The Secretary of State for the Home Department v E3 & Anor

Under section 40(4) of the British Nationality Act 1981, the Secretary of State must first show that she was satisfied that deprivation would not cause statelessness. If the affected person challenges that conclusion, that person bears the legal burden of proving actual statelessness.

The legal burden does not shift according to which party adduces a particular item of foreign-law or state-practice evidence. An evidential burden may require a party relying on evidence to produce it, but it does not reverse the legal burden. An official Note Verbale from the responsible foreign ministry, addressing the application of nationality law, must be assessed as such and not dismissed as merely extra-official evidence of practice.

The Secretary of State made orders under section 40(2) of the British Nationality Act 1981 depriving E3 and N3 of British citizenship on national-security grounds. Each contended that the order would leave him stateless because he no longer held Bangladeshi nationality.

The Special Immigration Appeals Commission allowed their preliminary appeals in cases SC/138/2017 and SC/146/2017. It held that, although the appellants generally bore the burden of proving statelessness, the Secretary of State bore it on the specific question whether a Bangladeshi Note Verbale established a settled practice preserving their nationality. The Secretary of State appealed.

The central issue was whether SIAC had lawfully allocated the burden of proof and assessed the legal significance of the Note Verbale.

1. Appeal allowed and remitted. SIAC erred in law in treating the burden of proof on statelessness as shifting to the Secretary of State in relation to the Note Verbale. The issue was remitted to a differently constituted SIAC.

2. Section 40(4) of the British Nationality Act 1981 creates two stages. First, the Secretary of State must demonstrate that she was satisfied that the deprivation order would not render the person stateless. Secondly, if the person asserts that the order will nevertheless cause statelessness, that person must prove it on the balance of probabilities. This allocation recognises the statutory safeguard while treating statelessness as an exception to the general deprivation power.

3. SIAC’s general recognition that E3 and N3 bore the burden did not cure its error. It wrongly imposed a separate legal burden on the Secretary of State to prove that the Note Verbale established Bangladeshi practice. The source of a particular item of evidence may create an evidential burden to adduce it, but it does not alter the legal burden on the ultimate issue.

4. SIAC also mischaracterised the Note Verbale. It was a formal official response from the responsible Bangladeshi ministry to questions concerning the application and interpretation of Bangladeshi law. SIAC had to give proper consideration to its status and effect, rather than treating it merely as an extra-official opinion or evidence of practice.

5. The court did not determine whether, for article 1(1) of the 1954 Convention, state practice can be relevant only where it has the character of law and is benevolent towards the individual. That issue was left to SIAC after full argument. SIAC may also receive the respondents’ evidence concerning an alleged inconsistency in the Bangladeshi Government’s approach.

• Court of Appeal (Civil Division). Allowed the Secretary of State’s appeal and remitted the statelessness issue to a differently constituted SIAC: [2019] EWCA Civ 2020.
• Special Immigration Appeals Commission. Allowed E3’s and N3’s preliminary statutory appeals on statelessness and overturned the deprivation orders. That decision was set aside and remitted: SC/138/2017 and SC/146/2017.