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

A power to make regulations for the giving of notice does not authorise secondary legislation which, in substance, dispenses with a mandatory statutory requirement to give written notice. Although notice need not invariably involve actual receipt, and legislation may validly deem notice to have been given in an appropriate context, a provision which takes no step towards communicating the notice to the affected person is not a means of giving notice.

Accordingly, the power in section 41(1)(e) of the British Nationality Act 1981 could not support a regulation deeming notice of deprivation of citizenship to have been given merely by recording circumstances and placing the notice on a Home Office file. Such a provision contradicts the safeguard in section 40(5) and is ultra vires.

D4, a British and Pakistani national detained in north-eastern Syria, was deprived of British citizenship on public-good grounds on 27 December 2019. The Secretary of State relied on regulation 10(4) of the British Nationality (General) Regulations 2003 to deem the statutory notice given by placing it on D4’s Home Office file. D4 and her advisers were not told of the decision until October 2020.

D4 appealed to SIAC, which had held in another case that it lacked jurisdiction to decide the lawfulness of service to file. She therefore sought judicial review. Chamberlain J granted relief and held regulation 10(4) ultra vires: [2021] EWHC 2179 (Admin).

The Secretary of State appealed on the sole permitted ground that the regulation was within the powers conferred by sections 40 and 41 of the British Nationality Act 1981. The central issue was whether a regulation deeming notice given without any step to communicate it could lawfully implement section 40(5).

1. Appeal dismissed by a 2–1 majority. Whipple LJ, with whom Baker LJ agreed, held that regulation 10(4) of the British Nationality (General) Regulations 2003 was ultra vires. The Master of the Rolls dissented.

2. The task was to construe the statute and the delegated legislation. Context, legislative history and statutory purpose may assist where language is capable of more than one meaning, but they cannot permit a court to depart from the limits of the words Parliament used. It was for Parliament, rather than the court or the Secretary of State acting under delegated powers, to remove the notice safeguard if that was thought necessary.

3. The majority accepted that notice does not invariably require actual receipt. Receipt gives a person an opportunity to acquaint themselves with the decision; it does not require proof that they read it. Statutory or contractual provisions may also deem notice given. The legality and scope of any such fiction, however, depend on the particular statutory context.

4. Section 40(5) of the British Nationality Act 1981 required written notice before a deprivation order was made. It informed the person of the decision, its reasons and the right of appeal. It was an integral individual safeguard within the statutory balance between the public interest in deprivation and the person’s rights.

5. Section 41(1)(e) was broad enough to regulate the giving of notice, including some forms of deemed notice. Regulation 10(5), for example, created a rebuttable presumption after steps capable of communicating notice had been taken. Regulation 10(6) at least involved a step directed towards communication through an apparent representative. Regulation 10(4), by contrast, involved no step at all towards communication and no possibility that the notice would come to the person’s attention.

6. Regulation 10(4) therefore did not carry section 40(5) into effect. In practical terms it dispensed with notice, contrary both to the statutory requirement and to the constitutional principle in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36 that an adverse administrative decision affecting rights must ordinarily be communicated unless Parliament provides otherwise. The High Court’s conclusion stood.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed by majority. Regulation 10(4) was held ultra vires: [2022] EWCA Civ 33.

• High Court, Administrative Court: Chamberlain J granted judicial review, declared regulation 10(4) and the purported deprivation order nullities, and declared that D4 remained a British citizen: [2021] EWHC 2179 (Admin).