QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R ( Hicks)
|- and -
|Secretary of State for the Home Department
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Philip Sales & Tim Eicke (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice COLLINS:
"(1) A person is entitled to be registered as a British Citizen if –
(a) he applies for registration under this section, and
(b) he satisfies each of the following conditions.
(2) The first condition is that the applicant was born after 7 February 1961 and before 1st January 1983.
(3) The second condition is that the applicant would at some time before 1st January 1983 [when the 1981 Act came into force] have become a citizen of the United Kingdom and Colonies by virtue of Section 5 of the [1948 Act] if that section had provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father.
(4) The third condition is that immediately before 1st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971 had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above. "
"Further, there is no absolute guarantee that an application under this provision will be granted. Notwithstanding that registration as a British Citizen under s.4C is expressed in terms of an entitlement where the conditions in subsections (2) – (4) are satisfied, we consider that it does not confer an absolute entitlement in all cases. The decision in R v National Insurance Commissioner ex p Connor  1 All ER 769; R v Secretary of State for the Home Department ex p Puttick  1 All ER 776 and R v Registrar General ex p Smith  2 All ER 88 establish that statutory duties which are in terms absolute may nevertheless be subject to implied limitations based on principles of public policy. Consideration is being given as to whether such a limitation might apply in the present case."
"[The discussions between British and United States government lawyers and officials] have involved many complex issues of law and security, which both governments have had to consider carefully. Although the discussions have made significant progress, the view of the Attorney General was that the Military Commissions as presently constituted would not provide the process which we would afford British Nationals."
On 11 January 2005, following the agreement of the U.S. government to return the four remaining British nationals, the Attorney General made a statement to the House of Lords. In the course of dealing with points raised following his statement, he said:-
"Throughout this process the Government have sought to meet the twin objectives of protecting the United Kingdom and its citizens from international terrorism while playing their role on behalf of British citizens detained abroad, and indeed our commitment to the rule of law and the principles that it contains. Some might say that it is the challenge of democracies today to meet the very important objectives of protecting citizens against potentially the most obvious outrages while at the same time defending the values that the Government continue to hold dear."
12. My attention has been drawn to a report of the independent legal observer for the Law Council of Australia, Lex Lasry Q.C. . He stated in September 2004 that he believed that a fair trial was virtually impossible for specific reasons, including the width of the charges, the lack of any proper appeal process, the absence of rules of evidence and the lack of independence of the Commission. Thus a miscarriage of justice was likely to occur. In R(Abbasi) v Secretary of State for the Home Department  UKHRR 76 the Court of Appeal expressed serious concerns about the process of detention at Guantanamo Bay, concluding that "in apparent contravention of fundamental principles recognised by both [the British and the U.S.] jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a 'legal black-hole'. (Paragraph 64). In paragraph 107, the court stated:-
"We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the U.S.A. has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or Tribunal."
The Military Commission quite obviously does not provide the missing remedy and in any event it is itself an entirely unsatisfactory and potentially unjust means of trying and possibly ordering the very lengthy imprisonment of the claimant. Since Hamdan v Rumsfeld is now to be considered by the U.S. Supreme Court, it may be that a trial before the Military Commission will be prohibited and any continued detention may be rendered unlawful. That, however, is at present a matter of speculation.
"(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of –
(a) the United Kingdom, or
(b) a British overseas territory
(3) The Secretary of State may by order deprive a person of citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of –
(b) false representation, or
(c) concealment of material fact.
(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless."
Section 40A conferred a right of appeal to an adjudicator (since 5 April 2005 to the Asylum and Immigration Tribunal) or, if the Secretary of State certified that the decision was taken wholly or partly in reliance on information which should not be made public, to the Special Immigration Appeals Commission (s.40A(2) of the 1981 Act and s.4(2) of the 2002 Act). The appeal is against the notice that has to be served on the person affected informing him that the Secretary of State has decided to make an order (s.40A(1)) and the effect of giving notice of appeal was that no order of deprivation could be made until the final determination of any appeal (s.40A(6)).
"In exercising a power under Section 40 of the [1981 Act] after the commencement [of the substitution of s.40 in the 1981 Act] the Secretary of State may have regard to anything which –
(a) occurred before commencement, and
(b) he could have relied on (whether on its own or with other matters) in making an order under section 40 before commencement."
