The Queen (on the application of D4) (Notice of Deprivation of Citizenship) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lady Justice Whipple,Sir Geoffrey Vos |
| Judgment Date | 26 January 2022 |
| Neutral Citation | [2022] EWCA Civ 33 |
| Docket Number | Case No: CA-2021-000739 (formerly C4/2021/1553) |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 33
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE CHAMBERLAIN
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Baker
and
Lady Justice Whipple
Case No: CA-2021-000739 (formerly C4/2021/1553)
Lisa Giovannetti QC and Andrew Deakin (instructed by the Treasury Solicitor) for the Appellant
Dan Squires QC and Ayesha Christie (instructed by Birnberg Peirce) for the Respondent
Hearing date: 7 December 2021
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on Wednesday 26 January 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
Introduction
The Issue
This appeal raises the issue of whether Regulation 10(4) of the British Nationality (General) Regulations 2003 (the “2003 Regulations”) is ultra vires. Regulation 10(4) permits the Home Secretary to serve notice of a decision to deprive a person of their citizenship under section 40 of the British Nationality Act 1981 (the “1981 Act”) by placing a copy of that notice on the person's file at the Home Office.
D4 succeeded in her challenge before Chamberlain J. He decided that regulation 10(4) was ultra vires. He declared that provision and the order purportedly depriving D4 of her nationality under section 40(2) of the 1981 Act to be nullities, and he declared that D4 remained a British citizen. The Home Secretary appeals that decision.
The issue raised in this appeal is one of statutory construction going to the vires of regulation 10(4). There may be many good reasons why the Home Secretary might wish to be able to serve notices to file in some circumstances. But this appeal is not about the merits of having such a provision, but rather about whether regulation 10(4) goes beyond what was permitted by the statute.
Background Facts
The Claimant is a woman born in 1967 who has been detained at Camp Roj in north-eastern Syria since January 2019. She was born in the United Kingdom and had British nationality from birth. She also has Pakistani nationality. 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, on grounds that the decision was conducive to the public good. He certified that the decision was made on information which should not be made public in the interest of national security and accordingly that D4's right of appeal lay to the Special Immigration Appeals Commission (“SIAC”). That decision was placed on D4's Home Office file, in reliance on a note provided by officials which recorded that:
“[Home Office Legal Advisors] advised that service to file was appropriate, given that we do not know [D4's] current precise whereabouts so as to somehow effect service on [ sic] the notice on her. We assess that her last known address in the UK is no longer in use by [D4]. …”
On the same day, officials acting on behalf of the Chancellor made an order depriving D4 of her citizenship.
Chamberlain J treated the decision and order as having been made, for all practical purposes, by the Home Secretary, and I do the same.
On 28 September 2020, D4's solicitors asked the Foreign and Commonwealth Office for assistance in repatriating her, by way of pre-action protocol letter. On 14 October 2020, the Home Office wrote to the solicitors telling them that she had been deprived of her citizenship on 27 December 2019. This was the first time that the deprivation of citizenship had been communicated to D4 or her advisors. D4 appealed to SIAC, as she was entitled to do under section 2B of the SIAC Act 1997. One of her grounds of appeal was that Regulation 10(4) of the 2003 Regulations was ultra vires and that the deprivation order was therefore invalid. However, in C3, C4 and C7 v Secretary of State for the Home Department (SC/167/2020), another deprivation of nationality case which was handed down on 18 March 2021, SIAC determined that it lacked jurisdiction to determine whether service to file was lawful.
The Judicial Review
In consequence, D4's solicitors issued this judicial review on 29 March 2021, seeking an extension of time for judicial review as well as expedition so that this judicial review could be determined in advance of the substantive appeal in SIAC scheduled for July 2022. Morris J granted permission, extension of time and expedition by order dated 14 June 2021.
Chamberlain J heard the judicial review on 22 July 2021, handing down judgment on 30 July 2021. Chamberlain J granted the application for judicial review, refused permission to appeal but granted a stay pending the Home Secretary's application to this court.
The Home Secretary was granted permission to appeal on the papers by Nicola Davies LJ, on the single ground that Chamberlain J erred in law in concluding that Regulation 10(4) of the 2003 Regulations was ultra vires. She extended the stay for the duration of this appeal or until further order.
In seeking permission to appeal, the Home Secretary advanced a second ground of appeal which raised a new point about relief, submitting that the judge was wrong to declare the order a nullity. Permission to appeal was refused on that second ground. In consequence, we have not heard argument on any aspect of relief, and our attention has been focussed only on the single ground for which permission was granted concerning the vires of regulation 10(4).
Before this Court D4 was represented by Dan Squires QC and Ayesha Christie, and the Home Secretary was represented by Lisa Giovannetti QC and Andrew Deakin. I am grateful to all counsel and their respective legal teams for preparing this appeal in a short timeframe and for their careful submissions which have been of great assistance.
Legislation
Section 40 of the 1981 Act is headed “Deprivation of Citizenship” and provides as follows:
“…
(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.”
Although the language of the Act has changed over time, section 40 has always contained provisions permitting the Secretary of State to deprive a person of their citizenship in certain circumstances, but has also always contained a requirement that before making an order depriving citizenship, the Secretary of State shall give notice in writing to the person against whom the order is proposed to be made, setting out the grounds or reasons for the order and informing the person of their right to appeal (or, at the date of inception of the Act, to the right of “inquiry” by a committee of inquiry). The current version of section 40 has been in place since 28 July 2014.
Section 40A of the 1981 Act was first introduced in 2003 and the current version has been in effect since 20 October 2014. It is headed “Deprivation of citizenship: appeal”. It provides a right of appeal to the First-tier Tribunal except where the decision was taken for certain specified reasons, including “in the interests of national security”, see section 40A(2)(a). In national security cases, a right of appeal lies to SIAC instead, pursuant to section 2B of the SIAC Act 1997 (the “1997 Act”).
As originally enacted, section 40A(6) of the 1981 Act provided that appeals under sections 40A(1) of the 1981 Act or section 2B of the 1997 Act were suspensive, and that no order depriving a person of citizenship could take effect while an appeal was pending. But that provision was repealed by paragraph 4 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 with the effect that a deprivation order now takes effect from the moment that it is made, but that order remains subject to a (non-suspensive) right of appeal.
Section 41 of the 1981 Act is headed “Regulations and Orders in Council” and provides, so far as relevant, that:
“(1) The Secretary of State may by regulations make provision generally for carrying into effect the purposes of the Act, and in particular provision –
…
(e) for the giving of any notice required or authorised to be given to any person under this Act;
…
(3) Regulations under subsection ( 1) or (2) may make different provision for different circumstances, …”
Although section 41 has been subject to a number of amendments over time, the general power to make regulations in section 41(1) and the specific power to make regulations for the giving of notice in sub-section 41(1)(e) are in the same form as originally enacted.
The 2003 Regulations came into force on 1 April 2003. The preamble to those Regulations stated that they were made pursuant to powers conferred on the Secretary of State by section 41(1) and (3) of the 1981 Act.
As originally enacted, and until 9 August 2018, regulation 10 provided:
“(1) Where it is proposed to make an order under section 40 of the Act depriving a person of a citizenship status, the notice required by section 40(5) of the Act to be given to that person may be given—
(a) in a case where that person's whereabouts are known, by...
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