The case of The Queeen (on the application of D4) (Notice of Deprivation of Citizenship) – and – Secretary of State for the Home Department [2022] EWCA Civ 33 concerned an appeal by the Home Secretary against the decision of the High court judge which ruled that to deprive a person of British citizenship by placing a notice of the decision to do so on their file is ultra vires, i.e. it goes beyond what was permitted by the statute.
The Claimant, a woman known as D4, was born in 1967 in the United Kingdom and had British nationality from birth. She also has Pakistani nationality. She was detained at Camp Roj in north-eastern Syria since January 2019. On 27 December 2019, the decision to deprive her of her British citizenship was made on the grounds that the decision was conducive to the public good. That decision was placed on D4’s Home Office file. On the same day, an order depriving D4 of her citizenship was made.
On 28 September 2020, D4’s solicitors asked the Foreign and Commonwealth Office for assistance in repatriating her. On 14 October 2020, the Home Office wrote to the solicitors, telling them that she had been deprived of her citizenship on 27 December 2019. This was the first time that the deprivation of citizenship had been communicated to D4 or her advisors. D4 appealed.
The appeal raised the issue of whether Regulation 10(4) of the British Nationality (General) Regulations 2003 (the “2003 Regulations”) is ultra vires. Regulation 10(4) permits the Home Secretary to serve notice of a decision to deprive a person of their citizenship under section 40 of the British Nationality Act 1981 (the “1981 Act”) by placing a copy of that notice on the person’s file at the Home Office.
The Court considered the purpose of Section 40 of the 1981 Act and that it permits deprivation of citizenship in various circumstances, including where it is conducive to the public good. Section 40(5) requires the Secretary of State to give notice to the person of the decision to make the order of deprivation, the reasons for the order and the remedies available to the person, such as right of appeal. The reason for and purpose of giving notice is that the person needs to know that a decision has been made; the person is entitled to know the reasons for that decision; and the person is put on notice of their appeal rights.
It found that Section 40(5) thus represents a balance between the public interest in permitting the Home Secretary to deprive a person of their citizenship and the individual’s rights to know that has occurred, why, and what avenues are open to them to challenge the decision. The requirement to give notice is there for good reason. The removal of a person’s citizenship is an interference with a person’s fundamental rights. The notice requirement is a safeguard to ensure that a person knows of the decision and of their right of appeal against it. It is there because it is fair.
Regulation 10 only permits notice to be served to file where there is no other practicable means of giving notice; in any event, as a matter of public law, the Home Secretary would be required to give notice as soon as that person’s whereabouts became known (as in fact occurred in this case once D4’s representatives made themselves known to the Secretary of State).
The Court ruled that Regulation 10(4) is in effect a regulation permitting service to be dispensed with altogether, and it is ultra vires.
However, this will change when Nationality and Borders Bill becomes law as clause 9 of the Bill gives the Secretary of State the power to deprive a person of citizenship without giving them notice that this has been done.