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Reported Case

E3 & Ors v Secretary of State for the Home Department [2022] EWHC 1133 (Admin) (13 May 2022) (26 May 2022)

Date: 26/05/2022
Duncan Lewis, Reported Case Solicitors, E3 & Ors v Secretary of State for the Home Department [2022] EWHC 1133 (Admin) (13 May 2022)

High Court dismisses judicial review claim brought by ‘entirely blameless’ 2-year-old left without British citizenship after Home Secretary incorrectly deprived her father of citizenship in judgment on E3, N3 and ZA v the Secretary of State for the Home Department.

The High Court has dismissed the judicial review claim of a two-year old child left without a right to British citizenship after the Home Secretary had incorrectly deprived her father of his citizenship, rendering him stateless.

The child ZA’s father E3 was deprived of his British citizenship in 2017. Another man N3 was also deprived of his citizenship the same year. Both appealed the decisions to the Special Immigration Appeals Commission (SIAC) arguing that the decisions had left them stateless and were therefore unlawful.

Both men succeeded in their appeals before SIAC in 2018 but that decision was quashed by the Court of Appeal in November 2019 on the basis that SIAC had applied the incorrect burden of proof. E3 and N3 applied for permission to appeal to the Supreme Court.

While that application was pending, a judgment of the SIAC in three similar cases (C3, C4 and C7 v SSHD) was handed down, prompting the Home Secretary to withdraw her deprivation decisions against E3 and N3, which reinstated their British citizenship.

The judicial review claims were centred on an important question of principle; was the legal effect of the withdrawal decision prospective only (the defendant's analysis) or was it retrospective in the sense that it should be treated as never having been made (E3's and N3's analysis)?

The question had a specific importance for ZA, E3's daughter, who was born in Bangladesh during the period of deprivation.

If the deprivation effectively never happened then ZA would automatically be British on birth as her father was a British citizen. If the legal effect was prospective only, then she would not be British and there was no route for her to become British apart from appealing to the residual discretion of the Home Secretary, and that at considerable expense.

The issue is also of critical importance to N3, who was denied entry to the UK during this period and handed over to French immigration officers who placed him in detention for 18 months. If the decision had no effect and he was actually a British citizen, the UK may have acted unlawfully in refusing him entry which could lead to a large claim for damages.


Background

E3 and N3 were both British citizens when in 2017, the Home Secretary issued an order depriving them of citizenship under s. 40 of the BNA 1981.

At the time, the defendant believed they would not be made stateless because she had assessed them to also be Bangladeshi citizens.

Appeals to the SIAC by both E3 and N3 were upheld in November 2018, as it was found that their Bangladeshi citizenship had automatically lapsed when they turned 21 years of age by operation of Bangladeshi law, and as such they only had British citizenship at the date of their deprivation. This meant that the Home Secretary’s decision had left them stateless, something she was prohibited from doing.

On June 10, 2019, ZA was born in Bangladesh in 2019 and if her father (E3) was then still a British citizen, she would be a British citizen by descent.


The Defendant’s Position

The Secretary of State's case was that the SIAC's statelessness determination did not render the deprivation decisions null and void, and revoking the decisions was a matter for her, after which citizenship would be reinstated.

The Government’s legal team reasoning was that when the orders were made, the defendant believed N3 and E3 would not be made stateless but that following extensive litigation over the past few years, involving voluminous expert evidence, her view had now changed and she was no longer satisfied that depriving the men would not leave them stateless. She argued that the statutory test was not one of fact (that the decisions had left them stateless) but one of the state of her mind (that she was satisfied that the decisions had not left them stateless) at the time of deprivation. The Secretary of State noted that E3 could seek to apply to register ZA as a British citizen under the discretionary provisions of the BNA 1981.


Withdrawal versus appeal

The High Court held that there was a key difference between a withdrawal decision by the defendant and a successful appeal. In the event of a successful appeal, SIAC would simply find that the deprivation order had rendered the appellant stateless and would allow the appeal. Unless the defendant appeals that decision, the rule of law requires her to recognise that state of affairs and to take remedial action by withdrawing the decisions. In the light of the ruling, the defendant could no longer be satisfied the order would not render the appellant stateless. If the defendant were to do and say nothing, she would be compellable in judicial review proceedings to take action.

In a withdrawal case, on the other hand, the defendant is explicitly accepting that the deprivation order cannot stand, and the act of withdrawing it carries the inevitable corollary that the appellant's underlying entitlement to citizenship is restored, automatically reviving entitlements once the deprivation order was withdrawn.


The Ruling

In weighing up the arguments, the judge held that the defendant was entitled to reconsider decisions without conceding they were unlawful when they were made. The Home Secretary was accepting that, in view of SIAC's very clear conclusions in parallel litigation, these deprivation orders could not stand.

Mr Justice Jay held that the effect of the withdrawal decisions in the instant cases was prospective only. The defendant must respond appropriately to the SIAC ruling, which in practical terms means that she must withdraw the deprivation order.

He added: “That the rule of law does not require that the deprivation order be withdrawn with retrospective effect. That would be an uncovenanted gain for an appellant, who would be achieving more than SIAC has in fact determined.”

The court noted the impact of the decision on ZA was ‘somewhat harsh’, describing her as ‘entirely blameless’ but that she could apply to register as a citizen.

Duncan Lewis Solicitors’ immigration consultant Fahad Ansari said the ruling “failed to take into account that there was no clear route to citizenship for ZA and her position was entirely at the discretion of the Secretary of State.

“It has grave implications for other children detained in the Kurdish prison camps in northern Syria who were born at a time when their parents were incorrectly deprived of their citizenship.”

All three claimants intend to apply to the Court of Appeal for permission to appeal the decision.




Representation: immigration consultant solicitor Fahad Ansari instructed Hugh Southey QC, of Matrix Chambers, and Alasdair MacKenzie, of Doughty Street Chambers.


 

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