The Queen (on the application of D4) (notice of deprivation of citizenship) v Secretary of State for the Home Department

This appeal concerned whether regulation 10(4) of the British Nationality (General) Regulations 2003 (as amended in 2018) was ultra vires the powers conferred by section 41(1) (and in particular section 41(1)(e)) of the British Nationality Act 1981 and inconsistent with the written notice requirement in section 40(5). The majority concluded that regulation 10(4), which deems notice to have been given where the Secretary of State places the notice on the person’s Home Office file (service "to file"), was beyond the enabling power because it effectively dispenses with the statutory requirement to give written notice and cannot be read as carrying the purposes of the Act into effect. The court analysed the statutory text, the purpose of section 40(5) (the safeguard of written notice of deprivation and appeal rights), and comparable deeming provisions (notably regulation 10(5) and 10(6)), and held that those lesser deeming or presumption mechanisms fall within the delegated power but regulation 10(4) does not. There was a recorded dissent by the Master of the Rolls, who would have allowed the appeal on the basis that the enabling power is broad enough to permit the deeming provision in the circumstances of persons who are uncontactable.

This judicial-review appeal arose after Mr Justice Chamberlain in the Administrative Court declared regulation 10(4) of the British Nationality (General) Regulations 2003 (as amended) ultra vires and consequentially declared null and void an order depriving D4 of British citizenship made on 27 December 2019. D4, born in the United Kingdom and detained abroad, had been deprived of citizenship and the decision was placed on her Home Office file in reliance on officials' note that her whereabouts were unknown. The deprivation order was certified as national-security sensitive so her appeal lay to SIAC; SIAC concluded in a related matter that it lacked jurisdiction to determine the lawfulness of service to file.

Nature of the application: judicial review seeking (i) a declaration that regulation 10(4) is ultra vires and (ii) consequential relief in respect of the deprivation order. The High Court (Chamberlain J) held regulation 10(4) ultra vires and declared the deprivation order a nullity. The Home Secretary obtained permission to appeal to the Court of Appeal limited to the single ground that the judge erred in law on the vires point; a second ground about relief was refused permission.

Issues before the Court of Appeal: (i) whether the enabling power in section 41(1) and in particular section 41(1)(e) authorised a regulation (regulation 10(4)) that deems written notice to have been given when the notice is merely placed on the Home Office file and no step has been taken to communicate the notice to the person; (ii) the proper approach to statutory construction of deeming provisions and the limits of delegated power in the context of deprivation of citizenship under section 40, including the role of the safeguard in section 40(5).

The majority (Whipple LJ and Baker LJ) allowed the judge’s construction: section 40(5) requires that written notice be given and that requirement is a fixed parameter of the statutory scheme; regulation 10(4) does not provide for the giving of written notice but instead dispenses with giving notice altogether in certain circumstances and therefore goes beyond the delegated power in section 41(1)(e). The majority distinguished other deeming or presumption provisions (for example regulation 10(5) and 10(6)) as permissible because they either create rebuttable presumptions or involve steps likely to facilitate communication (service on a representative). The Master of the Rolls dissented, accepting a broader construction of the enabling power and finding regulation 10(4) permissible as a practical means to carry the Act’s purposes into effect where persons are uncontactable. The court therefore dismissed the Home Secretary’s appeal by majority.

Procedural path: Administrative Court (Chamberlain J) [2021] EWHC 2179 (Admin) -> Court of Appeal [2022] EWCA Civ 33; permission to appeal granted on the vires issue (permission given by Nicola Davies LJ on papers); related SIAC decision C3, C4 and C7 (SC/167/2020) dated 18 March 2021 noted that SIAC lacked jurisdiction to rule on service to file.

Appeal dismissed. By a 2-1 majority the Court of Appeal held that regulation 10(4) of the British Nationality (General) Regulations 2003 (as amended) was ultra vires of the powers conferred by section 41(1) (and in particular section 41(1)(e)) because it effectively dispenses with the statutory requirement in section 40(5) that the Secretary of State give written notice before making a deprivation order; only Parliament may authorise such an alteration to the statutory safeguard. The Master of the Rolls dissented, preferring a broader construction of the delegated power permitting the deeming provision in the circumstances of uncontactable persons.

Judicial review commenced in the High Court; Chamberlain J held regulation 10(4) ultra vires and declared the deprivation order a nullity ([2021] EWHC 2179 (Admin)). The Home Secretary sought and obtained permission to appeal to the Court of Appeal on the vires point (permission given on the papers by Nicola Davies LJ); stay of the High Court order was extended pending this appeal. A related SIAC determination (C3, C4 and C7 v Secretary of State for the Home Department, SC/167/2020, 18 March 2021) held SIAC lacked jurisdiction to rule on the lawfulness of service to file.