N3 (AP) v Secretary of State for the Home Department & ZA (AP) v Secretary of State for the Home Department

Parties (including notable third parties)

N3 (Appellant); Secretary of State for the Home Department (Respondent)

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Summary of Facts

This appeal concerns the lawfulness of an order depriving a person of their British citizenship and the effect on citizenship of the withdrawal of such an order. N3 is a British Citizen who was born in Bangladesh. E3 is a British citizen who was born in the United Kingdom. Both sets of parents of N3 and E3 were naturalised British citizens when N3 and E3 were born. Due to the similarities between the cases, the cases were heard together.

In 2017, the Secretary of State made orders under section 40 of the British Nationality Act 1981 (‘the 1981 Act’) depriving N3 and E3 of their British citizenship on the basis that they had participated in Islamic terrorist organisations and that they posed a threat to national security. It was the view of the Secretary of State that both N3 and E3 were dual citizens of the UK and Bangladesh, so depriving them of their British citizenship would not leave them stateless.

On 10 June 2019, E3’s daughter, ZA, was born in Bangladesh. If E3 has been a British citizen at the time of her birth, ZA would have qualified for British citizenship by descent.

Both E3 and N3 appealed to the Special Immigration Appeals Commission (‘SIAC’) against the deprivation orders made by the Secretary of State. They argued, inter alia, that they had lost their Bangladeshi citizenship at age 21 and that the order would therefore leave them stateless, contrary to Section 40(4) of the 1981 Act.

In March 2021, the SIAC ruled on other cases concerning deprivation orders made against other alleged dual citizens of the UK and Bangladesh. The SIAC found that the individuals in question had lost their citizenship at age 21, and as such depriving them of their British citizenship would therefore render them stateless.

Following this judgment, the Secretary of State wrote to E3 and N3 stating that the deprivation orders had been withdrawn and that their British citizenship had been reinstated. Solicitors acting for E3 and N3 replied to the Secretary of State, refuting that their citizenship needed to be reinstated and arguing instead that the deprivation orders had always been unlawful and never had effect, with the result that E3’s and N3’s British citizenship had always remained intact. Lawyers for E3 pointed out this would mean that ZA had British citizenship. The Secretary of State disagreed; they were of the view that E3 and N3 had not been British citizens during the time in which the deprivation orders were in force.

In 2021, N3, E3 and ZA sought judicial review of the Secretary of State’s refusal to accept that E3 and N3 were British citizens during the relevant period. Their claims were dismissed by the High Court, and their appeals were dismissed by the Court of Appeal. They now appeal to the Supreme Court.

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Legal Arguments

Legal Arguments by the Appellants

The Appellants made two arguments. Firstly, that the lawful exercise of the power to deprive a person of their British nationality by the Secretary of State required the establishment of the ‘precedent fact’ that a person would not be rendered stateless as a result. If this was not established, the deprivation order could have no effect. Secondly, the Appellants argued that the effect of the withdrawal of a deprivation order is that the order is to be treated as never having existed in the first place.

Legal Arguments by the Respondent

The Secretary of State argued that if a deprivation order had validity and legal effect in a period until a contrary determination was made, the order had to be treated as being valid in that period for all purposes. This would mean that N3 and E3 were not British nationals during the period in which the order was in force, and that consequently ZA did not acquire British citizenship by virtue of E3 not being a British citizen in that period.

Outcome

The Supreme Court held that if a deprivation order is withdrawn, it is to be treated as having no effect for the purpose of determining an individual’s citizenship status in the period from the date of the making of the order until it is withdrawn. The outcome was that E3 and N3 were regarded as having British citizenship throughout this period, and ZA qualified for citizenship by descent.

The Court rejected the Appellants’ first argument that the issuance of a deprivation order by the Secretary of State under Section 40 of the 1981 Act depends on establishing the absence of statelessness as a ‘precedent fact’. Rather, the correct interpretation of this provision is that the Secretary of State must form a subjective opinion regarding whether an order would make the person stateless before making the deprivation order.

The Court rejected both the Appellants’ second argument (that the effect of the withdrawal of a deprivation order is that the order is to be treated as never having existed in the first place) as well as the Respondent’s argument that a deprivation order has legal effect, even if that order is later overturned. Rather, the Court held that the ‘legal effect of a failure to comply with a condition for the exercise of a power conferred by a statute, where that is not spelled out expressly, depends upon an inference as to Parliament’s intention as to what that effect should be’ (paragraph 88). Applying principles of statutory interpretation, the Court determined that a legal effect which advances the provision’s purposes (protecting the Secretary of State and her officials in relation to immigration enforcement measures in the period before the determination of an appeal by SIAC) while also balancing the ‘fundamental right of citizenship’ and the protection of the applicants’ rights to not be rendered stateless under the Convention on the Reduction of Statelessness 1961 is the following:

‘Once SIAC determines that a deprivation order would render the individual stateless and allows the appeal against the order (or the Secretary of State concedes that SIAC must allow the appeal), then for the purpose of determining the individual’s citizenship status in the period from the date of the making of the order until the appeal is allowed (as distinct from the purpose of deciding whether immigration enforcement action taken in that period was lawful) the order is to be treated as having no effect’ (paragraph 90).

The consequence was that both N3 and E3 were regarded as having been a British citizen throughout the relevant period, and ZA was a British citizen by descent.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	British Nationality Act 1981	Sections 1-11, 40
International	Convention on the Reduction of Statelessness 1961	Article 8(1)
Domestic	Special Immigration Appeals Commission Act 1997	Section 2B

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.