Profile for Mark Lilley-Tams, OTB Legal
Mark is an experienced immigration Solicitor, having been practicing in the area for more than 15 years. He is one of only a few across the country who holds advanced Level 3 accreditation as an Advanced Caseworker with the Law Society. In the Times list of 200 best law firms, Mark has been described as ‘renowned’ for his work in representing detained clients and seeking compensation. In the most recent edition of Chambers and Partners, Mark was ranked and given the following review:
"Mark Lilley-Tams is a seasoned immigration partner with significant expertise across personal immigration. He is best known for his work on nationality matters and often handles complex deprivation of citizenship cases, as well as judicial reviews. "He is just brilliant; he is very professional and always super responsive."
Mark has recently held a large caseload representing Albanian clients who have faced difficulties due to having initially provided incorrect details, sometimes having claimed to be Kosovan, when arriving in the UK.
Limbo: Entitlement to a British passport in correct details
There are many Albanian nationals who have been contacted by the Home Office or the passport office due to being considered for deprivation action, who have had their passport revoked due to the threat of deprivation action.
This situation can sometimes go on for many years and can be extremely distressing. Without proof of status, a person may be unable to secure employment, rent a property, hold a driving licence, or travel abroad. This is despite the fact that a person being considered for deprivation action remains a British citizen unless a deprivation order is served.
In the recent case of R on the application of Gjini v SSHD, the High Court was asked to consider whether it was lawful for the passport office to refuse to issue a British passport to an Albanian national in his correct details, whilst he had an ongoing appeal of a decision to deprive him of his citizenship. The Passport Office argued that they could lawfully refuse to issue a British passport to a person who had obtained their status through deception. However, it was argued that refusing to issue a British passport to a person in that situation ‘put the cart before the horse’, because it meant that a person was treated as having lost their British citizenship even before the deprivation proceedings had concluded.
After considering all the arguments the High Court decided:
- That the Claimant was entitled to be issued with a British passport in his correct details, even before the deprivation proceedings had concluded
- That the Claimant was also entitled to have his naturalisation certificate corrected to reflect his correct identity.
Following the Court’s decision, the Home Office has now issued the Claimant with a British passport and corrected naturalisation certificate, which has meant he is now able to travel/prove his identity and status whilst his deprivation appeal is ongoing. The Court’s decision has not been appealed and now has far-reaching ramifications for others who are in a similar situation. The consequence of that decision is that others who are facing deprivation of citizenship action on the basis of deception should be entitled to the issue of a British passport to them in their correct details, as long as they are able to prove their true identity.
It still rests to be seen whether this process will be made straightforward by the Passport Office or subject to delays, but the legal position has been made clear and will benefit a number of people who have found themselves stuck in limbo due to not having access to proof of their British citizenship.
OTB Legal are able to assist with applying for a British passport and obtaining a corrected naturalisation certificate. If support with this process is desired, please contact Mark Lilley-Tams at mark@otb.legal.
Deprivation Action
It is common for individuals who know they have obtained their status and citizenship through deception, to want advice on whether to come forward to the Home Office and disclose their correct identity.
There may be a number of reasons that deprivation action will not be pursued by the Home Office, even where a person has not previously been honest about their identity when they made their initial immigration application or applied to naturalise as a British citizen. Such reasons may include:
Following a recent decision by the Court of Appeal in the case of Laci, there may be a strong argument that deprivation action should not be taken if a person has experienced a substantial delay because the Home Office have not progressed their case. In Laci a delay of 9 years was experienced, and the Court of Appeal decided this was so exceptional that deprivation action would breach Laci’s human rights;
It may be that the deception was not relevant to the reason that the person was granted their citizenship. If a person was granted ILR under legacy for reasons that were not connected to their claimed nationality, then they may be entitled to keep their citizenship. The good character guidance for naturalisation applications before 2012 made it clear that a person should not be considered not to be of good character in this situation;
A decision to deprive may not be in line with the Home Office’s guidance. Examples of factors that are relevant include whether the person was a minor when they first arrived in the UK, and whether they were suffering from mental health problems which affected their judgment when applying to naturalise.
It will be important that a person obtains clear advice from an experienced lawyer on whether there are grounds to challenge a deprivation action so that a person can enter the process with their eyes wide open.
What to expect if the Home Office are notified of deception
A sensible way of initially notifying the Home Office of deception is to make an application on Form RR to amend the naturalisation certificate. Where this approach is taken the usual steps taken by the Home Office will be:
1. To invite representations and request further information in respect of potential deprivation action;
2. Full representations should then be submitted to the Home Office, providing reasons why deprivation action should not be taken together with supporting evidence;
3. The Home Office will then make a decision about whether to take deprivation action. If a decision is made not to deprive the person of their citizenship, they will be invited to have their naturalisation certificate amended to enable the issue of a British passport in their correct details;
4. If a decision to deprive is taken, then the person will have a right of appeal so that the matter can be argued before the Tribunal;
5. If an appeal against deprivation is ultimately unsuccessful, or a decision is made not to appeal the deprivation decision, then the Home Office will consider whether to grant a person leave to remain. The Home Office consistently set out a timetable within decision letters that suggest that the initial deprivation order will be made within 4 weeks, and a further decision about whether to grant leave to remain will then be made within a further 8 weeks. Recent experience shows that this timetable is not always stuck to, although the challenge of delays may be brought where there are good reasons;
6. If the Home Office decides that a person should be entitled to remain in the UK, a common approach is for the Home Office to then grant 2 ½ years leave to remain on the 10 year route to settlement.
Services that OTB Legal can provide
OTB Legal offer a free initial consultation so that full details of a person’s individual circumstances can be obtained, and then advice is provided on the options available and the merits of any proposed approach taken.
To provide a guide as to the likely costs of further services that would then be provided:
Assistance with making an application for a British passport incorrect details and amending the naturalisation certificate:
£1,200 including VAT. This will cover advice on the documents needed to support the application, support with completing the application forms, preparation of cover letters in support of the application, and submission of the applications to the Home Office. An Applicant would also need to cover the cost of amendment to their naturalisation certificate (£250) and the passport application fee.
Support in challenging deprivation action:
£1,500 including VAT to prepare representations in support of the reasons why deprivation action should not be pursued.
Approximately £4,000 – £5,000 including VAT to cover the cost of representation in an appeal before the First-tier Tribunal. This would cover the costs of OTB Legal in preparing the appeal (including preparing witness statements and the appeal bundle) as well as the costs of instructing experienced counsel to represent at the appeal.
Applying for indefinite leave to remain where 2 ½ years leave to remain has been granted:
£1,140 including VAT to cover the cost of applying for indefinite leave to remain where the Home Office have granted limited leave to remain for 2 ½ years. This may be an option where a person has completed 10 years of qualifying lawful residence prior to the deprivation action being taken.
An initial free consultation can be scheduled with Lydia Watkinson or Mark Lilley-Tams of OTB Legal directly on the OTB Legal website here:
If appointments are not showing as available, then please email hello@otb.legal
