The UK government’s attempt to strip a British-Pakistani woman of her citizenship without telling her was unlawful, a split Court of Appeal has confirmed. Lord Justice Baker and Lady Justice Whipple held that the regulation allowing notice of citizenship deprivation to be placed “on file” is ultra vires the British Nationality Act 1981, which requires the Home Secretary to “give the person written notice”. The Master of the Rolls, Sir Geoffrey Vos, dissented.

The case is R (D4) (Notice of Deprivation of Citizenship) v Secretary of State for the Home Department [2022] EWCA Civ 33. The woman known only as “D4” was born in the UK in 1967 and has always been a British as well as a Pakistani citizen. She is “assessed to have travelled to Syria to align with the proscribed terrorist organisation Islamic State” and has been detained at Camp Roj for the last three years.

On 27 December 2019, the government made an order under section 40(2) of the 1981 Act depriving D4 of her British citizenship. (The formal decision to do so was made, incidentally, by the Chancellor of the Exchequer, Sajid Javid — the Home Secretary presumably being on holiday.) Officials made a note in the file saying “we do not know [D4’s] current precise whereabouts so as to somehow effect service” of the deprivation decision.

In September 2020, D4’s solicitors wrote to the government asking for help getting her out of the camp. The Home Office replied saying she was no longer a British citizen and not the British government’s problem. This was “the first time that the deprivation of citizenship had been communicated to D4 or her advisors”.

Section 40(5) of the British Nationality Act 1981 says:

Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a) that the Secretary of State has decided to make an order,

(b) the reasons for the order, and

(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).

Whipple LJ commented:

It can be inferred from the legislation that the Parliamentarians who debated and passed this bill into law, even as long ago as 1981 when the world looked very different, deliberately structured the process for depriving someone of their citizenship to include minimum safeguards for the individual. Section 40(5) thus represents a balance between the public interest in permitting the Home Secretary to deprive a person of their citizenship, and the individual’s rights to know that has occurred, why, and what avenues are open to them to challenge the decision.

Section 41(1)(e) of the same Act says that “the Secretary of State may by regulations make provision generally for carrying into effect the purposes of this Act, and in particular provision… for the giving of any notice required or authorised to be given to any person under this Act”.

The relevant regulations are the British Nationality (General) Regulations 2003 (SI 2003 No. 548). Regulation 10(4), as amended in 2018, provides that where the person’s whereabouts are unknown and their last known address is no longer in use,

notice shall be deemed to have been given when the Secretary of State enters a record of the above circumstances and places the [deprivation] notice or a copy of it on the person’s file.

Whipple LJ noted that “under that process there is no possibility that the notice will come to the person’s attention. The effect of regulation 10(4) is not in any real sense to give notice at all”.

She went on to hold:

In my judgment, section 41(1)(e) does not permit that to be done…

As a matter of language, regulation 10(4) is at odds with section 40(5); it does not provide for the giving of notice, but rather for notice to be dispensed with. Further, to dispense with notice is contrary to the purpose of section 40(5), which provision expressly requires notice to be given before an order is made, as a protection to the individual and as part of the balance between public and private interests. Yet further, to dispense with service is inconsistent with the constitutional principle recognised in Anufrijeva; as the House of Lords recognised in that case, it would be possible for Parliament to legislate contrary to that principle, either expressly or by necessary implication in the statute, but there is nothing in section 40(5) to suggest that notice should be given “so far as is possible” or similar, and there is nothing in the language of section 41(1) or section 41(1)(e) to support the extreme effect of this deeming provision.

Baker LJ agreed, adding:

There may be good policy reasons for empowering the Secretary of State to deprive a person of citizenship without giving notice, but such a step is not lawful under this legislation. If the government wishes to empower the Secretary of State in that way, it must persuade Parliament to amend the primary legislation. That is what it is currently seeking to do under the Nationality and Borders Bill.

Vos MR disagreed, for reasons that can be perused at paragraphs 67 onward. The dissent means that the case must stand a good chance of being taken up by the Supreme Court.

But the issue will become academic by then. As Baker LJ noted, clause 9 of the Borders Bill (expected to pass in the next couple of months) would amend the 1981 Act to dispense with the notice requirement when it is “in the public interest”. That means the Home Office would no longer have to worry about regulations being ruled ultra vires.

Clause 9 would apply retrospectively:

A failure to comply with the duty under section 40(5) of the 1981 Act in respect of a pre-commencement deprivation order does not affect, and is to be treated as never having affected, the validity of the order.

In other words, from the day the Borders Bill passes into law, the order depriving D4 of her citizenship will kick in as though it had been legal all along.

Coming up tomorrow on the Free Movement podcast: Alasdair MacKenzie of Doughty Street Chambers talks deprivation of citizenship.