CHAPTER THREE – DEPRIVATION LAW AND GUIDANCE
The Secretary of State’s power to deprive an individual of their British citizenship is set out in the British Nationality Act 1981 ‘the BNA 1981’.
The BNA 1981 was brought in to update the laws relating to British nationality, which had been significantly amended since the previous British Nationality Act 1948 had come into force. The BNA 1981 has itself seen significant changes since it came into force, with the latest changes being made by the Nationality and Borders Act 2022. Section 10 of the Nationality and Borders Act 2022 makes a number of important changes to the BNA 1981 with regard to notification of deprivation. Not all of the changes made by the Nationality and Borders Act 2022 to the BNA 1981 have come into force yet.
Changes to legislation
The BNA 1981 has been in force since 1 January 1983. For 20 years after that, the BNA 1981 remained consistent in that that the Secretary of State could by order deprive an individual their citizenship if they had acquired their citizenship by registration or naturalisation, if satisfied that:
- The registration or naturalisation had been obtained by fraud, false representation or concealment of material fact: s40(1);
- the individual had shown disloyalty of disaffection towards Her Majesty by act or speech: s40(3)(a);
- the person had unlawfully traded or communicated with an enemy during any war in which Her Majesty was engaged or been engaged in or associated with any business carried out to assist an enemy in that war: s40(3)(b); or
- the person had been sentenced in any country to twelve months or more imprisonment within five years of the date of naturalisation or registration and the person would not become stateless: s40(3)(c), s40(5)(b).
Deprivation could take place in each case only if the Secretary of State was satisfied that it was not conducive to the public good that the individual should continue to be a British citizen.
The Nationality Immigration and Asylum Act 2002 came into force on 1 April 2003. It amended the BNA 1981 in three significant respects by introducing a general power to deprive a person of citizenship status if satisfied that the person had done anything “seriously prejudicial to the vital interests of the UK or a British overseas territory”. That “seriously prejudicial” power was not to be used if the Secretary of State was satisfied that to do so would make a person stateless (s.40(4) as was). Finally, the Act extended the power to include individuals whose citizenship was acquired by birth.
With effect from 16 June 2006, the “seriously prejudicial” requirement was replaced by the lower hurdle that the Secretary of State need only be satisfied that “deprivation is conducive to the public good”.
Current Statutory Powers: Section 40 of the BNA 1981
Section 40 of the BNA 1981 sets out the power to deprive individuals of their British nationality, with s.40(1) making clear that the power to deprive an individual of their “citizenship status” includes whether the individual status is as a British citizen, a British Overseas Territories citizen, a British Overseas citizen, a British National (Overseas), a British protected person, or as a British subject.
Section 40 provides for two circumstances in which an individual may be deprived of their British nationality:
- Where the Secretary of State considers it is conducive to the public good (s.40(2)); and
- Where registration or naturalisation has been obtained by way of fraud, false representation, or concealment of a material fact (s.40(3))
In Pirzada (Deprivation of citizenship: general principles) the Upper Tribunal held that:
“The separation of sub-ss (2) and (3) makes it clear that obtaining naturalisation by one of the means of deception set out in sub-s (3) cannot of itself amount to a reason enabling the Secretary of State to be satisfied that deprivation is conducive to the public good for the purposes of sub-s (2); but, in an appropriate case, there would appear to be no reason why the Secretary of State should not be satisfied that the conditions under both subsections exist.”
Current Statutory Powers: Section 40A of the BNA 1981
Section 40A of the BNA 1981 sets out the right of appeal that an individual might have against a decision made in respect of the under section 40 of the BNA 1981. That appeal will be either to the First-Tier Tribunal (IAC) or to SIAC, depending on the circumstances of the decision to deprive.
