The joined appeals concerned the effect of withdrawn citizenship deprivation orders on N3 and on ZA, the daughter of E3. The Supreme Court held that N3 and E3 were to be treated as having retained British citizenship throughout for the purpose of determining their status. ZA was therefore a British citizen at birth.
Facts
E3 and N3 had held both British and Bangladeshi citizenship. The Secretary of State made deprivation orders against them under section 40 of the British Nationality Act 1981 on grounds that they posed threats to national security. E3’s order was made on 4 June 2017 and N3’s on 3 November 2017. Both appealed to the Special Immigration Appeals Commission (SIAC), arguing that under Bangladeshi law they had ceased to be Bangladeshi citizens at age 21, meaning the deprivation orders would render them stateless contrary to section 40(4) of the 1981 Act.
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The Secretary of State conceded their cases following a ruling in related proceedings before SIAC. The deprivation orders were withdrawn, but the Secretary of State described their citizenship as ‘reinstated’. However, the Secretary of State maintained the orders were lawful when made and effective during the intervening period. E3’s daughter ZA, born while her father’s order was in force, was consequently denied British citizenship at birth.
Issues
Primary Issue
Whether the absence of statelessness is a ‘precedent fact’ necessary for the lawful exercise of the Secretary of State’s power to make a deprivation order.
Alternative Issue
What is the effect on the deprivation order of a successful appeal – specifically whether it should be treated as: (a) a nullity from the outset; (b) having no effect only from the date of appeal outcome; or (c) having some effects from the outset and some from the appeal date.
Judgment
The Precedent Fact Argument
The Court rejected the submission that the absence of statelessness constitutes a precedent fact. Lord Sales and Lord Stephens explained:
The plain meaning of section 40(5) read with section 40(4) is that before making a deprivation decision under section 40(5) or a deprivation order under section 40(4), the Secretary of State must form a subjective opinion acting on the facts as then known to him or her subject to the normal public law obligations including the Tameside obligation to make reasonable enquiries. The Secretary of State’s subjective opinion is a state of mind and is not dependent on whether the situation in fact exists.
The Court noted that Parliament deliberately chose different language from statutes where precedent facts are required, observing that section 40(4) could have provided ‘that the Secretary of State may not make a deprivation order if the effect of the order would be to render the person concerned stateless. This was clearly a deliberate choice.’
The Effect of a Successful Appeal
The Court adopted a ‘middle position’ between the extreme submissions of both parties. It held that the statutory provisions must be interpreted applying the principle of legality (given the fundamental importance of British citizenship) and the presumption of compliance with the UK’s treaty obligations under the Statelessness Convention.
The Court stated:
The statutory provisions should be given effect to achieve the purpose for which they were enacted, namely to provide legal protection for the Secretary of State and his or her officials in relation to immigration enforcement action taken on the basis of a deprivation of citizenship according to his or her order; but they should only be given that effect, and not the wider effect for which Mr Sheldon contended.
Critically, the Court concluded:
Once SIAC determines that recognition of the validity of the deprivation order would render the individual stateless and it allows the appeal against it (or the Secretary of State concedes that SIAC must allow the appeal), then for the purpose of determining the individual’s status in the period from the date of the making of the order until the appeal is allowed (as distinct from the purpose of deciding whether immigration enforcement action taken in that period on the basis of that order was unlawful) the order is to be treated as having no effect: the individual is to be regarded as having been a British citizen throughout.
Implications
This judgment establishes an important distinction in the effects of successful appeals against citizenship deprivation orders. Success in the appeal does not itself make immigration enforcement action taken in reliance on the order unlawful. For the separate purpose of determining underlying citizenship status, the order is treated as having had no effect.
The decision confirms that the UK’s international obligations under the Statelessness Convention inform the interpretation of domestic nationality legislation, and that the principle of legality applies given the fundamental constitutional importance of British citizenship. The judgment also clarifies that no further administrative action by the Secretary of State is required to give effect to a successful SIAC determination – the Secretary of State is bound by it immediately, though formal withdrawal of the order is recommended as good practice.
Verdict: The Supreme Court allowed ZA’s appeal and made a declaration that she is a British citizen. The Court also allowed N3’s appeal in part, subject to the qualifications explained regarding the distinction between underlying citizenship status (restored from the outset) and the validity of immigration enforcement action taken during the appeal period.
Reported citations: [2025] AC 1473; [2025] 2 WLR 386; [2025] WLR(D) 111.
Source: N3 v Secretary of State for the Home Department [2025] UKSC 6
