The Secretary of State for the Home Department v E3 and N3
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Flaux,Lord Justice Haddon-Cave |
| Judgment Date | 21 November 2019 |
| Neutral Citation | [2019] EWCA Civ 2020 |
| Date | 21 November 2019 |
| Docket Number | Case No: T2/2018/3082 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2020
Lord Justice Flaux
Lord Justice Singh
and
Lord Justice Haddon-Cave
Case No: T2/2018/3082
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
SC/138/2017 AND SC/146/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Sheldon QC and James Stansfeld (instructed by the Government Legal Department) for the Appellant
Hugh Southey QC and Alasdair Mackenzie (instructed by Duncan Lewis) for the Respondents
Hearing dates: 29 and 30 October 2019
Approved Judgment
Introduction
The Secretary of State appeals with the permission of the Special Immigration Appeals Commission (“SIAC”) (Mr Justice Jay, Upper Tribunal Judge Gleeson and Mrs J Battley) its decision dated 15 November 2018 overturning the orders of the Secretary of State dated 4 June 2017 and 3 November 2017, depriving E3 and N3 of their British citizenship under section 40(2) of the British Nationality Act 1981 (“the 1981 Act”).
The issue raised by the appeal is a narrow but nonetheless important one as to whether the Secretary of State was precluded by section 40(4) of the 1981 Act from making the orders, because they rendered E3 and N3 stateless.
Factual and procedural background
E3 was born in the UK on 27 May 1981 so that he was a British citizen at birth pursuant to the British Nationality Act 1948. His parents were both citizens of Bangladesh at the time of his birth and accordingly, he was a Bangladeshi citizen by descent under the Bangladesh Citizenship Act 1951, at least at the time of his birth.
On 2 June 2017, the Secretary of State gave E3 notice that she intended to make an order under section 40(2) of the 1981 Act, depriving E3 of his British citizenship, on the grounds that he was an Islamic extremist who had sought to travel abroad to participate in terrorist related activity and that he posed a threat to national security. The notice stated that, in accordance with section 40(4), the Secretary of State was satisfied that the order would not make E3 stateless.
N3 was born in Bangladesh on 12 December 1983 and acquired Bangladeshi citizenship at birth. His parents were both naturalised British citizens, so that he was also a British citizen at birth pursuant to section 2(1)(a) of the 1981 Act.
On 31 October 2017, the Secretary of State gave N3 notice that she intended to make an order under section 40(2) of the 1981 Act, depriving N3 of his British citizenship, on the grounds that he had travelled to Syria and aligned with an al-Qaeda aligned group and that he posed a threat to national security. The notice stated that, in accordance with section 40(4), the Secretary of State was satisfied that the order would not make N3 stateless.
Both E3 and N3 appealed those deprivation decisions to SIAC on a number of grounds, including that, at the date of the decisions they did not hold Bangladeshi nationality, so that the decisions rendered them stateless. SIAC decided to deal with the issue of statelessness as a preliminary issue. The proceedings in relation to that preliminary issue were conducted primarily in OPEN. Although there was a short CLOSED judgment, it is of no relevance to this appeal, which has been conducted entirely in OPEN.
The statutory framework: the 1981 Act
Section 40 of the 1981 Act provides, so far as relevant, as follows:
“(1) In this section a reference to a person's “citizenship status” is a reference to his status as—
(a) a British citizen…
(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.
(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.”
The key provisions of Bangladeshi law
Under section 4 of the Citizenship Act 1951 (formerly the Pakistani Citizenship Act 1951 amended in 1972 by Presidential Order after Bangladesh became independent) anyone born in Bangladesh after the commencement date is a citizen of Bangladesh by birth. By section 5, anyone born after the commencement date is a citizen of Bangladesh by descent if his father or mother was a citizen of that country at the time of his birth. Thus, section 4 applies to N3 and section 5 to E3.
Section 14 of the Citizenship Act 1951, as amended in 1972, provides as follows:
“Dual citizenship or nationality not permitted
Subject to the provisions of this section if any person is a citizen of Bangladesh under the provisions of this Act, and is at the same time a citizen or national of any other country, he shall, unless he makes a declaration according to the laws of that country renouncing his status as a citizen or national thereof, cease to be citizen of Bangladesh.
