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How can a person’s British citizenship be taken away?

Posted by: Gherson Citizenship and Nationality

In our last blog What is citizenship deprivation? we introduced the concept of citizenship deprivation. We explained that section 40 of the British Nationality Act 1981 provides that a person may be deprived of their British citizenship where it is “conducive to the public good” or where it was obtained by “fraud, false representation, or concealment of a material fact”.

Today, we explain How can a person’s British citizenship be taken away?

Who decides whether to deprive a person of their citizenship?

Under section 40 of the 1981 Act, the power to remove a person’s citizenship is granted to “the Secretary of State”. In practice, this means the Secretary of State for the Home Department.

When the Secretary of State deprives a person of their citizenship on the “public good” ground, they usually do so on the advice of the Security Service. Notwithstanding, the Secretary of State must exercise their own discretion. Hence, the Secretary of State may deprive a person of their citizenship even if the Security Service decides there are better ways of managing any security risks posed by the individual (e.g. Y1 v SSHD [2013] UKSIAC 112/2011 (13 November 2013)).

Will I know if I am deprived of my British citizenship?

How can a person’s British citizenship be taken away?Section 40(5) of the 1981 Act requires the Secretary of State to serve written notice to a person who is being deprived of their British citizenship. However, regulation 10(5) provides for “deemed” service in a number of scenarios. Hence, when notice is sent by post, it will be deemed served on the second day after it is sent (if it is sent to an address in the UK) or on the twenty-eighth day after it is sent (if it is sent abroad). This means that an individual could lose their citizenship without ever actually receiving the notice.

In 2018, the Home Office went much further by creating regulation 10(4), which allows the Secretary of State to satisfy the notice requirement by simply placing the notice or a copy on the Home Office file. This option is available to the Secretary of State where:

  • the person’s whereabouts are not known; and
  • either—
    • no address has been provided for correspondence and the Secretary of State does not know of any address which the person has used in the past; or
    • the address provided to the Secretary of State is defective, false or no longer in use by the person; and
  • no representative appears to be acting for the person or the address provided in respect of that representative is defective, false or no longer used by the representative.

As a result, people have been deprived of their British citizenship without the Secretary of State even sending a notice to them.

That could be about to change. In the recent case of R (D4) v SSHD [2021] EWHC 2179 (Admin), the High Court ruled that regulation 10(4) is unlawful, because it is ultra vires section 40(5) of the 1981 Act. It follows that, going forward, the Secretary of State will be required to serve written notice to someone who is being deprived of their British citizenship. However, Chamberlain J took the unusual step of suspending the effect of his judgment. According to legal commentator Joshua Rozenberg, this may have been to provide the Home Office with “a little time to find a way out of the mess they got themselves into”, i.e. depriving suspected terrorists of their citizenship and unlawfully failing to serve notice.

How will I find out?

Regulation 10(1) provides that notice of the decision to deprive a person of their British citizenship can be served by hand, fax, email, courier, document exchange, or post. Notice can be served either on the deprived person or on someone who appears to act as the deprived person’s representative.

Under section 40(5), the notice of deprivation must state clearly that the Secretary of State has decided to deprive the person of their citizenship, the reasons for that decision, and information about that person’s right of appeal.

How Gherson can assist?

Gherson is proud of its reputation in the specialist area of British nationality law. If you think you are at risk of citizenship deprivation, please do not hesitate to contact us for advice, send us an e-mail, or alternatively, follow us on TwitterFacebook, or LinkedIn to stay-up-to-date.

 

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2021

 

Jack Boswell 

  Jack Boswell

  Legal Researcher

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