Secretary of State for the Home Department v E3 and N3

Parties (including notable third parties)

E3 and N3 (Appellants); The Secretary of State for the Home Department (Respondent)

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Summary of Facts

E3 was born in the United Kingdom on 27 May 1981 and was therefore a British citizen at birth under the British Nationality Act 1948. His parents were both citizens of Bangladesh at the time of his birth, making him a Bangladeshi citizen by descent under the Bangladesh Citizenship Act 1951.

N3 was born in Bangladesh on 12 December 1983 and acquired Bangladeshi citizenship at birth, but because his parents were naturalised British citizens, he was also a British citizen at birth under Section 2(1)(a) of the British Nationality Act 1981 (‘1981 Act’).

On 2 June 2017, the Secretary of State gave E3 notice of intention to deprive him of his British citizenship under Section 40(2) of the 1981 Act, on the grounds that he was an Islamic extremist who had sought to travel abroad to participate in terrorist-related activity and posed a threat to national security. The notice stated that the Secretary of State was satisfied the order would not make E3 stateless. Similarly, on 31 October 2017, the Secretary of State gave N3 notice of intention to deprive him of his British citizenship, on the grounds that he had travelled to Syria, aligned with an al-Qaeda group, and posed a threat to national security. Again, the notice stated that the order would not render N3 stateless.

Both E3 and N3 appealed the deprivation decisions to the Special Immigration Appeals Commission (SIAC) on several grounds, including that at the date of the decisions they did not hold Bangladeshi nationality, meaning the deprivation orders would render them stateless.

SIAC decided to deal with the issue of statelessness as a preliminary issue.

For context, this case involved interpretation of key provisions of Bangladeshi law, including Section 14 of the Citizenship Act 1951 (which prohibits dual citizenship unless a declaration renouncing the other nationality is made), the Bangladeshi Citizenship (Temporary Provisions) Order 1972, and a 2008 Instruction (SRO No. 69) which provided that Bangladeshi citizens who acquired British citizenship could retain their Bangladeshi nationality. A Note Verbale from the Bangladeshi Ministry of Foreign Affairs dated 3 June 2018 confirmed that SRO No. 69 applied retrospectively to those who acquired British citizenship at birth and to those who had reached the age of 21 prior to 18 March 2008. In other words, Bangladeshi law generally does not allow dual citizenship, meaning E3 and N3 would have automatically lost their Bangladeshi citizenship when they turned 21. The British Government argued that the 2008 Instruction reversed this, restoring Bangladeshi citizenship to people like E3 and N3, and that the Note Verbale confirmed that the instruction applied retrospectively, even to those who had already turned 21 before 2008.

This meant the British Government claimed the men were still Bangladeshi citizens, so depriving them of British citizenship would not leave them stateless. The Appellants argued the letter was not legally binding and did not actually restore their nationality.

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Legal Arguments

Legal Arguments by the Appellants

The Appellants submitted that there was no dispute that both E3 and N3 lost their Bangladeshi nationality on attaining the age of 21 in 2002 and 2004 respectively, and that the central issue was whether the 2008 Instruction had ‘retrospective effect to restore their Bangladeshi nationality in 2008.’ He argued that SIAC had rightly given significant weight to the language of the 2008 Instruction, noting that the opening words stating Bangladeshi citizenship ‘shall remain as it is’ were inconsistent with retrospective effect.

Regarding the Note Verbale, he submitted that it was ‘notably bereft of reasoning and analysis,’ ‘no more than an opinion and so of little weight,’ with no statement as to the basis for saying the 2008 Instruction had retrospective effect. On the burden of proof, he relied on the principle that citizenship was a fundamental right and that it was for the Secretary of State to justify deprivation. He argued that establishing that the Appellants would not be rendered stateless was a condition precedent and therefore the burden of proof should be on the Secretary of State.

Legal Arguments by the Defendant

The Secretary of State argued that SIAC had erroneously stated that the burden of proof on the issue of statelessness was on the Secretary of State throughout.

He submitted that ‘the burden of proof on the issue of statelessness was on E3 and N3 throughout’ as the Appellants, citing authority including the Court of Appeal decision in Hashi and the SIAC decision in R3 v SSHD. He contended that there was ‘no justification anywhere in that line of authority for treating different parts of the evidential picture on the issue of statelessness differently and applying a different burden of proof, dependent upon who adduces and relies upon the particular piece of evidence.’ He further submitted that SIAC had mischaracterised the Note Verbale, arguing that it was not merely evidence of practice but rather ‘a statement by the Bangladeshi government of the law.’ He argued that the Note Verbale was ‘the best evidence by far as to the application of the 2008 Instruction, both as to its interpretation and its application in practice,’ and that if SIAC had characterised it correctly and applied the correct burden of proof, it would have concluded that E3 and N3 had not established that they were stateless.

Outcome

The Court of Appeal allowed the Secretary of State's appeal. The Court found that SIAC had made two legal errors:

First, SIAC applied the wrong approach to the burden of proof. The Court held that ‘the burden of proof on the issue of statelessness was on E3 and N3 throughout,’ not on the Secretary of State. Once the Secretary of State had demonstrated that she was satisfied the deprivation order would not render the individual stateless, the burden shifted to the Appellant to prove otherwise.

Second, the Court found that SIAC had mischaracterised the Note Verbale. The Court held that the Note Verbale was an official document which complied with all the relevant formalities and that SIAC had wrongly treated it as only evidence of or an opinion about practice rather than as an official statement on the application of Bangladeshi law.

Rather than substitute its own findings of fact, the Court remitted the case to a ‘differently constituted Commission’ (a new panel of SIAC) to decide the issue of statelessness afresh, applying the correct burden of proof and giving proper consideration to the status and effect of the Note Verbale. The Court also noted that it would be open to E3 and N3 before the reconstituted Commission to adduce any evidence suggesting inconsistency of approach on the part of the Bangladeshi government. The Court did not need to consider the second ground of appeal because the appeal had already succeeded on the first ground.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention relating to the Status of Stateless Persons (1954)	Article 1(1): Definition of ‘stateless person’ (a person not considered a national by any State under the operation of its law)
Domestic	British Nationality Act 1981	Section 2(1)(a): Acquisition of British citizenship at birth by descent; Section 40: Deprivation of citizenship status
Domestic	Citizenship Act 1951 (Bangladesh)	Section 4 and 5
Domestic	Bangladeshi Citizenship (Temporary Provisions) Order (1972) and Bangladeshi Citizenship (Temporary Provisions) (Amendment) Act 1973	Article 2

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.