( IA) Nothing in sub-section (1) applies to a person who has not attained twenty-one years of age.”
On 15 December 1972, the Bangladeshi Citizenship (Temporary Provisions) Order (No 149 of 1972) (“the 1972 Order”) was enacted with effect from independence on 26 March 1971. By Article 2:
“Notwithstanding anything contained in any other law, on the commencement of this Order, every person shall be deemed to be a citizen of Bangladesh –
(i) who or whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25 th day of March 1971, and continues to be so resident; or
(ii) who was a permanent resident [of Bangladesh on 25 th March 1971 and continues to be so].”
On 23 May 1973 the 1972 Order was amended by Article 2 of the Bangladeshi Citizenship (Temporary Provisions) (Amendment) Act 1973 to add these Articles:
“2A. A person to whom Article 2 would have been ordinarily applied but for his residence in the United Kingdom shall be deemed to be permanent resident in Bangladesh.
Provided that the Government may notify, in the Official Gazette, any person or categories of persons to whom this article shall not apply.
2B. Notwithstanding anything contained in any other law for the time being in force or in this Order, a person –
(i) owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state or
(ii) is notified under the proviso to Article 2A
shall not qualify himself to be a citizen of Bangladesh.”
That version of Article 2B was replaced in 1978 by the following wording, enacted in primary legislation in the form of a military ordinance:
“2B (1) Notwithstanding anything contained in Article 2 or in any other law for the time being in force, a person shall not, except as provided in clause (2), qualify himself to be a citizen of Bangladesh if he –
(i) owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state or
(ii) is notified under the proviso to Article 2A:
Provided that a citizen of Bangladesh shall not, merely by reason of being a citizen or acquiring citizenship of a state specified in or under clause (2), cease to be a citizen of Bangladesh.
(2) The Government may grant citizenship of Bangladesh to any person who is a citizen of any state of Europe or North America or of any other state which the Government may, by notification in the Official Gazette, specify in this behalf.”
All these provisions were enacted in English. On 18 March 2008 a statutory notification (SRO No. 69) was issued in the Bangla language by order of the President of Bangladesh (“the 2008 Instruction”). SIAC found that the following was the most authoritative and coherent translation of the 2008 Instruction into English:
“The Government, in the exercise of the power conferred in sub-article (2) of article 2B [of the 1972 Order as amended] by cancelling all the circulars or directives or orders or notifications issued hereinbefore in this behalf, has issued the following directives only in the case of the United Kingdom as regards granting or continuation of Bangladeshi citizenship of those Bangladeshis who have acquired citizenship of the United Kingdom:
a) The Bangladeshi citizenship of any citizen of Bangladesh according to the law as in force in Bangladesh shall remain as it is notwithstanding their acquiring citizenship of the United Kingdom, unless the oath to be taken for acquiring citizenship of that country does contain any oath to renounce allegiance to their own country (Bangladesh);
b) In the aforesaid circumstances, the citizen of Bangladesh, who has acquired citizenship of the United Kingdom, shall not be required to obtain dual citizenship from the Government of Bangladesh;
c) All Bangladeshis who have acquired citizenship of the United Kingdom may retain and use their Bangladeshi passports;
d) On the expiry of their validity, their passports shall have to be renewed as usual;
e) Bangladeshi passports can be issued again to those who had previously acquired citizenship of the United Kingdom.
2. This order shall be applicable only in the case of citizens of Bangladesh acquiring citizenship of the United Kingdom.
3. This order is issued in the public interest and shall come into force forthwith”.
These provisions, up to and including the 2008 Instruction, were considered by SIAC (Lane J presiding) in an earlier judgment in G3 v SSHD (SC/140/2017). Having heard and considered expert evidence on Bangladeshi law, SIAC concluded that the 2008 Instruction did not apply to G3 because it did not apply to those who had acquired British citizenship at birth. The Secretary of State had produced limited evidence in that case from the Bangladeshi authorities as to how the 2008 Instruction applied in practice, in the form of an email from the High Commission in Bangladesh reporting on what had been said by their Honorary Legal Adviser, also a senior lawyer of the Supreme Court of...
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