Hicks, R (on the application of) v Secretary of State for the Home Department

Where the statutory conditions for registration as a British citizen are satisfied, registration is an entitlement. The Secretary of State cannot imply a public-policy exception where Parliament has imposed no good-character or equivalent condition. Conduct before acquisition of citizenship cannot ordinarily support deprivation under British Nationality Act 1981, section 40(3)(a), which concerns conduct by a person owing the relevant allegiance. A deprivation notice must state reasons, but security considerations may limit the particulars disclosed. The Secretary of State may distinguish between applicants where the distinction is rationally connected to the exercise of the statutory discretion.

The claimant, an Australian citizen detained at Guantanamo Bay, applied for registration as a British citizen under section 4C of the British Nationality Act 1981, relying on his maternal British connection. The Secretary of State accepted that the statutory conditions were met but proposed either refusing registration on public-policy grounds or registering the claimant and immediately depriving him of citizenship because of alleged terrorist conduct before registration.

The central issues were whether the statutory scheme permitted refusal or parallel deprivation, whether the claimant had been treated unfairly or inconsistently, and what procedural obligations arose if deprivation were pursued.

1. Claim allowed. The claimant satisfied the conditions in section 4C of the British Nationality Act 1981. The provision conferred an entitlement to registration, and the Secretary of State had no power to refuse registration on public-policy grounds where Parliament had deliberately imposed no good-character requirement for this form of registration.
2. Section 40(3)(a) of the 1981 Act was construed as applying to disloyal or disaffected conduct occurring when the person owed the relevant allegiance as a British citizen. The alleged conduct occurred before the claimant acquired citizenship. It therefore could not support deprivation under that provision or under the substituted section 40.
3. The public-policy principle in R v Secretary of State for the Home Department ex p Puttick [1981] Q.B. 767 was confined to cases where criminal conduct secured the qualification for registration. It did not justify closing an omission in the statutory scheme where the claimant had done nothing wrong to establish his entitlement.
4. If deprivation had been legally available, the Secretary of State could have registered the claimant and made a deprivation order in parallel. The claimant would have been entitled to written notice of the reasons and a reasonable opportunity to respond. The reasons supplied were extremely sparse but sufficient, given the security considerations and the role of a Special Advocate in any appeal.
5. The different treatment of British citizens returned from Guantanamo Bay was rationally justified by their closer United Kingdom connections and the claimant’s different circumstances. The fairness, discrimination and consistency grounds therefore failed.
6. The claimant remained subject to the statutory oath and pledge requirements. The Secretary of State had to arrange the mechanics of registration, or consider dispensing with or postponing those requirements under section 42(6)(b). A declaration was made that the Secretary of State had no power to withhold or deprive the claimant of British citizenship. The claim succeeded with costs and detailed assessment if not agreed. Leave to appeal was granted, but no stay was imposed.

This was a first-instance judicial review in the Administrative Court. Permission was granted and the substantive claim was heard immediately. The court granted leave to appeal on the statutory construction issue, without imposing a stay.