Supreme Court rules Appellants were British all along

12 March 2025 by Shaheen Rahman

N3 & ZA v Secretary of State for the Home Department [2025] UKSC 6 concerned orders depriving two British people of their citizenship on national security grounds. The Defendant (initially) contended that to do so would not render them stateless, because they were dual British Bangladeshi nationals.

The use of deprivation orders in this context has been controversial, with critics across the political spectrum. Notably, writing in the Spectator, Jacob Rees-Mogg said of the Shamima Begum case:

“The ability to deprive people, who have a claim to another citizenship, of their British passport, creates two categories of Briton. Those with no right to another nationality are in the first-class carriage. Whatever they do, they cannot be made an exile or outlaw and expelled from the country. On the other hand, those who themselves came to the UK or whose parents did so are in the second-class carriage. They may be stripped of their citizenship even if they have never claimed another foreign nationality or even visited the country. This is a fundamentally racist policy as it denies the absolute Britishness of all those who are either recent immigrants themselves or their children.”

In the instant case, the deprivation orders were subsequently withdrawn. The Supreme Court has held that the effect of that withdrawal is that the Appellants are to be treated as having been British Citizens throughout.

The appeals

E3 was born in the UK in 1981 and was a British citizen at birth. His parents were Bangladeshi citizens at the time of his birth and so he was also a Bangladeshi citizen.

N3 was born in Bangladesh in 1983 and was a Bangladeshi citizen at birth. His parents were naturalised British citizens and so he was also a British citizen.

In 2017, the Defendant made orders depriving N3 and E3 of their British citizenship on the ground that they had participated in Islamic terrorist organisations and posed a risk to national security. The Defendant considered that they were dual British Bangladeshi citizens and would not be rendered stateless by the orders.

E3 and N3 appealed against the decisions, arguing that under Bangladeshi law they had lost their Bangladeshi citizenship at the age of 21. That argument subsequently succeeded in separate cases before SIAC, determined in April 2021. In light of that, the deprivation orders were withdrawn and E3 and N3’s British citizenship was reinstated. They contested this description on the basis that their citizenship had always remained intact, the deprivation orders being unlawful. That was of particular relevance to E3 who had a daughter who had been born in June 2019, in Bangladesh. If E3 was a British citizen at the time of her birth, ZA would also be a British citizen by descent.

The Defendant argued that the original decisions were lawful notwithstanding that a decision to reinstate the appellants’ citizenship had now been taken, upon consideration of the outcome in separate proceedings. N3 and E3 had not retained their citizenship throughout, and accordingly ZA was not a British citizen.

E3, N3 and ZA challenged the Defendant’s refusal to accept that E3 and N3 were British citizens in the relevant period. Their claims failed at first instance and in the Court of Appeal. N3 and ZA appealed to the Supreme Court.

They argued that:

• A condition precedent for the lawful exercise of the power to deprive a person of British citizenship was that the person would not be rendered stateless by the order. If that was not established, then the deprivation order had no effect, and the person retains citizenship throughout.

• Even if that was wrong, the effect of withdrawing the orders was that they were to be treated in law as not existing at the outset.

The judgment

The Court unanimously allowed ZA’s appeal in full and N3’s in part, holding as follows:

• The status of citizenship is a fundamental status at common law, and grounds a common law right of abode in the United Kingdom. This is an important right and therefore the principle of legality is engaged, meaning that general or ambiguous words in legislation will not be readily interpreted as intended to remove this right [26-28].

• The United Kingdom also has a treaty obligation not to render a person stateless under article 8.1 of the Statelessness Convention [29].

• Section 40(4) of the British Nationality Act (“the Act”) provides that a deprivation order must not be made if it would make a person stateless. There is provision for an appeal to SIAC if a deprivation order is made on national security grounds. SIAC will usually have more information available than the Defendant had when making the orders, such as expert evidence. It will make its own decision based on all the evidence. It does not fulfil a judicial review function [34-38].

• Under normal circumstances, a court order will take effect from the date of the order and the practice in SIAC, in many cases, is for the date of the judgment to be the relevant date.  Ordinarily the outcome of an appeal is that the issue is treated from the outset in the manner determined by the appeal court. Alternatively, the outcome can be that the matter is treated in that way from now on, or that some matters are treated that way from the outset, and some from now on [38-40].

• The Court noted certain amended provisions and repealed amendments of the Act, including one that enabled enforcement measures such as detention with a view to removal to be progressed, prior to the determination of the appeal. This allowed for protection of the public as soon as the order was made. However, the Court did not accept that the purpose of such provisions was to enable the United Kingdom to breach its obligations under the Statelessness Convention, by making a person stateless between the making of an order and the outcome of a successful appeal [61-8].

• The Court rejected the Appellant’s argument that the exercise of the power to make a deprivation decision or order is dependent on the absence of statelessness as a precedent fact. The Secretary of State must form a subjective opinion on this issue, subject to normal public law obligations including the Tameside obligation to make reasonable enquiries. That was notwithstanding the appellate body’s distinct and separate function to determine the position as a matter of fact [72-74; 82-83].

• The Court also rejected the argument that the effect of a successful appeal against a deprivation order would be that for all purposes and at all material times the deprivation order should be regarded as unlawful. The far-reaching consequences of that would be that the individual would have a good claim for damages for false imprisonment during the period between the making of the order and the decision of SIAC. That would undermine the effect of provisions that permitted enforcement measures to be taken prior to determination of the appeal [84].

• However, the Court rejected the Defendant’s contention that if the order had validity and legal effect for that purpose, until a contrary determination by SIAC, it meant that the Appellants were not British nationals during that period and that consequently ZA did not acquire British citizenship at birth. This analysis was contrary to the proper interpretation of provisions reflecting fundamental rights, in accordance with the principle of legality and the presumption of compliance with the UK’s obligation under the Statelessness Convention [85-87].

• The Court concluded that once SIAC determines that a deprivation order would render an individual stateless and allows an appeal, (or the Secretary of State concedes that the appeal would be allowed, as here), then, for the purposes of determining the individual’s status in the period from the date of the making of the order until the appeal is allowed, the order is to be treated as having no effect [89-90].

• Both N3 and E3 were, accordingly, to be treated as having been British citizens throughout and ZA was a British citizen from birth [94].

Shaheen Rahman KC is a barrister at 1 Crown Office Row. Neil Sheldon KC of 1 Crown Office Row appeared for the Defendant. He did not contribute to this article.