According to the most recent government figures available, 104 people were deprived of their British Citizenship in 2017 on the basis that to do so was conducive to the public good. In 2016, the number was 14.

The British Nationality Act 1981 (as amended), which regulates deprivation of citizenship, affords the secretary of state significant discretion – but a recent High Court ruling shows that government overreach will be not be tolerated. The ruling in D4 v SSHD [2021] EWHC 2179 made clear that individuals (in this case, members of ISIS) must be informed of moves to strip them of their British citizenship.

Let’s wind back a year to the high-profile case of Shamima Begum, who left the UK at 15 years of age to join Islamic State in Syria. After it became known she wanted to return to UK, her British citizenship was revoked by the then home secretary Sajid Javid.

Though international law does not permit this if it would leave the person stateless, Begum had dual citizenship in Bangladesh. The High Court decision was upheld by the Supreme Court which, in an important judgment, set out the balancing act between public safety and national security, the right to a fair hearing and the secretary of state’s extraterritorial human rights policy. The court, for instance, made clear that the right to a fair hearing does not trump all other considerations, such as the safety of the public.

The recent ruling follows a case brought by another British female Isis member who had been held at the same camp in Syria as Begum. D4, as she is referred to, had her British citizenship removed in December 2019 – a decision now declared “void and of no effect”. D4 did not know about it until October 2020.

Under s40(5) of the 1981 Act, before making such an order for the public good, the Home Secretary must give the individual written notice of the decision to do so. If notice cannot be given for whatever reason, the order cannot be made.

Under amended regulations made in 2018 to deal with cases in which the person’s whereabouts are unknown, there is no valid address for correspondence and no representative acting, in such a case, “the notice shall be deemed to have been given” when the Secretary of State makes a record of these circumstances and places the notice or a copy of it on the person’s file.

However, Mr Justice Chamberlain found that the government had acted ultra vires by failing to tell D4 she was having her citizenship removed. He said that Parliament did not give the Home Secretary power to make regulations that treat notice as having been given to the person affected when it has not been given to that person, but instead has simply been placed on a Home Office file.

This was effectively about the plain meaning of the language used in the original legislation. “As a matter of ordinary language”, he stated, “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’.”

Regulation 10(4) was therefore ultra vires; the decision was void and of no effect.

What does this mean?

The ruling gives much needed certainty for British citizens who risk losing their citizenship on the ground that deprivation would be conducive to the public good. Notice must be given before such an order can be made.

That said, the court clarified that depending on the circumstances, this may not require notice to have been received – it will depend on whether reasonable steps were taken to communication notice to the individual.

This is unlikely to be the final word on deprivation of citizenship cases given the increase in cases in recent years. The government is considering whether to appeal this recent ruling.