Thus it is necessary to refer to s.40 of the 1981 Act as originally enacted to see what matters could have been relied on to justify deprivation. Section 40(1) dealt with the obtaining of registration or a certificate by fraud, false representation or concealment of a material fact, provisions which are now in s.40(3) of the substituted section. The relevant provisions for the purposes of s.4(4)(b) of the 2002 Act were contained in s.40(3) which read:-
"Subject to the provisions of this section, the Secretary of State may by order deprive any British citizen to whom this subsection applies of his British citizenship if the Secretary of State is satisfied that that citizen –
(a) has shown himself by act or speech to be disloyal or disaffected towards Her Majesty; or
(b) has, during any war in which Her Majesty was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war, or
(c) has, within the period of five years from the relevant date, been sentenced in any country to imprisonment for a term of not less than twelve months."
The 'relevant date' is the date of registration or the grant of a certificate of naturalisation (s.40(4)). Subsection (5) provides:-
"The Secretary of State –
(a) shall not deprive a person of British citizenship under this section unless he is satisfied that it is not conducive to the public good that that person should continue to be a British citizen; and
(b) shall not deprive a person of British citizenship under subsection (3) on the ground mentioned in paragraph (c) of that subsection if it appears to him that that person would thereupon become stateless."
"(1) Where the Secretary of State is satisfied that a certificate of naturalisation granted by him has been obtained by false representation or fraud, or by concealment of material circumstances, or that the person to whom the certificate is granted has shown himself by act or speech to be disaffected or disloyal to His Majesty, the Secretary of State shall by order revoke the certificate.
(2) Without prejudice to the foregoing provisions the Secretary of State shall by order revoke a certificate of naturalisation granted by him in any case in which he is satisfied that the person to whom the certificate was granted either –
(a) has during any war in which His Majesty is engaged unlawfully traded or communicated with the enemy or with the subject of an enemy state, or been engaged in or associated with any business which is to his knowledge carried on in such manner as to assist the enemy in such war; or
(b) has within five years of the date of the grant of the certificate been sentenced by any court in His Majesty's dominions to imprisonment for a term of not less than twelve months, or to a term of penal servitude, or to a fine of not less than one hundred pounds; or
(c) was not of good character at the date of the grant of the certificate; or
(d) has since the date of the grant of the certificate been for a period of not less than seven years ordinarily resident out of His Majesty's dominions otherwise than as a representative of a British subject, firm, or company carrying on business, or an institution established, in His Majesty's dominions, or in the service of the Crown, and has not maintained substantial connection with Her Majesty's dominions; or
(e) remains according to the law of a state at war with His Majesty a subject of that state;
And that (in any case) the continuance of the certificate is not conducive to the public good."
The date of the Act is significant in relation to s.7(2)(a), the predecessor of s.40(3)(b). Section 20 of the British Nationality Act 1948, so far as material, is in identical terms to s.40 of the 1981 Act as originally enacted, save that it contains no bar to deprivation on the ground that it would render the person deprived stateless.
"A person who has acquired British citizenship by registration or certificate of naturalisation can … be deprived of his citizenship as a result of conduct that led to the grant of registration or naturalisation, or because of certain conduct thereafter. Subsequent conduct is dealt with in section 40(3) and consists of (a) disloyalty or disaffection to the Queen, (b) trading or communicating with the enemy in time of war or (c) imprisonment for twelve months or more within five years of the date when the person became a British citizen. We are not concerned with this subsection."
This view, which was not dissented from by the other members of the court, is entitled to be accorded weight even though no argument was deployed. I was also referred to Geok v Minister of the Interior  1 WLR 554 which concerned a provision of the Constitution of Malaysia enabling the Federal Government to deprive a person of his citizenship 'if satisfied that he has shown himself by act or speech to be disloyal or disaffected towards the Federation'. The allegations against the appellant were based on what he had said and done after August 1957, when he was treated as a citizen by registration under the Constitution. He had become a citizen of the Federation of Malaya in 1951. All this case shows is that it was clearly the view of the authorities in Malaysia that the provision in question only applied to acts done or speeches made after registration. It is also to be noted that the Government has in its latest Bill dealing with Nationality and Immigration included a provision that reads:-
"The Secretary of State shall not grant an application for registration as a citizen of any description or as a British subject under a provision listed in subsection (2) unless satisfied that the person is of good character."
Applications under s.4C of the 1981 Act are included.
"1. Evilly affected: estranged in affection; almost always spec. Unfriendly to the government, disloyal."
It is easy to imagine arguments that could be raised that a statement which expressed strong hostility to the United Kingdom and its Government did not disclose disloyalty. Disaffection is a wider term and so there is no need for it to have to extend to a time before citizenship was acquired. Furthermore, it clearly has a meaning akin to disloyalty and so is more appropriately used to cover the actions or words of a citizen who owes allegiance.
