9-H_SIAC Guidance Note 7: Deprivation of Nationality

Power to deprive 1. The Secretary of State may deprive an individual of their British nationality if: a. he is satisfied that deprivation is conducive to the public good and the person would not be rendered stateless (s40(2) and (4) British Nationality Act 1981); or b. where registration or naturalisation of British nationality was obtained by fraud etc (s40(3) and (6) 1981 Act) Process 2. There is a 3 stage process: a. Secretary of State decides to make a deprivation order; b. Secretary of States serves a notice that he has so decided; c. Secretary of State makes a deprivation order. 3. A deprivation order cannot be made until the individual has been served with a notice specifying that the Secretary of State has decided to make an order, the reasons for the order and the person’s right of appeal (s40(5) 1981 Act). 4. The notice is deemed to have been given to the individual: a. if sent by post from and to a place in UK on the 2 nd day after it is sent; b. if sent by post from or to a place outside UK on the 28th day after it is sent; c. in any other case on the day on which the notice is delivered. If the person’s whereabouts are not known the notice should be sent by post addressed to him at his last known address. (Reg 10 British Nationality (General) Regulations 2003 (S.I. 2003/548)) 5. There is no common law obligation to seek representations from the individual before making the deprivation order: a. Counsel advised there was a ‘fairly slim’ chance of arguing successfully that representations must be sought after service of the notice and before making the deprivation order because by then the decision to deprive will have been taken and the individual will have been notified of his appeal rights. b. Counsel advised that the case for seeking representations before making a deprivation decision is stronger. But it could be properly argued that Parliament intended s40 of the 1981 Act (and the full right of appeal) to provide the entire scheme without any supplementation by the common law and therefore without any such obligation to seek representations. Even if there is such an obligation, Counsel advised it would be disapplied if the purpose of deprivation (and exclusion) is to prevent an individual returning to the UK to engage in immediate terrorist activity. (Jonathan Swift, con 4 February 2009, note with HOLAB)

6. A deprivation order can therefore be made as soon as the notice has been given to the individual (eg NM, SIAC appeal pending). 7. The Secretary of State currently takes deprivation decisions and makes deprivation orders on non-conducive grounds personally. However, he can delegate this power to an official of the Secretary of State (as in NM, SIAC appeal pending). 8. Points to note: a. As a general rule, it is not an abuse of process to deprive a person of their nationality whilst they are outside the UK and to then exclude without delay. But there will be difficult cases and legal advice should be sought. b. Where deprivation is on fraud etc grounds the Secretary of State currently seeks information from the individual before making a decision to deprive. There is a risk that this will be seen to be seeking representations and therefore to undermine our argument that we don’t need to seek such representations in the national security context. c. Where deprivation is on fraud etc grounds the order will not be made until any appeal has been determined. But where deprivation is on non-conducive grounds the order may be made immediately after the notice has been given and prior to any appeal being brought. d. It is advisable to have proof that the notice has been served. e. There is no requirement to serve the actual deprivation order on the individual. Appeal 9. An individual who has been served notice of the decision to make an order to deprive him of his British nationality has a full right of appeal: s40A(1) of the 1981 Act; Al Jedda v SSHD 7 April 2009 para 7. 10. The appeal lies to the AIT unless the Secretary of State certifies that the decision was taken wholly or partly in reliance on information which should not be made public in the interests of national security or diplomatic relations or otherwise in the public interest, in which case the appeal will lie to SIAC: s40A(2) of the 1981 Act; s2B SIAC Act 1997. 11. Article 6 ECHR does not apply to deprivation appeals: Al Jedda v SSHD 22 October 2008 (preliminary issue). Guidance 12. See Chapter 55 of the Nationality Caseworking Instructions. Additional material   Note on citizenship served by SSHD in Al Jedda (sets out the effect of citizenship) Al-Jedda v SSHD 7 April 2009 (SIAC determination)

September 2009