited foreseeable consequences of deprivation for the appellants and their children, we find that the respondent’s decisions are not disproportionate.
Notice of decision
The appellants’ challenges to the lawfulness of the respondent’s exercise of her discretion are dismissed on public law grounds.
The appellants’ appeals are dismissed on article 8 grounds.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 July 2025

TO THE RESPONDENT: FEE AWARD
As we have dismissed the appeals, there can be no fee award.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 July 2025