Current Statutory Powers: Section 40B of the BNA 1981
Section 40B of the BNA provides for the requirement by the Secretary of State to review the power given under section 40(4A). Section 40(4A) states:
“S.40(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—
(a) the citizenship status results from the person’s naturalisation,
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and
(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory”
Section 40(4A) was inserted by the Immigration Act 2014, and conferred upon the Secretary of State the power to deprive a person of British citizenship resulting from naturalisation, in circumstances where the consequence of that order is to render the person stateless. The power maybe exercised in circumstances where both s.40(4A)(b) and (c) apply. It was brought in following the failed attempt to deprive Hilal al-Jedda, a naturalised British citizen, of his citizenship. The law as it had stood since April 2003, meant there could be no deprivation of citizenship when the Secretary of State was satisfied that this would render a person stateless. Despite seeking to argue that Mr al-Jedda’s Iraqi citizenship had revived or alternatively that he had made himself stateless by failing to apply for Iraqi Citizenship, the Supreme Court disagreed with the Secretary of State (in Secretary of State for Home Department v Al-Jedda).
During its passage through the parliamentary process, the power to render an individual stateless was considered sufficiently controversial, having few international parallels, that a statutory provision for a review of the power to be inserted into the BNA 1981. The requirements for the Secretary of State to conduct a review as required by section 40B are that:
“(1) The Secretary of State must arrange for a review of the operation of the relevant deprivation power to be carried out in relation to each of the following periods—
(a) the initial one year period;
(b) each subsequent three year period.
(2) The “relevant deprivation power” is the power to make orders under section 40(2) to deprive persons of a citizenship status in the circumstances set out in section 40(4A).
(3) A review must be completed as soon as practicable after the end of the period to which the review relates.
(4) As soon as practicable after a person has carried out a review in relation to a particular period, the person must—
(a) produce a report of the outcome of the review, and
(b) send a copy of the report to the Secretary of State.
(5) The Secretary of State must lay before each House of Parliament a copy of each report sent under subsection (4)(b).
(6) The Secretary of State may, after consultation with the person who produced the report, exclude a part of the report from the copy laid before Parliament if the Secretary of State is of the opinion that it would be contrary to the public interest or prejudicial to national security for that part of the report to be made public.
(7) The Secretary of State may—
(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of a review, and
(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of a review (including arrangements for the provision of staff, other resources and facilities).
(8) In this section—
“initial one year period” means the period of one year beginning with the day when section 40(4A) comes into force;
“subsequent three year period” means a period of three years beginning with the first day after the most recent of—
(a) the initial one year period, or
(b) the most recent subsequent three year period.”
The first report was published by the Independent Reviewer, David Anderson QC in April 2016. The report covered the period from 30 July 2014 to 29 July 2015. The report noted that as of the date of publication there had been no exercise of the power at the time the report had gone to print. In providing a helpful review of the evolution of the power the report noted that neither of the two principal international Conventions which seek to avoid incidents of statelessness (1961 UN Convention on the Reduction of Statelessness & Council of Europe 1997 European Convention on Nationality) prevent the UK from exercising the power under s.40(4A).
The report noted that the statute affords the Secretary of State a breadth of discretion. The use of the power is not contingent on an individual receiving a conviction for a terrorist offence but only on the deprivation being conducive to the public good because the individual, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom.
The report addressed a number of specific reservations about the power, some of which were raised by the Human Rights (Joint Select Committee) ‘JCHR’ and which may however, in the event the Secretary of State exercised the power, be in issue in future legal challenges. The observations included: –
- The Government’s refusal to accept the applicability of the ECHR to out of-country deprivations;
- The absence of a specific statutory requirement that the best interests of any children are treated as a primary consideration;
- Differential treatment of natural-born and naturalised citizens;
- The absence of a specific statutory requirement that “a proportionality approach” will be adopted by the Secretary of State.
- The “retrospective nature of the power”, as the JCHR described it, by which is meant its application to persons who already have British citizenship by naturalisation;
- The absence of a legal requirement that, in challenging the deprivation of citizenship in the Special Immigration Appeals Commission, the individual must be shown the gist of the case against him, sufficient to enable him to instruct counsel (the so-called AF disclosure obligation);
- The application of the residence test for legal aid to appeals to the First-Tier Tribunal, and the calculation of time limits for appeal;”
Secretary of State’s Guidance
The Home Office has issued separate and updated caseworker guidance on deprivation and nullity cases on 10 May 2023. This replaced the previous version which dated back to 27 July 2017, and covered both deprivation and nullity. The previous guidance reflected the old Chapter 55 guidance and had been in modernisation for a significant period of time.
  UKUT 196 (IAC)
  UKSC 62, 9 October 20130
 ’Deprivation of British citizenship’, Version 1.0, 10 May 2023