E3, N3 and ZA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 13 May 2022 |
| Neutral Citation | [2022] EWHC 1133 (Admin) |
| Docket Number | Case No: CO/3463/2021, CO/3749/2021 and CO/3806/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1133 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/3463/2021, CO/3749/2021 and CO/3806/2021
Hugh Southey QC and Alasdair MacKenzie (instructed by Duncan Lewis) for the Claimants
Neil Sheldon QC and James Stansfeld (instructed by Government Legal Department) for the Defendant
Hearing date: 4 th May 2022
Introduction
E3 and N3 were deprived of their British citizenship by the Secretary of State for the Home Department (“the Defendant”). There was complex litigation in their cases which culminated in the Court of Appeal and an application for permission to appeal to the Supreme Court. Following the determination of the Special Immigration Appeals Commission (“SIAC”) in three similar cases, the Defendant concluded that her deprivation decisions in the cases of E3 and N3 could no longer be supported, and these were withdrawn. The Defendant also informed E3 and N3 that their citizenship had been reinstated. SIAC then filed and served a notice recording that fact in accordance with its procedure rules.
This claim for judicial review raises an important question of principle. Was the legal effect of the Defendant's withdrawal decision prospective only (the Defendant's analysis) or was it retroactive in the sense that it should be treated as never having been made (E3's and N3's analysis)? This question is by no means academic, not least because ZA, E3's daughter, was born in Bangladesh during the period of deprivation. If the Claimants' analysis were correct, ZA would be automatically entitled to British citizenship and would not now be required to apply for it at considerable expense.
I am grateful to Counsel for their impressive written and oral arguments. What appeared to me to be quite a straightforward case at the outset became more complex as the hearing proceeded.
Essential Factual Background
E3 was born in the United Kingdom on 27 th May 1981. He was therefore a British citizen at birth. Both his parents were Bangladeshi citizens at the time of his birth. There is no dispute that E3 was also a Bangladeshi citizen at the time of his birth but until the issue was resolved by SIAC it was far less clear whether he remained as such after his 21 st birthday.
N3 was born in Sylhet, Bangladesh on 12 th December 1983. He was a British citizen at birth by virtue of s. 2(1)(a) of the British Nationality Act 1981 (“the BNA 1981”) because at the time his parents were British citizens otherwise than by descent. In terms of his Bangladeshi citizenship, his status was indistinguishable from that of E3.
On 5 th June and 31 st October 2017 the Defendant made orders depriving E3 and N3 respectively of their British citizenship under s. 40 of the BNA 1981. The Defendant maintained that her orders would not render the Claimants stateless because they were still Bangladeshi citizens.
Both E3 and N3 appealed and a preliminary issue in their conjoined appeals was heard by SIAC in October 2018. On 15 th November 2018 SIAC allowed their appeals, holding that E3 and N3 had lost their Bangladeshi citizenship at the age of 21.
On 10 th June 2019 ZA was born in Bangladesh. If her father were a British citizen at the time, ZA would be a British citizen by descent.
On 5 th November 2019 N3 sought to return to the UK. He was refused entry because the immigration officer was not satisfied that he was a British citizen or had leave to remain. The following reason was given to N3's representatives on 6 th November:
“The Secretary of State's position is that, as SIAC's statelessness determination does not render the deprivation decision void, revoking the decision is a matter for the Secretary of State. In circumstances where the Secretary of State is appealing against SIAC's determination to the Court of Appeal – with a decision on that appeal now pending – the Secretary of State has not revoked the deprivation decision in relation to your client. Indeed, revoking the deprivation decision would be to pre-empt the outcome of that appeal. Further, it is relevant to the matter of revoking the Secretary of State's decision ahead of the outcome of that appeal that your client is assessed to pose a threat to UK national security.”
On 21 st November 2019 the Court of Appeal allowed the Defendant's appeal against SIAC's judgment, and the matter was remitted to the latter for reconsideration. E3 and N3 then applied for permission to appeal to the Supreme Court.
Meanwhile, the same preliminary issue was being litigated before SIAC in three similar cases. On 18 th March 2021 SIAC handed down its judgment in the cases of C3, C4 and C7 v SSHD (SC/167/2020), allowing the appeals on the ground that the deprivation orders rendered these Appellants stateless. Within a reasonable time thereafter, the Defendant decided not to seek to take the matter further.
