Supreme Court adopts “nuanced” approach in deprivation of citizenship appeal

In two joined appeals, the Supreme Court has held that a successful challenge to a deprivation decision will mean that British citizenship was retained throughout the period from the date the deprivation order was made until the date of the appeal decision, but the effect of the deprivation order will remain in place for the purposes of immigration enforcement action taken during that time. The case is N3 v Secretary of State for the Home Department [2025] UKSC 6. The Joint Council for the Welfare of Immigrants intervened in the case by way of written submissions.

Background

E3 was born in the UK on 27 May 1981 and was a British citizen from birth. Both of his parents were Bangladeshi citizens when he was born and so at that time he was also a Bangladeshi citizen by descent. On 4 June 2017 the Home Secretary made an order depriving him of his British citizenship on the grounds that it was conducive to the public good and the Home Secretary was satisfied that he would not be rendered stateless by the decision.

N3 was born in Bangladesh on 12 December 1983 to his British citizen parents, so he acquired Bangladeshi citizenship at birth and was also a British citizen under section 2(1)(a) of the British Nationality Act 1981. On 3 November 2017 the Home Secretary made an order depriving him of his British citizenship.

On 15 November 2018, the Special Immigration Appeals Commission allowed the joined appeals of E3 and N3 on the grounds that they had ceased to be Bangladeshi citizens when they turned 21. The Home Secretary appealed that decision.

On 10 June 2019, E3’s daughter ZA was born in Bangladesh. If E3 was a British citizen at the time of her birth then ZA would also be a British citizen under section 2(1)(a) of the British Nationality Act 1981.

On 21 November 2019 the Court of Appeal allowed the Home Secretary’s appeal and the case was remitted to SIAC. E3 and N3 applied for permission to appeal that decision to the Supreme Court.

On 20 April 2021, the Home Secretary withdrew the deprivation orders and advised E3 and N3 that their British citizenship had “been reinstated”. This followed SIAC’s decision in C3, C4 and C7 v Secretary of State for the Home Department (SC/167/2020, SC/168/2020 and SC/171/2020)that the individuals had lost their Bangladeshi citizenship when they turned 21, meaning that depriving them of British citizenship would make them stateless (our coverage is here).

Lawyers for E3 and N3 responded, stating that the deprivation decisions had been a nullity meaning that the appellants’ British citizenship had remained intact throughout. In response, the Home Secretary maintained that the deprivation orders were lawful at the time they were made. This was because she was not satisfied that the appellants would be made stateless. Her position was that the later decision to reinstate citizenship did not make the original decisions unlawful and citizenship did not continue for the period between deprivation and reinstatement.

The appeals against the deprivation decisions were ended following the withdrawal of the decision under challenge and instead the appellants sought judicial review of the Home Secretary’s refusal to accept that they had maintained their citizenship between the withdrawal and reinstatement decisions.

Both the High Court and the Court of Appeal dismissed the appeals. N3 and ZA appealed to the Supreme Court.

The Supreme Court’s decision

The issue to be determined by the Supreme Court was:

If the Secretary of State withdraws an order depriving a person of citizenship because they accept that the order has made the person stateless, does this mean that the original order is of no effect and the person affected has always retained their British citizenship?

The parties agreed that the effect of SIAC allowing an appeal and the Home Secretary withdrawing the decision was the same. The court identified three possible outcomes following a successful appeal: that the deprivation order be treated as a nullity from the outset, that it will be treated as having no effect only from the date of the the outcome of the appeal, or a combination of those options.

The court started by pointing out that there were no statutory provisions explaining what should happen in this situation, and that the legislation therefore “operates on the basis of an assumption that the ordinary principles governing the effect of an appeal will apply” [at 50].

For context, the Supreme Court then looked at two amendments that were made to section 40A but then subsequently repealed.

The first was section 40A(6), which was added to the British Nationality Act 1981 in 2002. This provided that a deprivation order could not be made under section 40 while an appeal could be brought or until any appeal against the decision had been concluded. The amendment was repealed in 2004, meaning that the Home Secretary could make the deprivation order even where the decision was under appeal.

The effect of this was that as soon as the order was made, the affected person could have removal action taken against them or, if they had left the UK they could be prevented from re-entering. The Supreme Court noted that the repeal of the amendment affects when the deprivation order can be made but not the consequences of a successful appeal, which is that the Home Secretary is bound by the tribunal or SIAC’s decision.

If this amendment was still in force then the issues in this appeal would not have arisen as the deprivation orders would not have been made until conclusion of the appeals and in the meantime E3 and N3 would have retained their British citizenship. The court said that [at 56]:

the purpose of the repeal of the amendment was to facilitate enforcement and thereby protection of the public at an earlier stage. It was not the purpose to enable the United Kingdom to breach its treaty obligation under the Statelessness Convention by making E3 and N3 stateless during the intervening period.

The second amendment considered by the Supreme Court was made in 2004, when the first amendment was repealed, as part of section 40A(3) of the 1981 Act. This gave the tribunal and SIAC discretion to order that a deprivation order “be treated as having had no effect”. This provision was repealed in 2014.

The Court of Appeal had considered this point and concluded that the introduction of such a power meant that Parliament considered that the other provisions in section 40 and 40A did not provide for such a discretion. However the Supreme Court considered that the position was more nuanced [at 60].

Two grounds of appeal were considered by the court. The first was referred to by the court as relying on a “precedent fact analysis”. The submission on behalf of the appellant was “the effect of the appeal being allowed by SIAC, on the basis that E3 would be rendered stateless by a deprivation order, is that the deprivation order is automatically of no effect, because a precedent fact necessary for the making of the order has been shown not to exist” [at 72].

The court dismissed this ground, saying that:

as a matter of the proper construction of section 40(4) read with section 40(5) the power of the Secretary of State to make the deprivation decisions and the deprivation orders depends on his or her forming a subjective opinion as to statelessness which complies with the usual public law standards referred to above. It does not depend on an absence of statelessness as a precedent fact [at 83].

The appellant’s second ground of appeal was that once SIAC had made a determination of statelessness (or the point was conceded by the Home Secretary), then the result was that the deprivation order had to be regarded as unlawful. This would mean that if the person had been detained during the period between the order being made and the appeal succeeding, they would have a good claim for false imprisonment. The court said that this would “undermine the intended effect of the applicable statutory provisions”.

The Home Secretary’s argument on this ground, which had been accepted by the Court of Appeal, was that “that the 1981 Act contained no mechanism to undo the effect of the deprivation order made by the Secretary of State, meaning that further action was required by the Secretary of State to withdraw it and it would continue to have effect until so withdrawn”. The Supreme Court also rejected this argument and said that the “proper analysis involves a middle position”.

The middle position adopted by the court was that the statutory provisions had been enacted in order to provide legal protection for the Home Secretary to carry out immigration enforcement actions based on the deprivation order, and those must be given effect. The court also held that:

for the purpose of determining the individual’s 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 on the basis of that order was unlawful) the order is to be treated as having no effect: the individual is to be regarded as having been a British citizen throughout.

This meant that ZA’s appeal was successful and she was born a British citizen, and N3’s appeal was successful in part.

Conclusion

The court said that, as a matter of good practice, the Home Secretary should formally withdraw the deprivation order from the date of the SIAC or tribunal decision, however whether or not this is done will have no effect on the binding nature of the decision.

This is an excellent result for ZA and any other affected children.