The two claimants, E3 and N3, were British citizens who had also acquired Bangladeshi citizenship at birth. E3 was born in the United Kingdom and both parents were citizens of Bangladesh at his birth; accordingly he was a Bangladeshi citizen by descent at least at the time of his birth. The second claimant, N3, was born in Bangladesh and accordingly acquired Bangladeshi citizenship at birth; his parents were both naturalised British citizens, so that he was also a British citizen at birth. The Secretary of State made orders pursuant to section 40(2) of the British Nationality Act 1981 depriving the claimants of their British citizenship on the ground that it was “conducive to the public good” to do so, since the claimants were involved in terrorism-related activities abroad. Each notice stated that, in accordance with section 40(4) of the 1981 Act, the Secretary of State was satisfied that the order would not make E3 or N3 stateless. Upon being notified of the deprivation decisions, both claimants appealed to the Special Immigration Appeals Commission (“SIAC”) on the ground that at the date of the decisions they did not hold Bangladeshi nationality, so that the decisions rendered them stateless. The SIAC accordingly decided to deal with the issue of statelessness as a preliminary issue. This involved an analysis of the law in Bangladesh. On 18 March 2008 a statutory notification (SRO No 69) was issued in the Bangla language by order of the President of Bangladesh (“the 2008 instruction”). It set out directives issued by the Bangladesh Government with regard to the granting or continuation of Bangladeshi citizenship to those Bangladeshis who had acquired citizenship of the United Kingdom. The British High Commission in Dhaka submitted a note verbale to the Bangladesh authorities asking a series of questions about the application and effect of the 2008 instruction. The Ministry of Foreign Affairs of Bangladesh wrote in response, setting out the answers provided by the responsible department; the Security Service Division, Ministry of Home Affairs. The note verbale was adduced in evidence by the Secretary of State before the SIAC, in the appeals of E3 and N3. The SIAC held that, while generally the burden of proof was on the claimants in relation to the issue of statelessness, none the less, in relation to the note verbale, the burden of proof switched to the Secretary of State. The Secretary of State appealed the finding on the ground that the SIAC had made a material error of law in determining that the Secretary of State bore the burden of proof on the “specific” question of the effect of the note verbale.
On the Secretary of State’s appeal—
Held, appeal allowed. The statutory regime under section 40(4) of the 1981 Act had two stages. The first stage was that the Secretary of State demonstrated that she was satisfied that the deprivation order would not render the claimant stateless and on that issue the burden was on the Secretary of State. Once that burden was satisfied, at the second stage, if the claimant wished to establish that none the less the deprivation order would render him stateless, the burden of so proving was on the claimant, given that the claimant was alleging that there should be an exception to a general power. The analysis did not detract from the claimant’s fundamental rights of citizenship. The fact that, before making a deprivation order the Secretary of State had to be satisfied that the order would not render the claimant stateless required a degree of investigation by the Home Office and thus provided a safeguard in respect of those rights. Although it would be a comparatively easy burden for the Secretary of State to discharge to demonstrate that she was so satisfied, the first stage provided a protection for the individual against the arbitrary exercise of the power; being satisfied at the first stage was a condition precedent to the exercise of the power. In the present case, having stated that generally the burden of proof was on the claimants in relation to the issue of statelessness, the SIAC erred in concluding that none the less, in relation to the note verbale, the burden of proof switched to the Secretary of State. The well-established principle, that he who asserted should prove did not support the conclusion reached by the SIAC, that the burden of proof shifted depending on who adduced a particular piece of evidence of the relevant foreign law. That approach confused the legal burden of proof with the evidential burden. The evidential burden was on the Secretary of State in the sense that if he wished to call evidence on the interpretation of the 2008 instruction (whether in the form of the note verbale or otherwise) it was incumbent on him to do so. However once such evidence was adduced it did not follow that the legal burden of proof which on the issue of statelessness was on the claimants throughout, suddenly switched to the Secretary of State in relation to the note verbale. In relation to the issue of statelessness it would only be if the court or the SIAC was in genuine doubt as to whether deprivation of citizenship would lead to statelessness that the conclusion would be that the claimant’s case failed, applying the burden of proof, which was on the claimant. Such cases would inevitably be rare because usually (as in the present case) there would be evidence of the relevant law and the court or the SIAC would simply decide the case on the evidence. Accordingly, the burden of proof on the issue of statelessness was on the claimants throughout and the SIAC had erred in law in holding otherwise (paras 58, 59, 67, 68–70, 74, 75, 76).
Neil Sheldon QC and James Stansfeld (instructed by the Treasury Solicitor) for the Secretary of State.
Hugh Southey QC and Alasdair Mackenzie (instructed by Duncan Lewis Solicitors) for the claimants.