Secretary of State for the Home Department v Hicks

Registration as a British citizen and deprivation of citizenship are separate statutory powers. Under section 40(3)(a) of the British Nationality Act 1981, as originally enacted, disloyalty and disaffection presuppose an existing allegiance or other relevant relationship with the Crown or United Kingdom. Pre-citizenship conduct may be relevant where that relationship already exists, but conduct by an outsider owing no allegiance to the United Kingdom cannot qualify. Where present disaffection is relied on, fairness requires a fresh assessment and an opportunity to make representations. Brief reasons suffice if they fairly identify the case. Different treatment of comparable citizens is lawful where relevant links and alternative protection differ.

The respondent, an Australian citizen whose mother was born in the United Kingdom, applied for registration as a British citizen under section 4C of the British Nationality Act 1981, introduced to remedy historic discrimination in citizenship by descent.

The Secretary of State proposed to register him and simultaneously deprive him of citizenship under section 40(3)(a), relying on alleged activities in Pakistan and Afghanistan before registration. Collins J quashed the Secretary of State’s decision and declared that he had no power to withhold or deprive the respondent of citizenship. The appeal concerned the meaning and temporal scope of disloyalty and disaffection, the possibility of parallel registration and deprivation, the adequacy of reasons and the rationality of distinguishing the respondent from other British citizens detained at Guantanamo Bay.

1. Disposition. Pill LJ delivered the leading judgment. Rix LJ agreed on the decisive basis, and Hooper LJ agreed with Pill LJ’s reasons. The appeal was unanimously dismissed.
2. Meaning of disaffection. The words ‘disloyal’ and ‘disaffected’ in section 40(3)(a) of the British Nationality Act 1981 require an attitude towards an entity to which allegiance is owed, or with which the person belongs or has a relevant relationship. ‘Disaffected’ connotes estrangement, hostility or disloyalty within such a relationship. It does not describe an outsider’s hostility towards a foreign state. The court adopted the approach in Burns v Ransley [1949] 79 CLR 101 and treated R v Arrowsmith [1975] QB 678 as illustrating the need for a relationship with the state organisation.
3. Pre-citizenship conduct. Conduct before citizenship may be relevant where the person already owed allegiance to Her Majesty or had assumed a relationship involving protection and fidelity. Joyce v DPP [1946] AC 347 was distinguished because the passport-holder in that case maintained and asserted such a relationship. It did not create allegiance for an Australian outsider who owed no allegiance to the United Kingdom. The respondent’s Afghan conduct therefore could not satisfy section 40(3)(a).
4. Temporal and procedural matters. Pill LJ considered that the wording linking the act or speech with the state of being disaffected required a fresh assessment if present disaffection at registration was relied upon, together with an opportunity to make representations. The proposed procedure was unlawful on that basis. Rix LJ left the wider question whether pre-registration conduct could evidence later disaffection unresolved. Pill LJ also indicated that parallel action might exceptionally be lawful under another ground, such as pre-registration trading with the enemy, if notice and representations preceded registration.
5. Other grounds. The reasons given in the Secretary of State’s letter, although brief, fairly indicated the case and were supplemented by further information. The statutory notice requirement was therefore satisfied and the respondent was not prejudiced. The Secretary of State was also entitled to distinguish the respondent from other British citizens by considering United Kingdom links, Australian protection and whether citizenship existed when the others were detained. The differential treatment was not irrational.

• Court of Appeal (Civil Division): Appeal dismissed. [2006] EWCA Civ 400.
• Administrative Court (Queen’s Bench Division): Collins J quashed the Secretary of State’s decision of 12 October 2005 and declared that he had no power to withhold or deprive the respondent of British citizenship.