This blog is no stranger to the increasing number of challenges against citizenship deprivations. Despite the absence of Home Office data since 2019, 'transparency data', Freedom of Information requests and sporadic national security reports suggest a sharp rise and a corresponding increase in the number of challenges.
The controversial dispensation of the requirement to give notice was intensely debated before the passing of the Nationality and Borders Act 2022 ('NABA'), with its opponents condemning it as a breach of constitutional rights, the common law duty to give notice, and international protections against statelessness. In January 2022, the Court of Appeal dismissed an appeal against the High Court's ruling that the power to deprive individuals of their citizenship without notice was ultra vires. The House of Lords rejected the clause in the same month, amidst a public furore that included a parliamentary petition to remove it signed by over 300,000 people. Nevertheless, 'no notice' deprivations were reinstated by the House of Commons in March 2022 and passed into law. This article examines the changed position on no-notice citizenship deprivation before and after the introduction of NABA.
The pre-NABA position: R (on the application of D4) (Notice of deprivation of citizenship) v Secretary of State for the Home Department  EWCA Civ 33
D4 concerned a dual Pakistani and British citizen who was detained in a camp in Syria and deprived of her citizenship on the grounds that this would be conducive to the public good. For a detailed analysis of the grounds on which the Secretary of State has the power to deprive a person of their British citizenship, please read Alex Papasotiriou's blog here. (https://immigrationbarrister.co.uk/deprivation-of-british-citizenship/) A copy of the notice was placed on her file, which was a common practice by the Home Office at the time, despite the requirement under Section 40(5) of the British Nationality Act 1981 (hereafter "BNA") which states:
"(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997."
The provision the Home Office relied on to permit this was Regulation 3 of the British Nationality (General) (Amendment) Regulations 2018/851 (hereafter the "2018 Amending Regulations"), which amended Regulation 10(4) of the British Nationality (General) Regulations 2003 to read as follows:
(a) the person's whereabouts are not known; and
(i) no address has been provided for correspondence and the Secretary of State does not know of any address which the person has used in the past; or
(ii) the address provided to the Secretary of State is defective, false or no longer in use by the person; and
(c) no representative appears to be acting for the person or the address provided in respect of that representative is defective, false or no longer used by the representative,
the notice shall be deemed to have been given when the Secretary of State enters a record of the above circumstances and places the notice or a copy of it on the person's file."
Counsel for the Secretary of State for the Home Department argued this measure was 'intended to promote national security and protect British citizens' and as a whole 'provides a coherent and reasonable approach to notice, only permitting notice to be served to file where there is no other practicable means of giving notice'. On the other hand, counsel for D4 submitted, 'Regulation 10(4) is the antithesis of notice, it is in effect a regulation permitting service to be dispensed with altogether. The Home Secretary does not have power, by section 41(1)(e) or by any other provision, to make secondary legislation which has the effect of removing the requirement for notice in the primary legislation.'
Handing down judgement, Whipple LJ concluded that the power under Regulation 10(4) was ultra vires. In reaching this conclusion, she identified the purpose of section 40(5) BNA at paragraph 53:
"The reason for and purpose of giving notice is clear from section 40(5) itself: 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."
She went on:
"It can be inferred from the legislation that the Parliamentarians...deliberately structured the process for depriving someone of their citizenship to include minimum safeguards for the individual. 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."
Parliamentarians were well aware that this was subject to limitations, which was why there were more flexible provisions for notice to be given at a 'last known address'. Crucially, the statute did not allow notice to be dispensed with altogether. Agreeing with the submissions of counsel for D4, she explains at paragraph 59:
"As a matter of language, regulation 10(4) is at odds with section 40(5); it does not provide for the giving of notice, but rather for notice to be dispensed with...Yet further, to dispense with service is inconsistent with the constitutional principle recognised in Anufrijeva; as the House of Lords recognised in that case, it would be possible for Parliament to legislate contrary to that principle, either expressly or by necessary implication in the statute, but there is nothing in section 40(5) to suggest that notice should be given "so far as is possible" or similar, and there is nothing in the language of section 41(1) or section 41(1)(e) to support the extreme effect of this deeming provision."
As such, Regulation 10(4) was deemed ultra vires and unable to confer the powers of no notice citizenship deprivations. The Secretary of State has appealed this decision to the Supreme Court, but the appeal has since been withdrawn.
What did Section 10 NABA do?
The new power conferred under Section 10(2) NABA disapplies the requirement to give notice under Section 40(5) as follows:
"(5A) Subsection (5) does not apply if—
- the Secretary of State does not have the information needed to be able to give notice under that subsection,
- the Secretary of State reasonably considers it necessary, in the interests of—
(i) national security,
(ii) he investigation or prosecution of organised or serious crime,
(iii) preventing or reducing a risk to the safety of any person, or
(iv) the relationship between the United Kingdom and another country,
that notice under that subsection should not be given."
The vagueness of this provision opens more questions than it answers. The latest Home Office Guidance on Deprivation of British Citizenship (02 October 2023) does not prove very enlightening. It merely states that caseworkers must consider "all of the evidence available to you and give appropriate weight", give reasons for their decision and inform the person of the deprivation if they later contact the Home Office directly. The effect of this legislation is to empower the Secretary of State to do precisely what the majority of the Court of Appeal in D4 ruled was ultra vires.
The difference this time around is that Parliament has passed legislation rendering it lawful not to give notice when depriving someone of their citizenship in certain circumstances. Whilst regulation 10(4) was previously ultra vires in view of the duty to give notice in section 40(5) BNA, section 40(5A) has changed the position by disapplying section 40(5) under certain conditions, therefore rendering the deprivation of citizenship without notice lawful when those conditions are met.
A common law duty to give notice is unlikely to assist either in view of the coming into force of section 40(5A). As the House of Lords recognised in R (Anufrijeva) v Secretary of State for the Home Department  UKHL 36 at paragraph 31:
'If this analysis is correct, it is plain that Parliament has not expressly or by necessary implication legislated to the contrary effect. The decision in question involves a fundamental right. It is in effect one involving a binding determination as to status. It is of importance to the individual to be informed of it so that he or she can decide what to do. Moreover, neither cost nor administrative convenience can in such a case conceivably justify a different approach. This is underlined by the fact that the bizarre earlier practice has now been abandoned. Given this context Parliament has not in specific and unmistakeable terms legislated to displace the applicable constitutional principles.'
As Parliament arguably has 'expressly or by necessary implication legislated to the contrary effect', it is hard to see how no-notice deprivations can be said to be ultra vires if they fall within the specified circumstances in section 40(5A). A further issue beyond the scope of this piece, however, is whether the judicial oversight in Schedule 2 of NABA affords the safeguards required by international conventions, such as the 1961 Convention on the Reduction of Statelessness, which the UK has ratified.
Due to the absence of published statistics, it is not clear to what extent the requirement to give notice has been dispensed with in the last year, nor how many of the increasing appeals raise the issue. What is certain is that the position on no-notice citizenship deprivations as it stood after D4 has been significantly altered by subsequent legislation, requiring a change in approach to any challenges.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.