This piece considers two recent decisions – one by the Court of Appeal (“CA”): D4 v Secretary of State for the Home Department  EWCA Civ 33, and the other by the Supreme Court (“SC”): R (The Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department  UKSC 3 (“PRCBC”). At a general level, the cases raised similar issues: both involved challenges to delegation legislation on grounds that they were ultra vires; both related to citizenship – D4 about its deprivation, PRCBC about its conferral. This piece seeks to draw some threads from the two cases about statutory interpretation and the common law in the context of citizenship.
D4 v Secretary of State for the Home Department  EWCA Civ 33
D4 was deprived of her citizenship pursuant to an order made under s.40 British Nationality Act 1981 (“BNA 1981”). By s.40(5) BNA 1981 the Secretary of State was required to give her written notice of the decision and of her right to appeal the decision. The methods by which such notice may be given were stipulated in British Nationality (General) Regulations 2003. The decision was to be treated as taken by the Secretary of State for the Home Department (“SSHD”). This was made pursuant to s.41(1)(e) BNA 1981 which provided that the SSHD “may make regulations generally” for carrying into effect the Act’s purposes and the giving of notice required under BNA 1981. Regulation 10(4) provided that where the SSHD did not know the individual’s whereabouts, the requirement for written notice would be satisfied when notice was placed on the individual’s file. This was what the SSHD did in D4’s case.
The question for the CA was whether Regulation 10(4) was ultra vires for breach of the s.40(5) BNA 1981 requirement for “written notice”.
Whipple LJ (Baker LJ concurring) reaffirmed the decision of Chamberlain J that it was ultra vires. She first examined the meaning of notice and the related concepts of deemed notice and deemed service (§§38-48) and then examined the purpose of ss.40 and 41 and whether Regulation 10(4) was contrary to that purpose.
Surveying the case law, she reaffirmed the “fundamental and constitutional principle” that individuals have the right to know of a decision before their rights could be adversely affected (Anufrijeva at §36) or that reasonable steps must be taken to do so (Anufrijeva at §43). As set out in Fowler v HMRC, the extent of the fiction of “deemed notice” is a matter of statutory construction and should only be taken as far as necessary to achieve the statutory purpose (Fowler, §27).
Whipple LJ held that the purpose of s.40(5) BNA 1981 was clear. It was that “the person needs to know that a decision has been made; the person is entitled to know the reasons for that decision; and the person is put on notice of their appeal rights.” (§53). The subsection was “at the heart of the legislative scheme” (§60) and its requirement was a fixed parameter of the statutory scheme for citizenship deprivation (§60). She held that s.41’s purpose is “to make provision generally for carrying into effect the purposes of the 1981 Act” (§55). Therefore, the SSHD could in principle make regulations giving citizenship deprivation notices to persons of unknown whereabouts and specify that notice be deemed in certain circumstances (§56). The Master of the Rolls dissented on this, finding that the purpose was to deprive an individual of their citizenship, not to notify them of the deprivation (§75).
However, this did not extend to Regulation 10(4) as there was no possibility, pursuant to that regulation, that the notice would come to the person’s attention. It was, practically speaking, a provision dispensing with notice and thus derogates from the notice requirement contained in s.40(5) (§58) and was contrary to the constitutional principle recognised in Anufrijeva. Absent specific words, Parliament had not legislated contrary to that principle.
R (PRCBC and O (by her litigation friend AO)) v Secretary of State for the Home Department  UKSC 3
PRCBC concerned a challenge to the level of fees charged to children – £1,012 – applying to be registered as British citizens. S.1(4) BNA 1981 provides a right to be registered as a British citizen to someone born in the UK and who has lived in the UK for the first ten years of their life. This right is conditioned by s.41(1) BNA 1981, which requires payment of a fee. S.68(7) of the Immigration Act 2014 empowers the SSHD to set the fee via delegated legislation, by reference only to the matters listed in s.68(9). The relevant fees regulations were the Immigration and Nationality (Fees) Regulations 2018 (SI 2018/330) (“the 2018 Regulations”), which stipulates the fees for a child as £1,012. The fee is fixed at a level at substantial surplus (to administration costs) to fund other aspects of the immigration system.
The two claimants O, a child who could not afford the fee, and PRCBC, a charity, challenged the fees on two grounds: first, that in setting the fee the SS failed to comply with her duty under s.55 Borders and Citizenship and Immigration Act 2009 to have regard to the welfare of children when discharging her immigration functions; and second, that it was ultra vires as it set the fee at a level which was unaffordable to many applicants.
In the High Court and Court of Appeal, the first ground was upheld and the second dismissed. The sole issue before the Supreme Court was the second ground, i.e. whether the 2018 Regulations were ultra vires.
Lord Hodge gives the lead judgment (the rest of the court concurring) dismissing the appeal.
Lord Hodge first acknowledged that there is “no dispute” about British citizenship’s importance (§26). However, he highlighted that the “rights conferred by British citizenship” are statutory rights rather than “common law rights which have been recognised as fundamental or constitutional”. Neither was it argued that Convention rights under the HRA were engaged (§33). Therefore, the absence of common law rights meant that the principle of legality (§33) was not relevant here and the case of UNISON referring to court fees, could not be used by analogy (§36).
Lord Hodge found that the task of the Court was to ascertain the scope of the enabling powers in the Immigration Act 2014. S.68(9) of that Act provided a list of factors the SS could consider when setting fees, but it did not include a criterion of affordability. Of significance was the fact that Parliament did not specify that adjustment must be made to the fees where a child could not afford it. On the contrary, the SS was empowered to make provision for fees, subject only to the negative resolution procedure. For these reasons, the appropriateness of fees was a question of policy for political determination and not one the judges could intervene in (§51).
