Secretary of State for the Home Department
v E3
Also known as: E3 v Secretary of State for
the Home Department
|
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No Substantial Judicial Treatment |
Court
Court of Appeal (Civil Division)
Judgment Date
21 November 2019
Where Reported
[2019] EWCA Civ 2020
[2019] 11 WLUK 321
[2020] Imm. A.R. 478
[2020] C.L.Y. 1041
Subject
Immigration
Other related subjects
International law
Keywords
Bangladesh; Burden of proof; Citizenship; Diplomatic
notes; Interpretation; National security; Terrorism
Judge
Counsel
For the appellant: Neil Sheldon QC, James Stansfeld.
For the respondents: Hugh Southey QC, Alasdair Mackenzie.
Solicitor
For the appellant: Government Legal Department.
For the respondents: Duncan Lewis.
Case Digest
Summary
In considering whether orders made under the British
Nationality Act 1981 s.40(2) depriving two people of their British
citizenship had rendered them stateless, the Special Immigration Appeals Commission
(SIAC) had erred in law in concluding that the secretary of state bore the
burden of proof on the “specific” question of the effect of a note verbale from
the British High Commission in Dhaka to the Bangladesh authorities regarding
matters of dual Bangladeshi and UK citizenship. The case was remitted to a
differently constituted SIAC to decide the issue of statelessness.
Abstract
The secretary of state appealed against the decision of
the Special Immigration Appeals Commission (SIAC) overturning her orders
depriving the respondents (E3 and N3) of their British citizenship under the British
Nationality Act 1981 s.40(2).
E3 was born in the UK and was thus a British citizen by
birth pursuant to the British
Nationality Act 1948. His parents were both citizens of Bangladesh
at the time of his birth and accordingly he was also a Bangladeshi citizen at
the time of his birth. In June 2017, the secretary of state gave E3 notice that
she intended to make an order under s.40(2) of the 1981 Act. N3 was born in
Bangladesh and acquired Bangladeshi citizenship at birth. His parents were both
naturalised British citizens, so that he was also a British citizen at birth
pursuant to s.2(1)(a)
of the 1981 Act. In October 2017, the secretary of state gave N3 notice that
she intended to make an order under section 40(2) of the 1981 Act. The
appellants appealed the deprivation decisions on a number of grounds, including
that at the date of the decisions they did not hold Bangladeshi nationality so
that the decisions rendered them stateless. The SIAC heard evidence concerning
the legal status of a note verbale from the British High Commission in
Dhaka to the Bangladesh authorities, questioning the application and effect of
a Bangladesh statutory notification (SRO No. 69) which dealt with matters of
dual Bangladeshi and UK citizenship, and the response from the Ministry of
Foreign Affairs. It determined that the secretary of state had not established
that the note verbale articulated that there was a settled or
established practice in Bangladesh which meant that E3 and N3 were not
stateless as a result of the deprivation decisions. The issue raised by the
instant appeal was as to whether the secretary of state was precluded by s.40(4)
of the 1981 Act from making the orders because they rendered the appellants
stateless.
The secretary of state contended that the SIAC had made
two material errors of law in determining the preliminary issue of
statelessness: it had erred in law in concluding that the secretary of state
bore the burden of proof on the “specific” question of the effect of the note
verbale; and even if the burden of proof in respect of the note verbale was
on the secretary of state, the SIAC was wrong to conclude that the evidence was
insufficient to discharge that.
Held
Appeal allowed.
There was a consistent line of authority which, although
not strictly binding on the instant court, established that once the secretary
of state had demonstrated that he was satisfied that the deprivation order
would not render the individual stateless, the burden of proving that the
individual would be rendered stateless by the deprivation order was on the
individual, Abu Hamza v SSHD (SC/23/2003) and Al-Jedda v Secretary of
State for the Home Department [2012] EWCA Civ 358, [2012] 3 WLUK 959 considered.
In Hashi v Secretary of State for the Home Department [2016] EWCA Civ 1136,
[2016] 11 WLUK 454 the question of where the burden of proof lay on the
issue of statelessness was in issue and was fully argued. The statutory regime
under section 40(4) of the 1981 Act had two stages: firstly, the secretary of
state demonstrated that he was satisfied that the deprivation order would not
render the appellant stateless and on that issue the burden was on the
secretary of state; once that burden was satisfied, at the second stage, if the
appellant wished to establish that nonetheless the deprivation order would
render him stateless, the burden of so proving was on the appellant, Hashi
applied, R3 v SSHD (SC/150/2018) considered (see paras 55-64 of
judgment).
Having stated that generally the burden of proof was on
the appellants in relation to the issue of statelessness, the SIAC erred in
concluding that nonetheless, in relation to the note verbale the burden
of proof switched to the secretary of state. Accordingly, the SIAC erred in law
in reaching the conclusion it did that the burden of proof in relation to the note
verbale was on the secretary of state. The burden of proof on the issue of
statelessness was on the appellants throughout. That error of law infected the
reasoning of the SIAC in relation to the note verbale generally (paras
66-69).
Furthermore, the SIAC also erred in law in
mischaracterising the note verbale. It was clear that what was being
addressed was application or interpretation of the law of Bangladesh. The note
verbale was an official document which complied with all the relevant
formalities. The SIAC mischaracterised the note verbale as being somehow
“extra-official” and only evidence of or an opinion about practice, Pham v
Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 W.L.R.
1591, [2015] 3 WLUK 744 followed (paras 70-73).
The appeal should be allowed on the first ground of
appeal. In the circumstances, it was not necessary to consider the second
ground of appeal which would only have arisen if the appeal did not succeed on
the first ground. The appropriate course was to remit the case to a differently
constituted SIAC to decide the issue of statelessness, applying the correct
approach to the burden of proof and giving proper consideration to the status
and effect of the note verbale (para.74).