The Court of Appeal has today upheld the decision of the High Court, that the requirement in the British Nationality Act 1981 to “give written notice” before a person can be deprived of their British citizenship, cannot be satisfied by regulations permitting the placing of the “notice” on an internal file at the Home Office of which the person is unaware and to which they have no access.
The Court of Appeal, by a majority of 2:1, upheld the High Court’s ruling that Regulation 10(4) of the British Nationality (General) Regulations 2003, which permitted the Home Secretary to serve the decision to deprive a person of their British citizenship “to file” was unlawful, and of no effect.
Section 40(5) of the British Nationality Act 1981 requires the Home Secretary to give a person notice of a decision to deprive them of their British citizenship before a deprivation order can be made. The purpose of the notice is to inform a person of the decision to deprive them, to explain the reasons why, and to advise them of their right to appeal that decision. By section 41 of the Act, the Home Secretary is empowered to make regulations for the purposes of giving the notice required by the Act. In 2018, the Home Secretary introduced Regulation 10(4), which purported to allow notice to be given by serving the notice to file.
In the High Court, Chamberlain J found that the service to file regulation exceeded the power given to the Home Secretary by Parliament, because service to file is not capable of “giving notice” to the affected individual, and therefore does not satisfy the statutory requirement imposed by Parliament. The judge recorded in his judgment: “as a matter of ordinary language, you do not “give” someone “notice” of something by putting the notice in your desk drawer and locking it. No-one who understands English would regard that purely private act as a way of “giving notice”.” Today, the Court of Appeal (with the Master of the Rolls dissenting) dismissed the Home Secretary’s appeal against that decision, with Lady Justice Whipple noting that “The 1981 Act does not confer powers of such breadth that the Home Secretary can deem notice to have been given where no step at all has been taken to communicate the notice to the person concerned and the order has simply been put on the person’s Home Office file.”
Dan Squires QC with Ayesha Christie (in the Court of Appeal) and Jessica Jones (in the High Court) acted for D4, instructed by Anne Mc Murdie at Birnberg Peirce