The common law recognises the “fundamental status” of citizenship (Pham v SSHD at §60, §97). However, this fundamental status and how the courts treated the rights flowing from it differed greatly in the cases of D4 and PRCBC. This difference has important consequences for: first, the principle of legality; and, second, the centrality of access to the courts for common law rights.
(a) the principle of legality
In D4, it was recognised that the removal of a person’s citizenship engages fundamental rights. In contrast, “rights conferred by citizenship” were found simply to be statutory rights in PRCBC. The corollary of this was that, in interpreting the scope of the respective enabling legislation, the principle of legality would have applied in D4 (though not explicitly stated), whilst it did not in PRCBC.
A point to be noted first however is that the Supreme Court’s formulation of the rights engaged in PRCBC as “rights conferred by citizenship” is slightly confusing. On one view, D4 also arguably concerned a “right conferred by citizenship”: that is, the right not to be deprived of citizenship without notice. It may well be that PRCBC is better described as engaging the right to access citizenship (from which other rights then flow), but the Supreme Court’s terminology leaves us in between a rock and a hard place.
In any case, the contrast between D4 and PRCBC has important implications for statutory interpretation involving provisions to do with citizenship. Provisions impinging on (access to the) “rights conferred by citizenship”, using the terminology of the Supreme Court, will be interpreted using ordinary principles of statutory interpretation, whereas similar provisions in respect of citizenship deprivation can be interpreted by reference to the principle of legality. The significance of the principle of legality applying is, as Mark Elliott has described, that “the court is able to carry out the exercise of statutory construction that breathes legal life into common law values that would otherwise remain no more than that”.
(b) common law and access to the courts
The Supreme Court stated that the rights citizenship confers are not fundamental rights as recognised by the common law. However, deprivation of citizenship does engage fundamental rights at common law. This contradistinction can be explained through the judicial tendency to recognise and protect common law rights when viewed through the lens of access to the courts, as Richard Clayton QC has argued. For example, citizenship fees in PRCBC had no bearing on an individual’s access to the courts (or any other fundamental right); while in D4, the notification requirements that gave rise to an appeal right, which provided access to the courts for the individual and thus, it is suggested, was easier to recognise as a fundamental status at common law.
Therefore, despite both cases involving an element of citizenship, the protection offered to this right differed greatly depending on whether you are concerned with acquiring the “significant” (PRCBC, §26) rights of citizenship or the loss thereof. This is curious when considering that both the right to citizenship (s.1(4) BNA 1981) and the right to written notice of the deprivation of citizenship (s.40(5) BNA 1981) emanate from the same statute. This displays the lack of consistency and clarity with which the common law offers rights protection.
Moreover, if citizenship is a “fundamental status” and the rights attached to it are “significant” (PRCBC, §26), limiting its protection to the right of access to the courts, as arguably has occurred in D4, Pham and other cases, is problematic. This is made plain in R (Begum) v Special Immigration Appeals Commission  AC 765, where the Supreme Court held that the appeal against deprivation of citizenship did not necessarily entitle an individual to a “fair and effective appeal” (Begum, §§88-90). This indicates that the notification, which is “at the heart of the legislative scheme”, is the bare minimum required to protect this right, with the Court unwilling to go further absent any express Parliamentary language (Begum, §89).
The two cases above display the fragility of common law protections: the principle of legality will only “breathe life” into the protection of the fundamental status of citizenship if its denial engages the right to access the courts. Another thing that is fragile is whether the Court of Appeal’s judgment in D4 will survive an appeal, given that the SSHD has indicated her intention to seek permission to appeal the decision to the Supreme Court.
Possible appeals aside, another point to note is that the protective exercise of statutory interpretation is subject to the limitation of clear Parliamentary intention; an intention that is forthcoming in Clause 9 of the new Nationality and Borders Bill, which seeks to address the issues that arose in D4. It is yet to be seen how the SSHD will address the failure to take into account the best interests of the child, as established in the High Court and Court of Appeal in PRCBC, as concerns the fees set for citizenship.
When the Supreme Court reaffirmed the fundamental status of citizenship at common law in Pham, it relied upon Blackstone in his Commentaries on the Laws of England, written between 1765–1770. In his treatise, he referred only to the concept of subjects; this would have encompassed a far broader range of persons than citizen does. Indeed, prior to the BNA 1981, the UK’s immigration laws were predominantly concerned with subjects.
In her important book, (B)ordering Britain: Law, Race and Empire, Nadine El Nany tracks this move away from the rights of entry and abode being conferred on subjects to these rights being conferred exclusively on ‘citizens’ tied to the landmasses of Great Britain and Northern Ireland. She argues that the BNA 1981 reinforced the racialisation of British citizenship, given that it was introduced against the backdrop of heightened pressure from the National Front. Further, she highlights that the exclusionary effects of the BNA 1981 would fall primarily on racialised groups. This can be seen in the above cases, PRCBC concerning the child of a Nigerian national and D4 concerning a dual national of both Britain and Pakistan, raising further questions about the protection the common law offers.
Disclaimer: All views expressed in this blog are not necessarily shared by both co-authors.
We are grateful to Michael Gordon, University of Liverpool, and Alison Young, University of Cambridge, for their helpful comments on an earlier draft of this blog. All errors remain that of the authors.
Donnchadh Greene is a barrister at Doughty Street Chambers practising in public law and discrimination particularly in community care law and migrants’ rights
Gabriel Tan is a Public Law caseworker at Wilson Solicitors LLP and author of the Administrative Court Blog (@finishedloading)
(Suggested citation: D. Greene and G. Tan, ‘Statutory Interpretation and Citizenship: D4 v SSHD and PRCBC v SSHD’, U.K. Const. L. Blog (9th February 2022) (available at https://ukconstitutionallaw.org/))