In a case concerning statutory interpretation of the BNA 1981, the Court of Appeal (“CA”) held that the withdrawal of a deprivation order by the Secretary of State for the Home Department (“SSHD”) did not take retrospective effect.
Therefore, E3 and N3 had been deprived of their British citizenship from the date of the deprivation order until the date of its withdrawal. As a consequence, ZA, E3’s daughter born in Bangladesh during the time when E3 had been deprived of his British citizenship, could not access British citizenship by descent. This judgment has since been reversed on some issues in the UK Supreme Court decision N3 v Secretary of State for the Home Department; ZA v Secretary of State for the Home Department [2025] UKSC 6.
1961 Convention on the Reduction of Statelessness – article 8
British Nationality Act 1981 (“BNA 1981”) – sections 1, 2, 4, 11, 40, 40A
Special Immigration Appeals Commission Act 1997 – section 2B
European Convention on Nationality 1997
Nationality, Immigration and Asylum Act 2002 – section 4, 40, 82, 87
Special Immigration Appeals (Procedure) Rules 2003 – rule 11A
Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 – section 26, 47, Schedule 2, Schedule 4
Immigration, Asylum and Nationality Act 2006 – section 56
Factual Background
E3 was born in the United Kingdom in 1981 and had British citizenship at birth, and Bangladeshi citizenship by descent. In June 2017, the SSHD made an order (under section 40(2) of the BNA 1981) depriving him of his British citizenship on the basis that he was an Islamist extremist who posed a threat to national security. The second claimant (“N3”) was born in Bangladesh in 1983 and so had Bangladeshi citizenship at birth; he also had British citizenship by descent. The SSHD made an order to deprive N3 of his British citizenship around November 2017, on the basis that he aligned himself with Al-Qaeda.
Both E3 and N3 appealed against the deprivation decisions on a number of grounds including that, at the date of the decisions, they no longer held Bangladeshi citizenship and were rendered stateless. The appeals were joined before the Special Immigration Appeals Commission (“SIAC”), which held, in Novemeber 2018, that E3 and N3 had ceased to be Bangladeshi citizens at the age of 21 by virtue of Bangladeshi law.
The SSHD appealed the SIAC’s decision. Prior to the appeal decision, E3’s daughter, ZA, was born in Bangladesh in June 2019, and, due to the deprivation order against E3, was unable to access British citizenship by descent under section 2(1)(a) of the BNA 1981.
The Court of Appeal (“CA”) allowed the SSHD’s appeal in November 2019 and referred the matter back to the SIAC. E3 and N3 applied for permission to appeal to the Supreme Court.
In the meantime, the Supreme Court ruled on this point of law in an unrelated case and held that similar orders for deprivation of British citizenship would render such individuals stateless because under Bangladeshi law, they ceased to be Bangladeshi citizens upon turning 21. Following the Supreme Court’s decision, the SSHD wrote to E3 and N3 informing them that the deprivation orders were withdrawn.
E3 and N3 responded stating that the decisions were a nullity in the first place because the Secretary of State had no power to make the original orders (which would have allowed ZA to access British citizenship by descent). This was rejected by the SSHD who argued that at the time the SSHD had been satisfied that the orders would not render E3 or N3 stateless and thus the decisions were lawful. The Supreme Court’s analysis of the situation had not been previously available but had since led to the (??)
The appellants filed a judicial review claim seeking a declaration that the withdrawal had retrospective effect. The judge dismissed their claim and an appeal was filed with the CA.
There were four grounds of appeal:
- The judge should have held that a withdrawn deprivation had no effect due to the scheme of the BNA 1981.
- The judge should have held that the withdrawal of the deprivation decisions meant that the SSHD had accepted that the decisions were wrong and had unlawfully rendered E3 and N3 stateless and therefore, the deprivation decisions should be treated as void ab initio.
- The judge should have held that the deprivation order was unlawful as E3 and N3 were rendered stateless.
- The judge should have found that E3 regained his British citizenship on the date of the SIAC’s decision, which allowed E3’s appeal. This would have allowed ZA to access British citizenship.
The appellants had two main arguments.
The first was that the SIAC finding that E3 and N3 were rendered stateless was to decide whether the deprivation was lawful. As there was no express statutory power to restore citizenship, the SIAC judgment must have had the effect of deeming the deprivation order unlawful and the person always retained their citizenship. Further, sections 40 and 40A of the BNA 1981 did not explicitly address the consequences of the SIAC finding that a person was made stateless and the default position had to be that a successful appeal to the SIAC rendered the deprivation order a nullity.
The second argument was that there would be arbitrary consequences if the withdrawal of a deprivation order only had prospective application. In the current case an example of such consequences was that ZA could not access her British citizenship. The appellants further argued that Parliament could not have intended this and it was contradictory to Article 8 of the 1961 Convention on the Reduction of Statelessness (the “Convention”).
The SSHD argued that, if one focused on the statutory language of section 40(4) of the BNA 1981, lawfulness of a deprivation order only required that the SSHD be “satisfied” at the time of making the order that the appellants would not be made stateless.
Additionally, the SSHD argued that the SIAC determination concerned a question of fact, and this position was supported by the legislative history of the BNA 1981. Previously, section 40A(3)(a) of the BNA 1981 allowed the SIAC the discretion to make a direction that the impugned deprivation order had no legal effect, but this had been repealed for being contrary to sections 40 and the rest of section 40A of the BNA 1981.
The SSHD argued that the correct operation of the law was that if the SIAC determined that a deprivation order had render the concerned person stateless, the person’s British citizenship was not automatically reinstated. The SSHD had to take steps to give effect to the SIAC’s decision and if these steps were not taken, the SSHD could be compelled to do so by a judicial review action.
The CA dismissed the appeal.
The judgment went through the legislative scheme and its history. During this exercise, two main points were made.
The first was that the limitation in section 40(4) of the BNA 1981 is expressed by reference to the subjective state of mind of the SSHD. The actual fact, as it may be, that the deprivation order would render the person stateless is not a bar to the SSHD exercising their discretion as the provision only refers to whether the SSHD is satisfied that the order would make a person stateless.
The second point was in respect of the person’s right of appeal to the SIAC and the effect of its decision. In the absence of express statutory provisions, the judgment clarified that a determination by the SIAC that a deprivation order had rendered a person stateless was simply answering a factual question. It did not have the ability to deem the deprivation order a nullity or quash the deprivation order. The CA noted that the effects of an SIAC decision will be different if the appeal is challenging that a deprivation order is conducive to the public good.
In response to the other grounds of appeal, the CA stated:
- The SIAC decision was not given any increased weightage because there was no express statutory provision that dealt with the reversing a deprivation order. The correct approach was that the bar to citizenship was the deprivation order and once the order was withdrawn, citizenship was reinstated.
- The BNA 1981 was made after the Convention and did not intend to give it direct effect. The BNA was clear and unambiguous and could not be challenged for being in contradiction with the Convention. In any case, Article 8 of the Convention did not necessarily mean that a successful SIAC appeal or withdrawal decision rendered a deprivation order a nullity.
The withdrawal of a deprivation order would not take retrospective effect and the statutory scheme did not allow SIAC determinations on statelessness would not automatically reinstate citizenship and could not hold that the impugned order was incapable of producing legal effects.
This led to the “harsh” consequences that E3 and N3 were deprived of their British citizenship for the period from when the order was made till its withdrawal and ZA could not access British citizenship by descent.
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