On 20 th April 2021 the Defendant wrote to E3 and N3 in the following identical terms:
“As you are aware, on 18 th March 2021 SIAC handed down judgment determining the preliminary issue of statelessness in the appeals of C3, C4 and C7 v SSHD.
In light of that SIAC judgment, we are instructed that the Home Secretary has withdrawn the deprivation order in relation to your client. Your client's British citizenship has therefore been reinstated.”
By email dated 28 th April 2021, the Government Legal Department clarified its client's position as follows:
“In relation to reinstatement of citizenship, it is the Secretary of State's position that, at the time of making the deprivation orders in respect of both your clients, she was not satisfied that either order would make your clients stateless, in accordance with s. 40(4) of the BNA 1981. Thus, the orders were lawful. Following SIAC's judgment in C3, C4 and C7, and the decision not to appeal SIAC's determination, the Secretary of State has reconsidered the matter, in light of SIAC's analysis of the statelessness issue and the evidence before SIAC, which was not available at the time the orders were made. The Secretary of State is now satisfied that the deprivation orders would make your clients stateless, and accordingly the decisions have been withdrawn and your clients' citizenship reinstated. The decision to reinstate your clients' citizenship, following extensive litigation and the consideration of further evidence, does not render the original decisions unlawful. For these reasons, your clients have not retained your citizenship throughout.
In relation to the specific matter you raise, the Secretary of State notes that E3 could seek to apply to register his child as a British citizen under the BNA 1981, if your client was so minded and with reliance on the exceptional circumstances of your client and his family.”
On 10 th June 2021 the Defendant informed E3 and N3 that she intended to write to SIAC informing it that the relevant deprivation decisions had been withdrawn and that it was her view that, in consequence, “pursuant to para 11A(2) of the SIAC Rules, the appeals are to be treated as having been withdrawn”. E3 and N3 did not accept that analysis.
SIAC listed this issue for determination at a hearing on 19 th July 2021. At that stage, the applications for permission to appeal to the Supreme Court were still technically extant. At the conclusion of the hearing I stated that it was not open to SIAC to go beyond the provisions of para 11A of the SIAC Procedure Rules, and in particular I could not determine the legal effect of withdrawal: that could only be determined within judicial review proceedings. Once SIAC had been notified that the applications for permission to appeal were no longer alive in the Supreme Court, I promulgated a short judgment setting out my reasons. I understand that E3 and N3 did not seek to appeal it.
Mr Clive Sheldon QC sitting as a Deputy High Court Judge granted permission in the case of N3, and later I granted permission in the cases of E3 and ZA, reserving the substantive hearing to myself, if possible.
Relevant Legal Framework
Section 1 of the BNA 1981 provides in material part:
“ 1 Acquisition by birth or adoption.
(1) A person born in the United Kingdom after commencement [1 st January 1983] shall be a British citizen if at the time of the birth of his father or mother is –
(a) a British citizen; …”
Strictly speaking, and contrary to the submissions I have received, E3 cannot avail himself of this provision because he was born in the UK before commencement. However, E3 is in an even better position because under s. 4 of the British Nationality Act 1948 he was a citizen of the United Kingdom and Colonies at the time of his birth because he was born here, and the effect of s. 11 of the BNA 1981 is that he became a British citizen at commencement. His parents' status is irrelevant.
Section 2 of the BNA provides in material part:
“ 2 Acquisition by descent
(1) A person born outside the United Kingdom … after commencement shall be a British citizen if at the time of his birth his father or mother –
(a) is a British citizen otherwise than by descent; …”
N3 falls within s. 2.
Section 40 of the BNA 1981 has gone through a number of iterations. I shall summarise the position as follows, drawing attention to the provisions which are directly material.
Section 40 as originally enacted did not empower the Defendant to deprive a person of his British citizenship on the grounds that it was not conducive to the public good that he should continue to be a British citizen. Such a provision was first introduced on 26 th February 2003 but only as a constraint on separate deprivation powers exercisable in specific circumstances....
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Upper Tribunal (Immigration and asylum chamber), 2023-03-10, LP/00331/2021
...remains the correct approach in a section 40(3) case. We note that in E3, N3 and ZA v Secretary of State for the Home Department [2022] EWHC 1133 (Admin) at [47] Jay J expressed concern about the guidance in Ciceri and, in particular, about the suggestion that administrative law principles ......