LONDON: A woman accused of travelling to Syria to join the so-called Islamic State group was unlawfully stripped of her British citizenship because the Home Office did not give her notice, the Court of Appeal has ruled.
The woman, who is in her 50s and identified only as D4, has been held at the al-Roj camp in northern Syria, where Shamima Begum is detained, since January 2019. She had her citizenship removed in December 2019 and the decision was placed on her Home Office file, with a note saying the Government department’s legal advisers concluded that was appropriate, as her whereabouts were unknown at the time. A High Court judge ruled in July last year that this was unlawful, saying there was no legal power to treat a note on the file as giving notice of a deprivation of citizenship decision. That ruling was upheld by the Court of Appeal on Wednesday, with judges finding by a majority of two to one that the current law does not allow that method of giving notice.
The Home Office has the power to remove someone’s citizenship if it would be “conducive to the public good”, a power that has been used often in recent years with 104 people stripped of their British citizenship in 2017 alone.
But the department “must give the person written notice” of the decision, providing reasons for it and notifying them of their right to appeal. In 2018, the Home Office amended the regulations setting out how notice is to be given where someone’s whereabouts are unknown, there is no address to send documents to and they do not have a lawyer.
Under the new rules, notice of a decision to revoke someone’s citizenship is “deemed to have been given” to the person in question if it is placed on the Home Office’s file.
D4, a British citizen from birth, was stripped of her citizenship in December 2019, but was first told about the decision in October 2020 after her lawyers asked the Foreign Office for help to bring her back to the UK.
In July last year, Mr Justice Chamberlain concluded the decision which purported to deprive her of her British citizenship was “void and of no effect”, adding: “D4 was from that date, and remains, a British citizen.”
The judge said: “Parliament said that, before making an order in respect of a person, the Home Secretary must give the person written notice of the decision to do so.
“It could have imposed a requirement to give notice ‘where possible’ or ‘if practicable’, but it did not.” He added: “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’. That is so even if there is no reasonable step that could be taken to bring the notice to the attention of the person concerned.”
The Home Office appealed against that ruling, arguing that the Home Secretary has a “wide discretion” and is “entitled to implement provisions about notice being deemed to have occurred”.
But, dismissing the appeal, Lady Justice Whipple said the present law does not give powers “of such breadth that the Home Secretary can deem notice to have been given where no step at all has been taken to communicate the notice to her person concerned and the order has simply been put on the person’s Home Office file”.
The judge added: “To permit that would be to permit the statute to be subverted by secondary legislation. “Only Parliament can decide that the requirement for notice … should be altered in this way.”
The judge said Parliament is currently considering the Nationality and Borders Bill, which proposes removing the requirement to give notice in circumstances where it is not “reasonably practicable”.
Agreeing with Lady Justice Whipple, Lord Justice Baker said: “There may be good policy reasons for empowering the Secretary of State to deprive a person of citizenship, but such a step is not lawful under (the current) legislation.
“If the Government wishes to empower the Secretary of State in that way, it must persuade Parliament to amend the primary legislation.
“That is what it is currently seeking to do under the Nationality and Borders Bill.” Sir Geoffrey Vos disagreed with both judges, saying the current law would be “neutered” if citizenship could not be removed from a person who has no representative and cannot be contacted, but as his was the minority view the appeal was dismissed.
The Home Office was refused permission to appeal to the Supreme Court, but can ask the court directly to consider the case.