R D4 v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWHC 2179 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1145/2021 |
[2021] EWHC 2179 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/1145/2021
Dan Squires QC and Jessica Jones (instructed by Birnberg Peirce) for the Claimant
Lisa Giovannetti QC and Andrew Deakin (instructed by the Government Legal Department) for the Defendant
Hearing date: 22 July 2021
Approved Judgment
Introduction
In s. 40(2) of the British Nationality Act 1981 (“the 1981 Act”), Parliament gave the Home Secretary the power to make an order depriving a person of British citizenship if satisfied that deprivation would be conducive to the public good. Parliament provided by s. 40(5) that, before making such an order in respect of a person, she must give the person written notice specifying that she has decided to make an order, the reasons for it and the right of appeal. In s. 41(1)(e), it also conferred power to make regulations “for the giving of any notice required or authorised to be given to any person under this Act”.
The British Nationality (General) Regulations 2003 (SI 2003/548: “the Regulations”) were made under this provision. They set out the methods by which notice is to be given. As originally made, they provided for notice to be sent to the person's last known address. In 2018, the Home Secretary amended the Regulations to deal with cases in which the person's whereabouts are unknown, there is no valid address for correspondence and no representative acting: see SI 2018/851. As amended, reg. 10(4) provides that, in such a case, “the notice shall be deemed to have been given” when the Secretary of State makes a record of these circumstances and places the notice or a copy of it on the person's file.
This case is not about whether there were good reasons to make this rule. It is about whether Parliament gave the Home Secretary the power to make it. That depends on whether the power to make regulations “for the giving of any notice” includes a power to allow the Home Secretary to treat notice as given by placing it on a private file in the Home Office, even though it could never come to the attention of the affected person by that means. If the answer is “No”, reg. 10(4) has no effect in law.
In that event, a second issue arises about the consequences for the Claimant, D4. She is assessed to have travelled to Syria to align with the proscribed terrorist organisation Islamic State. She knew nothing of the decision to deprive her of her British citizenship when notice of that decision was placed on her Home Office file on 27 December 2019. The deprivation order was made on the same day. If she was not given notice before the order was made, contrary to s. 40(5) of the 1981 Act, should the order now be declared invalid or quashed? Or should relief be refused by the Court in the exercise of its discretion? And, if relief is granted, can the Home Secretary proceed to make another order straight away, or must she first consider up-to-date information?
Background
D4 is currently detained at Camp Roj in north-eastern Syria. She has been there since around January 2019. On 27 December 2019, the decision to deprive her of her British citizenship was made by the Chancellor of the Exchequer (in the Home Secretary's absence) and placed on D4's Home Office file. On the same day, officials acting on behalf of the Chancellor made an order depriving D4 of her citizenship. For all practical purposes, the decision and order can be and have been treated as made by the Home Secretary.
On 28 September 2020, D4's solicitors wrote a pre-action letter to the Foreign and Commonwealth Office asking them to assist in repatriating her. On 14 October 2020, the Home Office wrote to the solicitors informing them that she had been deprived of her British citizenship on 27 December 2019. This information was passed on to D4.
D4 then appealed to the Special Immigration Appeals Commission (“SIAC”) under s. 40A of the 1981 Act and s. 2B of the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”). One of her grounds of appeal was that reg. 10(4) of the Regulations was ultra vires and the deprivation order was therefore invalid.
D4 and her lawyers assumed that SIAC would determine this issue. On 18 March 2021, however, a panel of SIAC of which I was a member handed down a decision in C3, C4 and C7 v Secretary of State for the Home Department (SC/167/2020), in which the same issue arose in two of the three joined cases. At [116], we decided that the appeal to SIAC under s. 2B of the 1997 Act was from the decision to make the deprivation order, not the order itself. The requirement to give notice applied after making the decision, but before making the order. If the original notice was defective, that might affect the validity of the order, but not the validity of the decision to make it. Applying the reasoning of the Court of Appeal in S1 v Secretary of State for the Home Department [2016] EWCA Civ 560, [2016] 3 CMLR 37 and R (W2) v Secretary of State for the Home Department [2017] EWCA Civ 2146, [2018] 1 WLR 2380, we had no jurisdiction to consider whether the service of notice to file was valid. The appeals succeeded in any event on the ground that the orders would make the appellants stateless.
D4 therefore brought these judicial review proceedings. The specific relief sought was: (1) a declaration that reg. 10(4) of the Regulations is ultra vires ss. 40(5) and 41 of the 1981 Act; and (2) a quashing order to quash the deprivation order.
In her original appeal to SIAC, D4 also argued that, even if reg. 10(4) were valid, the Secretary of State could not rely on it because she did know D4's whereabouts and because her family still live at her previous address. But D4 has decided not to advance these contentions in this claim. I therefore need say nothing more about them.
On 14 June 2021, after considering the papers, Morris J granted an extension of time, permission to apply for judicial review and expedition.
The statutory scheme
The first Act which conferred power to deprive a person of the status of a British subject was the British Nationality and Status of Aliens Act 1914 (“the 1914 Act”), though the power was limited to revoking a certificate of naturalisation. Section 7(3) provided that, where the revocation was on certain grounds, “the Secretary of State shall, by notice given or sent to the last-known address of the holder, give him an opportunity of claiming that the case be referred for… inquiry”.
The 1914 Act was replaced by the British Nationality Act 1948 (“the 1948 Act”). The Summary of Main Provisions of the Bill shows that the 1948 Act intended to replicate s. 7. However, the 1948 Act did not deal with service on the last known address in the main body of the Act. Instead, in s. 29(1)(d), it conferred power to make regulations “for the giving of any notice required or authorised to be given to any person under this Act”.
A number of different provisions were made under this provision. For example, reg. 12 of the British Nationality Regulations 1948 (SI 1948/2721) and reg. 22(1) of the British National Regulations 1972 (SI 1972/2061) both made provision for service by post and, where a person's whereabouts were not known, on their last known address.
The 1981 Act has been amended many times, most recently by the Immigration Act 2014. As currently in force, it provides materially as follows:
“ 40. Deprivation of citizenship
…
(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
…
(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) or under section 2B of the Special Immigration Appeals Commission Act 1997.
…
40A. Deprivation of citizenship: appeal
(1) A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to the First-tier Tribunal.
(2) Subsection (1) shall not apply to a decision if the Secretary of State certifies that it was taken wholly or partly in reliance on information which in his opinion should not be made public—
(a) in the interests of national security,
(b) in the interests of the relationship between the United Kingdom and another country, or
(c) otherwise in the public interest.
…
41. Regulations and Orders in Council
(1) The Secretary of State may by regulations make provision generally for carrying into effect the purposes of this Act, and in particular provision—
(e) for the giving of any notice required or authorised to be given to any person under this Act…”
Section 2B of the 1997 Act provides:
“A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2)...”
When s. 40A was first inserted by the Nationality, Immigration and Asylum Act 2002 with effect from 1 April 2003, there was a provision preventing an order under s. 40 from being made in respect of a person while an appeal under that section or under s. 2B of the 1997 Act was pending or while time for appealing had not yet expired. That provision was removed by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. Paragraph 121 of the...
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