E3 & Ors. v Secretary of State for the Home Department

Under section 40(4) of the British Nationality Act 1981, the legality of a deprivation order depends on the Secretary of State’s state of mind when the order is made. The question is whether she is satisfied, on the material then available, that the order would make the person stateless. A later finding by the Special Immigration Appeals Commission that the order in fact causes statelessness does not make the original decision or order a nullity. Withdrawal therefore operates prospectively, from the date of withdrawal. A successful appeal does not itself restore citizenship or displace the order. Citizenship is restored when the Secretary of State withdraws the order. A child does not acquire citizenship by descent where, at the date of birth, the parent remains subject to an effective deprivation order.

E3 and N3 had been deprived of British citizenship under section 40(2) of the British Nationality Act 1981 on national security grounds. They appealed to the Special Immigration Appeals Commission, contending that the orders rendered them stateless. After SIAC decisions concerning the effect of Bangladeshi nationality law, the Secretary of State withdrew the orders and stated that their citizenship had been reinstated, but declined to accept that they had remained British citizens throughout.

E3 and ZA, and separately N3, sought judicial review. The High Court dismissed the claims, holding that withdrawal had prospective effect. The appeals concerned whether the orders had been nullities from inception and whether ZA acquired British citizenship at birth through E3.

1. Appeals dismissed. The High Court was correct to hold that withdrawal of the deprivation orders operated prospectively.
2. Section 40(4) of the British Nationality Act 1981 is a limitation on the exercise of the power under section 40(2), expressed by reference to whether the Secretary of State is satisfied that the order would make a person stateless. The relevant state of mind is assessed when the order is made, on the evidence then available. If the Secretary of State is not so satisfied, the limitation does not apply and the order is lawful.
3. On an appeal concerning statelessness, SIAC determines a question of fact on the evidence before it, including expert evidence about foreign law. It does not quash the decision or the deprivation order, and a finding that the order renders a person stateless does not itself establish that the original decision was unlawful or a nullity. The Secretary of State must take further steps, in particular withdrawal of the order, to give effect to the finding.
4. The legislative history, including the former section 40A(3)(a), reinforced that a successful appeal did not automatically render the order void from inception. That provision gave SIAC a discretion to direct that an order be treated as having had no effect.
5. The court did not need to decide whether section 40(4) implemented article 8 of the Convention on the Reduction of Statelessness. The statutory language was clear. In any event, the court’s provisional view was that article 8 did not require a withdrawal to operate retrospectively under domestic law.
6. A deprivation order continued to have legal effect until withdrawn. Accordingly, when ZA was born, E3 was not a British citizen otherwise than by descent for the purposes of section 2(1)(a) of the British Nationality Act 1981, and ZA did not acquire British citizenship at birth.

The consequences for ZA might be harsh, but they could not justify departing from the proper statutory interpretation.

• Court of Appeal (Civil Division): [2023] EWCA Civ 26 dismissed the appeals and upheld the High Court’s conclusion that withdrawal of the deprivation orders had prospective effect.
• High Court of Justice, Administrative Court: Jay J dismissed the judicial review claims, holding that withdrawal did not retrospectively restore citizenship. The claim numbers were CO/3463/2021, CO/3649/2021 and CO/3806/2021.