N3 v Secretary of State for the Home Department

Under section 40(4) of the British Nationality Act 1981, statelessness is not a precedent fact governing the power to deprive a person of citizenship. The power depends on the Secretary of State forming a lawful subjective opinion.

If an appellate body subsequently finds that deprivation would cause statelessness and allows the appeal, the person is treated as having remained a British citizen throughout. That retrospective effect determines underlying citizenship and derivative rights. It does not invalidate immigration enforcement action lawfully taken before the appeal was allowed. The appellate determination is binding without further administrative action by the Secretary of State.

The Secretary of State made orders depriving E3 and N3 of British citizenship on national security grounds. They maintained that the orders rendered them stateless because they had ceased to be Bangladeshi citizens. Following a favourable ruling in separate SIAC proceedings, the Secretary of State withdrew their orders but maintained that they had not been British citizens while the orders were in force.

ZA, E3’s daughter, was born during that period. Her citizenship depended on whether E3 remained a British citizen at her birth. Judicial review claims by E3, ZA and N3 were dismissed by the High Court, [2022] EWHC 1133 (Admin), and the Court of Appeal, [2023] EWCA Civ 26.

The Supreme Court considered whether statelessness was a precedent fact and what temporal effect a successful statutory appeal had upon the deprivation order.

1. Disposition. ZA’s appeal was allowed and a declaration was made that she was a British citizen. N3’s appeal was allowed in part, subject to the preservation of the validity of relevant immigration enforcement action. Lord Sales and Lord Stephens gave the unanimous judgment, with which Lord Reed, Lord Hodge and Lord Lloyd-Jones agreed.

2. Section 40(4), read with section 40(5), of the British Nationality Act 1981 makes the Secretary of State’s lawful subjective satisfaction the condition governing the deprivation power. The absence of statelessness is not an objective precedent fact. The Secretary of State must comply with ordinary public law standards, including the duty to take reasonable steps to obtain relevant information. A subsequently established factual error about statelessness does not itself make the original order unlawful: paras 71–83.

3. An appeal to the First-tier Tribunal or SIAC is a merits appeal on the statutory questions. The appellate body determines for itself, on the evidence before it, whether the deprivation ground exists and whether the order would cause statelessness. It does not decide whether the original decision was unlawful on judicial review grounds: paras 34–40.

4. The consequences of a successful appeal require a nuanced construction of the statutory scheme. Parliament intended to protect the legality of immigration enforcement undertaken while a deprivation order was effective pending appeal. It did not intend the order to extinguish the person’s underlying citizenship for every purpose or to permit statelessness contrary to the Statelessness Convention: paras 84–90.

5. Once SIAC or the tribunal determines that the order would render the person stateless and allows the appeal, the order is treated as having had no effect upon underlying citizenship from its commencement. The person is regarded as having remained British throughout. That retrospective effect does not invalidate immigration enforcement action taken before the appeal was allowed: para 90.

6. The appellate determination itself authoritatively resolves citizenship status. No withdrawal or other administrative implementation by the Secretary of State is legally required, although formal withdrawal is good practice: paras 92–93. E3 was therefore a British citizen when ZA was born, and ZA acquired British citizenship under section 2(1)(a) of the British Nationality Act 1981: para 91.

1. United Kingdom Supreme Court: ZA’s appeal was allowed and N3’s appeal was allowed in part: [2025] UKSC 6.
2. Court of Appeal: The appeals were dismissed. The court held that the withdrawal of the deprivation orders operated prospectively from 20 April 2021: [2023] EWCA Civ 26; [2023] KB 149.
3. High Court, Administrative Court: Jay J dismissed the judicial review claims, holding that withdrawal operated prospectively: [2022] EWHC 1133 (Admin); [2022] 1 WLR 4632.
4. Earlier SIAC proceedings: SIAC initially allowed E3’s and N3’s appeals on statelessness. After remittal and the Secretary of State’s withdrawal of the deprivation decisions, the SIAC proceedings ended under rule 11A of the Special Immigration Appeals Commission (Procedure) Rules 2003.