R (N3) v Secretary of State for the Home Department

Held, allowing in part the second claimant’s appeal and allowing the third claimant’s appeal, (1) that, on a proper construction of section 40(4) of the British Nationality Act 1981 read with section 40(5), the power of the Secretary of State to make deprivation decisions and deprivation orders under section 40(2) depended on his or her forming a subjective opinion as to statelessness which complied with the usual public law standards, rather than on an absence of statelessness as a precedent fact; that such a construction was consistent with (i) the plain meaning of section 40(5) read with section 40(4), (ii) the absence of language in section 40(4) specifying that the possession of dual nationality on the part of the person concerned was a precedent fact for the exercise of the power, (iii) authorities which illustrated the difference between a statutory regime where the exercise of a power depended on the exercise of a precedent fact and a statutory regime where the relevant power was stated to exist if the decision-maker formed a subjective opinion, (iv) the contrast between section 40(4), which made the prohibition on the Secretary of State making a deprivation order dependent on the Secretary of State being satisfied regarding a particular state of affairs, and section 40(5), which made the giving of a written notice to the person concerned a precedent fact condition for the making of a deprivation order, and (v) the distinct function of SIAC on an appeal under section 2B of the Special Immigration Appeals Commission Act 1997, which was to make an objective decision as to whether the person concerned would be rendered stateless by a deprivation order; and that, therefore, the Secretary of State’s power to make a deprivation order in respect of the second claimant had not been contingent on that order not rendering the second claimant stateless as a matter of objective fact (post, paras 73–83).

R (Lim) v Secretary of State for the Home Department [2008] INLR 60, CA, Secretary of State for the Home Department v JJ [2008] AC 385, HL(E) and R (A) v Croydon London Borough Council [2009] 1 WLR 2557, SC(E) considered.

(2) That section 40 of the 1981 Act and section 2B of the 1997 Act were to be interpreted in a way which both (i) respected and protected the individual rights of persons subject to deprivation orders according to the principle of legality and under the 1961 Convention on the Reduction of Statelessness and (ii) gave effect to the statutory purpose of providing legal protection for the Secretary of State and his or her officials in relation to immigration action taken on the basis of a deprivation of citizenship according to his or her order; that, thus, where SIAC allowed an appeal against a deprivation order on the basis that such order would render the person concerned stateless (or the Secretary of State conceded that SIAC would have to allow such an appeal on that basis) then, for the purpose of determining the status of the person concerned in the period from the date of making the deprivation order until the appeal was allowed or conceded (as distinct from the purpose of deciding whether immigration enforcement action taken in that period on the basis of the deprivation order was unlawful), the order was to be treated as having no effect and the person concerned was to be regarded as having been a British citizen throughout; that, moreover, it followed that once SIAC had made its determination that a deprivation order would make the person concerned stateless and allowed an appeal against it, the Secretary of State was bound by that determination for all purposes (other than in the respect of the validity of immigration enforcement action taken on the basis of the deprivation order up to the time the appeal against it was allowed) without anything more having to be done; and that, accordingly, the second claimant was to be regarded as having been a British citizen throughout, with the consequence that the third claimant was a British citizen by virtue of the first claimant’s status as a British citizen at the time of her birth (post, paras 87–92, 94).

R v Soneji [2006] 1 AC 340, HL(E) and A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] 3 WLR 601, SC(E) applied.

Per curiam. As a matter of good practice and for good order, the Secretary of State should formally withdraw a deprivation order as from the date on which SIAC makes an order allowing an appeal under section 2B of the 1997 Act, to minimise the risk of confusion. But the binding effect of such an order does not depend on the taking of such an administrative step (post, para 93).

Decision of the Court of Appeal sub nom R (E3) v Secretary of State for the Home Department [2023] EWCA Civ 26; [2023] KB 149; [2023] 2 WLR 937; [2023] 3 All ER 564 reversed.