In a case that sent me googling the definition and pronunciation of Note Verbale (“a diplomatic communication prepared in the third person and unsigned: less formal than a note but more formal than an aide-mémoire”; pronounced nawt ver-bal), the Court of Appeal has issued a judgment that, at first blush, looks relevant to the highly publicised citizenship deprivation case of Shamima Begum.

Secretary of State for the Home Department v E3 & Anor [2019] EWCA Civ 2020 is a successful government appeal against a decision of the secretive Special Immigration Appeals Commission. The original SIAC case had arisen after the Secretary of State’s attempt to revoke the British citizenship of two individuals of Bangladeshi origin under section 40(2) of the British Nationality Act 1981. Both were allegedly involved with terrorist groups and posed a threat to national security.

The men successfully appealed to SIAC last year on the ground that deprivation of British citizenship would render them stateless as they did not hold Bangladeshi citizenship at the date of the decision. The case involved a detailed exploration of the nationality laws of Bangladesh insofar as they interact with the holding of dual British citizenship. One of the appellants (‘E3’) was born in the UK to parents who were Bangladeshi by birth, and the other (‘N3’) was born in Bangladesh to parents that had naturalised as British. This exploration of the law was a development of the position originally set out in the 2017 SIAC case G3 v SSHD (SC/140/2017). 

Both sides adduced expert evidence. In addition, the government had obtained from the Bangladeshi authorities a Note Verbale addressing a series of questions about the most recent Bangladeshi legal provisions dealing with nationality.

It was SIAC’s treatment of this evidence, and its interpretation of whom the burden of proof lay with, that gave rise to the present appeal.

The judgment does not therefore give an authoritative statement on the nationality of British citizens of Bangladeshi background. It is about where the burden of proof lies in establishing whether or not a person would be made stateless by a decision of the Secretary of State to deprive them of their British citizenship. 

At paragraph 64, Lord Justice Flaux endorses the position previously adopted by SIAC in R3 v SSHD (SC/150/2018):

… the burden of proof, once the Secretary of State has shown, as she has in this case, that she was satisfied that the Appellant would not be made stateless by the decision, falls on the Appellant who must show that in fact he has been rendered stateless.

In endorsing this position on the burden of proof, the Court of Appeal declined to substitute its own findings of fact in relation to the Note Verbale and instead remitted the case to SIAC for the issue of statelessness to be decided again, this time applying the correct approach to the burden of proof. The result may yet impact on Ms Begum’s case, in which SIAC’s verdict is awaited.