Deprivation of nationality not within scope of EU law

4 July, 2012

G1 v Secretary of State for the Home Department

On 4 July 2012, the Court of Appeal (Laws, Rix and Lewison LJJ) dismissed the appeal by an individual seeking an order that the Secretary of State was required, as a matter of law, to facilitate his return to the UK to exercise is right of appeal against the decision depriving him of his British citizenship.

After the Appellant had voluntarily (and in breach of his bail) left the United Kingdom, the Secretary of State had decided to deprive him of his British citizenship and excluded him from the UK on the basis he was involved in terrorism related activities and had links to Islamic extremists.  The British Nationality Act 1981 provides for a right of appeal against the decision to make a deprivation decision (rather than the deprivation decision itself).  However, by virtue of legislative changes introduced in 2004, the original provision preventing the making of the
(final) deprivation decision while an appeal has not been finally determined or could be brought was repealed and not replaced.

The Appellant sought to challenge (by way of an application for judicial review of the exclusion decision) what he characterised as the absence of an in-country right of appeal.  This challenge was based inter alia on the basis that the failure to provide for an in-country right of appeal constituted a violation of his right to an effective remedy and/or his right not to be discriminated against as guaranteed by EU law. The asserted comparator was a third country national whose leave to remain had been revoked while he was out of the country.  Following the judgment of the Court of Appeal in MK(Tunisia) v Secretary of State [2011] EWCA Civ 333, it was clear that, on its proper construction, section 3D of the 1971 Immigration Act automatically extended that leave for the period during which an appeal could be brought.  No equivalent provision exists in relation to decision concerning deprivation of citizenship.

This was the first time that the Court of Appeal considered in some detail the judgment of the Court of Justice of the European Union in Case C-135/08 Rottmann [2010] ECR I-1449 in which that Court had held that, on the facts of that case, the decision to deprive Mr Rottmann of his German nationality, thereby leading to his loss of citizenship of the Union as provided under the EU Treaties, was required to comply with the EU law principle of proportionality.

In the present case, Laws LJ, giving the leading judgment, however dismissed the appeal on the basis that “the Rottmann decision has to be read and applied with a degree of caution” and that “it cannot . be applied so as to require that in a case such as this the adjudication of a decision to deprive an individual of citizenship must be conducted subject to any rules of law of the European Union”.  After all, “from first to last this is a domestic case” with no actual, attempted or purported exercise of any right conferred by EU law.

Laws LJ also added a further note of caution in relation to reading the judgment in Rottmann to broadly:

“The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution; for they identify the constitution’s participants. If it appeared that the Court of Justice had sought to be the judge of any procedural conditions governing such matters, so that its ruling was to apply in a case with no cross-border element, then in my judgment a question would arise whether the European Communities Act 1972 or any successor statute had conferred any authority on the Court of Justice to exercise such a jurisdiction.” [43]

Tim Eicke QC, leading Rory Dunlop of 39 Essex Street and instructed by the Treasury Solicitor, acted for the Secretary of State in this case.

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