"I am not satisfied that you are genuinely seeking entry only for this limited period."
was sufficient compliance with the duty to give reasons for the decision imposed by the relevant Regulations. Sir John Donaldson, M.R. at p. 483d said:-
"The answer [to the question why did the person concerned take that decision or action] provides the reasons which have to be stated. No doubt those reasons, if rational, will be based upon a process of reasoning applied to evidence and, to this extent, may be described as a conclusion from that evidence. But this does not prevent that conclusion being the reason for the decision or action which is appealable and it is for this reason that the registrations call. In the instant appeal, the immigration officer, by specifying that she was not satisfied that the applicant was genuinely seeking entry for the limited period of one week, but only told the applicant why she was refusing him leave to enter, but also told him, by implication, that he had satisfied her on all other matters upon which he had to satisfy in accordance with [the Rules]."
"… the matters which mean [the Secretary of State] is minded to reach the conclusion that your client has done things seriously prejudicial to the vital interests of the U.K. include the following:-
1. Your client has received extensive terrorist training in Pakistan and Afghanistan including training at an Al-Qaeda camp in Afghanistan
2. Your client has trained with known Islamic extremists in this camp."
MR JUSTICE COLLINS: There are a few typographical errors that I have spotted. I think they have been corrected on those that have been handed down this morning. At paragraph 11 the second line, the "two" at the beginning should be deleted and the "of" towards the end should be deleted. At paragraph 16 at the bottom of the page the very last line in the quotation should be "deprive" and not "deprives". Paragraph 19, right at the end of the paragraph, after 1948 "is" should be deleted and at the end of the line it should be deleted. So it reads "Section 20 of the British Nationality Act 1948, so far as material, is in identical terms". Finally at, paragraph 22 in the middle after the word Schedule 1 "of" should be "to". It should be "Schedule 1 to the Act" and not "Schedule 1 of the Act". That is perhaps a slightly purist corretion. Otherwise I have not spotted any and I am grateful to both of you for pointing out others.
However, for the reasons that I have given in the judgment which has been handed down, the claim is allowed and the result is that, in my judgment, there is no basis upon which the Secretary of State can refuse to register Mr Hicks as a British citizen.
MR FORDHAM: We are very grateful. Can I tell you what is common stand, as I understand it. First, the claim succeeds and I should have my costs in the entirety. I also need a public funding assessment, please.
MR JUSTICE COLLINS: Mr Eicke, do you submit that you should not pay costs? I imagine you accept that.
MR EICKE: No, I cannot resist that.
MR JUSTICE COLLINS: Costs, public funding and detailed assessment, if not agreed. Those must follow.
MR FORDHAM: Secondly, it is common ground that your Lordship should give a declaration, please.
MR JUSTICE COLLINS: Have you indicated the precise wording of the declaration?
MR FORDHAM: I have handed something up at the end of the hearing. It can be done in fairly crisp form. Can I suggest this? The declaration that the defendant, for the reasons set out in the judgment, has no power to withhold or deprive citizenship. I do not know if we need to refer to the relevant sections? I understand there is no difficulty with a declaration.
MR JUSTICE COLLINS: I would not imagine so. Mr Eike, that sounds like a declaration. I do not even think we need add in "for the reasons given in the judgment." The declaration would simply be that the defendant has no power to withhold or deprive the claimant of British citizenship.
MR EICKE: Yes, in principle there is no difficulty with that. The one that the judgment left clearly open is the question of how to do it and the need for on oath and pledge and the practicalities, in that sense.
MR JUSTICE COLLINS: That is the mechanics rather than the principle, is it not?
MR EICKE: Yes.
MR FORDHAM: In relation to that it is helpful to have paragraphs 37 and 38 of the judgment in mind. This is the first area in which we do need to make some brief submissions. At the end of paragraph 37 your Lordship has said "and so he must be registered". I am going to invite your Lordship to make a mandatory order. It is CPR 142(a) (?) requiring that the defendant forthwith effect the registration and the only rule that has just been indicated is as to mechanics. I am not asking it be done one way or the other: either dispensation or conducting the oath. That is the only rule described in paragraph 38. What there is no rule for is a refusal to register. That would be contrary.
MR JUSTICE COLLINS: No, but he cannot be registered until the oath and pledge has been given, or the Secretary of State has made an order dispensing with it. In those cicustances I cannot make a mandatory order to register can I because it must be subject to the means of so doing. What the Secretary of State is going to have to do is surely to make arrangements, or to seek to make arrangements, with the American authorities to enable some representative of Her Majesty's government to administer the necessary oath and pledge.
