Home Office loses case over stripping citizenship without notice after challenge by alleged Isis member

Court of Appeal says parliament must decide whether Priti Patel should be given new powers

The Home Office has lost the latest stage of a court battle over stripping people of their British citizenship.

The Court of Appeal found it was unlawful to remove people’s nationality without giving proper notice, after a challenge by a woman who allegedly joined Isis in Syria.

The woman, who can only be identified as D4, is being held in the same Syrian camp as Shamima Begum and did not find out her British citizenship had been removed for 10 months.

The High Court previously ruled that the decision to remove her British citizenship was “void and of no effect“ because she was not notified, but the Home Office appealed the judgment.

In a ruling delivered on Wednesday, Lady Justice Whipple said: “There may be good policy reasons for empowering the home secretary to deprive a person of citizenship without giving notice, but such a step is not lawful under this legislation.

“If the government wishes to empower the secretary 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 ... it is for parliament to decide.”

The bill, which is currently being considered by parliament, would remove the requirement to give notice of citizenship deprivation if the home secretary “does not have the information needed to be able to give notice”, it would “not be reasonably practicable” or was not in the interests of national security of “in the interests of the relationship between the UK and another country”.

Reports of previous cases have sparked diplomatic rows, seeing countries including Bangladesh reject the possibility of accepting alleged terrorists as citizens.

Isis members are believed to make up a significant proportion of at least 150 people who have had their British citizenship removed for the “public good” since 2014.

Figures have only been released up until the end of 2019. An annual report containing the information has not been published by the government for almost two years, and there has been no reason given for the delay.

A report by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, said the deprivation of citizenship “has been a major part of the United Kingdom's response to those who have travelled to Isis-controlled areas”.

Mr Hall has warned of an “inadequate level of independent review” of the power and its effects and asked for it to be brought into his remit, but the request was refused by the government.

The Home Office said it intended to seek permission to appeal the Court of Appeal judgment at the Supreme Court, adding: “The government will not apologise for removing the citizenship of terrorists, those involved in serious and organised crime and those who seek to do us harm.

“Citizenship deprivation only happens after very careful consideration of the facts and in accordance with international law. Each case is assessed individually on its own merits and always comes with the right to appeal.”

The legal charity Reprieve accused the government of “cynically attempting to circumvent the courts” with the Nationality and Borders Bill.

Director Maya Foa added: “It would render this ruling moot, making a mockery of the rule of law. Ministers should change course and recognise that depriving people of their citizenship without even telling them is an affront to British principles of justice and fairness.”

The proposed changes to the law, which already permits the home secretary to remove people’s British citizenship for the “public good” if they are deemed eligible for a different nationality, have sparked protests and allegations of discrimination.

The Court of Appeal said the bill would “have the effect of disapplying the notice requirement in certain circumstances”, but that notice currently has to be given.

Lady Justice Whipple said the parliamentarians that brought in the original 1981 British Nationality Act “deliberately structured the process for depriving someone of their citizenship to include minimum safeguards for the individual”.

She added: “The 1981 act does not confer 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 the person concerned, and the order has simply been put on the person’s Home Office file.”

Lord Justice Baker agreed with the judgment but Sir Geoffrey Vos, Master of the Rolls, dissented and argued that the current law did not require notice to be given.

Lord Justice Baker noted that the grounds for removing someone’s British citizenship had been extended several times in recent decades, “but the requirement to give notice has always been an integral part”.

The court heard that D4 has been detained in the al-Roj camp since January 2019 alongside other women and children caught while leaving Isis territory.

In December that year, a minister removed her UK citizenship but she was not formally informed until October 2020, after her solicitors asked the government to repatriate her and were refused.

D4 then appealed to the Special Immigration Appeals Commission and started judicial review proceedings in the High Court.

The law states that the government “must give the person written notice” of a citizenship deprivation decision, providing reasons for it and notifying them of their right to appeal.

In 2018, the Home Office changed regulations setting out how notice can be given if 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 was “deemed to have been given” to the person in question if the Home Office made a record of it and put it on their file.

Giving his judgment at the High Court last year, Mr Justice Chamberlain remarked: “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’.”