When the Home Office withdraws a decision to deprive someone of their British citizenship, does the person get their citizenship back (prospective) or was it never lost in the first place (retroactive)? This was the deceptively simple question that the High Court grappled with in E3 & Ors v Secretary of State for the Home Department [2022] EWHC 1133 (Admin), eventually concluding that the effect of withdrawal is prospective only.

Incorrect citizenship deprivation decision by Home Secretary, which was later withdrawn, still means man’s daughter, who was born in the meantime, is not British. Very serious consequences for entirely blameless child. https://t.co/kCHYUyqWrw

— Colin Yeo (@ColinYeo1) May 16, 2022

In 2017, the Home Office made orders stripping the applicants, “E3” and “N3”, of their British citizenship. At the time, officials thought they would not be rendered stateless because they had Bangladeshi citizenship. After lengthy litigation, the Home Office withdrew its original decisions in April 2021, accepting that the decision would have rendered them stateless.

E3 had a daughter born abroad after the decision to deprive him of citizenship had been made and before that decision was withdrawn. If E3’s citizenship was never lost in the first place, his daughter would be automatically a British citizen by descent. If not, she would face a hefty bill to register as a British citizen. 

The Home Office argued that the withdrawal of the decision did not mean the original decision was unlawful. Section 40(4) of the British Nationality Act 1981 provides that:

the Secretary of State may not make an order under subsection (2) if [s]he is satisfied that the order would make a person stateless.

This, the Home Office argued, goes to a state of mind. Section 40(4) does not say, for example, “the Secretary of State may not make an order under subsection (2) if the effect of the order would be to make a person stateless”. On the evidence available in 2017, the Secretary of State was satisfied that the orders would not lead to statelessness. It is only later that new evidence emerged to change her mind.

It’s obvious that Mr Justice Jay did not find this an easy issue to resolve. But he ultimately agreed with the Home Office. The need to be “satisfied” that a person will not become stateless is a “condition precedent” to the exercise of the deprivation power. If the deprivation is successfully challenged on appeal, “that condition precedent is not displaced; rather, a conclusion has been reached… that the Defendant came to the wrong factual conclusion”.

He separately held that the 1981 Act permits a challenge against the “decision to make an order”, rather than the order itself. A successful appeal leaves the order “unaffected in terms of its legal propriety”.

As a result:

the effect of the withdrawal decisions in the instant cases was prospective only. The Defendant was not conceding that the decisions were unlawful at the time they were made; she was accepting that, in view of SIAC’s very clear conclusions in parallel litigation, these deprivation orders could not stand. The Defendant cannot be interpreted as impliedly stating that the deprivation orders never had legal effect and she was not required to do so.

Basically: even if the Home Office is wrong, if it had a reasonable belief about what it ended up being wrong about, the person deprived of their citizenship suffers the consequences.