E3, N3 and ZA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Withdrawal of a deprivation decision under the British Nationality Act 1981 ordinarily operates prospectively. It does not retrospectively erase the decision or restore citizenship for the period during which the deprivation order had legal effect.

A successful appeal to SIAC on statelessness ordinarily establishes that the Secretary of State reached the wrong factual conclusion. It does not, without more, invalidate the statutory precondition considered when the order was made. The Secretary of State must respond appropriately, normally by withdrawing the order, but retrospective withdrawal is required only in exceptional circumstances such as perversity, unfairness or bad faith.

E3 and N3 had been deprived of British citizenship under section 40 of the British Nationality Act 1981 on the basis that deprivation would not make them stateless. SIAC initially found that they had lost Bangladeshi citizenship, but the Court of Appeal allowed the Secretary of State’s appeal and remitted the issue.

Following SIAC’s later decision in C3, C4 and C7 v SSHD, the Secretary of State withdrew the deprivation orders and informed E3 and N3 that their citizenship had been reinstated. The central issue was whether withdrawal operated prospectively or retrospectively. ZA’s position depended on whether E3 had remained British when she was born.

1. The claims were dismissed. The withdrawal of the deprivation orders operated prospectively only. The statement that citizenship had been reinstated described the practical consequence and did not establish that the original orders had been void from the outset (paras [67]-[70], [83]-[85], [103]).

2. Under section 40(4) of the British Nationality Act 1981, the Secretary of State’s reasonable satisfaction that deprivation would not cause statelessness was a condition precedent to exercising the power. The statutory appeal to SIAC was appellate rather than supervisory, and was against the decision to make the order, not the order itself. A successful appeal at the factual statelessness stage therefore showed that the Secretary of State had reached the wrong conclusion, but did not itself remove the condition precedent or render the order retrospectively unlawful (paras [71]-[82]).

3. Once SIAC allowed an appeal and the Secretary of State decided not to challenge it, she could no longer remain satisfied that the order would not cause statelessness. She was required to respond appropriately, ordinarily by withdrawing the order. That duty did not entail retrospective withdrawal (paras [86]-[90]).

4. Article 8 of the Statelessness Convention did not require notional backdating of revocation, nor did it prevent exclusion while the issue was being litigated (para [83]). The legal consequences of any unlawfulness depend on the statutory scheme. The court’s alternative view was that retrospective withdrawal should be reserved for cases involving perversity, unfairness or bad faith (paras [94]-[102]).

The judgment records earlier proceedings in related litigation. The Court of Appeal allowed the Secretary of State’s appeal against SIAC’s determination on 21 November 2019, remitting the matter to SIAC. The present judicial review claims were then brought in the High Court to determine the legal effect of the subsequent withdrawal of the deprivation orders.