The High Court has today held that a statutory requirement to “give notice” of a decision cannot be met by a provision permitting notice to be served “to file”. The High Court held that Regulation 10(4) of the British Nationality (General) Regulations 2003, by which the Secretary of State for the Home Department purports to give notice to individuals deprived of their British citizenship by placing a notice on an internal Home Office file was unlawful.
Section 40(5) of the British Nationality Act 1981 requires the Secretary of State to give a person notice of a decision to deprive them of their British citizenship before a deprivation order can be made. Parliament has decided, therefore, that the making of a lawful deprivation is contingent on prior notice having been given (though there is no requirement for any particular amount of time to elapse between the giving of notice and the making of the order). By section 41 of the British Nationality Act, the Secretary of State is empowered to make regulations for the purposes of giving the notice required by the Act. In 2018, the Secretary of State introduced Regulation 10(4), which purported to allow notice to be given by serving the notice to file. In today’s judgment, Chamberlain J found that the service to file regulation exceeds the power given to the Secretary of State by Parliament: service to file is not capable of “giving notice” to the affected individual, and therefore does not satisfy the statutory requirement imposed by Parliament. As the judge records 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”.”