MR FORDHAM: If the American authorities are unwilling to permit that (at the moment I see no reason why they should be unwilling, but who knows) then the Secretary of State is going to have to consider what the next step should be. On the face of it, it should be to use his powers to defer the taking of the pledge and oath, or to dispense with it.
As your Lordship said in the judgment, he would have done when meeting his interest. The point is the Secretary of State can point to this judgment and say 'I have no power to decline to register and that is what causes hell. I have a judgment which says--
MR JUSTICE COLLINS: Why do you need a mandatory order? Surely the declaration gives you what you want.
MR FORDHAM: It is not going to be suggested, or being suggested I do not think. I can see there may be a difficulty with the word "forthwith" because for the court to say you must do something immediately where there are some mechanics to be involved is one thing. What there is not, in my submission, is any doubt on your Lordship's judgment as to whether one way or the other there needs to be a registration.
MR JUSTICE COLLINS: That is absolutely right. I do not think it is necessary or desirable to make a mandatory order. The judgment speaks for itself. There are problems in making a mandatory order for the reasons I have indicated.
MR FORDHAM: If the Secretary of State is saying that he will register, subject to the mechanics, and that there is need for a mandatory order.
MR JUSTICE COLLINS: He must in accordance with the judgment. If he does not and drags his heals then you can come back to the court.
MR FORDHAM: We are very grateful. Our concern is, as you appreciate, that he wishes to establish, as we have, that he must.
MR JUSTICE COLLINS: I thought that was fairly clear in terms of the judgment.
MR FORDHAM: If that is right we would respectfully say that if there is no difficulty with an order that says he must, but if he is saying that he acknowledges he must, then my Lord neither way does it matter. The Secretary of State accepts on this judgment that he must register my client --
MR JUSTICE COLLINS: I thought I made that fairly clear.
MR EICKE: We would respectfully endorse what your Lordship said about the need for a mandatory order. The Secretary of State accepted before your Lordship at the hearing the main components, subject to the two findings your Lordship made, but there are practical difficulties which your Lordship deliberately left open for the Secretary of State to deal with.
MR JUSTICE COLLINS: That is why I think a mandatory order would be inappropriate. Then one would get into arguments about when, how etc. The judgment speaks for itself and I have said, and I think it must be clear, that in saying there is no obstacle to registration and since he fulfils the necessary conditions he must be registered. Exactly when and how will depend upon sorting the matter out in the way that I have indicated, but I equally must make clear that it must be done as quickly as possible. That is obvious.
MR FORDHAM: We are very grateful. We are content with that. Would you give me liberty to apply? One would not want to be in a position if something does crop up and even if it is delay, to be in the position to have to start the proceedings all over again.
MR JUSTICE COLLINS: I think unusually I will leave a liberty to apply open, assuming I have power to do so.
MR FORDHAM: My Lord, in my submission you do. If that is the case whether there is an issue your Lordship has dealt with it by making clear what is to happen and has to happen as soon as possible. None of us wishes to be back before your Lordship on the point. Then I believe my learned friend has an application.
MR JUSTICE COLLINS: Do you want leave to appeal?
MR EICKE: Yes, we seek leave to appeal on the basis your Lordship found not on the points that are case specific but on the broader points.
MR JUSTICE COLLINS: Mr Fordham, what do you have to say about?
MR FORDHAM: Your Lordship will appreciate what matters to us and to our client is that there is going to be registration and it is going to be as soon as possible. That will mean the Foreign Office are waiting. We have a letter in the bundle. Until there is registration we will not move into action. We will then be looking at what your Lordship said at the end of the judgment and then we hope, and expect, to be taking the appropriate steps.
In relation to the point of principle, what I say is simply this: it is a matter for the Secretary of State if he wishes to take the statutory construction point further. I will suggest that your Lordship has reached a very clear view where all the indications were one way, as you said. There is no ambiguity in the statute. In those circumstances the appropriate course will be for the Secretary of State on reflection, if he still wants to take the point of principle further, to move to the Court of Appeal. That is my submission.
MR EICKE: My Lord, we would respectfully say this is an appropriate case for permission on the basis that the urgency has gone out of the case, as your Lordship noted at the outset of the judgment. This is an important point of principle which impacts not only on this claimant but on the whole operation of section 40 in relation to a large numbers of (inaudible) speediest way of resolving this is for your Lordship to give permission and therefore for the matter to proceed to the Court of Appeal.
MR JUSTICE COLLINS: If you wish to take it.
MR EICKE: Even that process is going to be speeded up by granting the permission and allowing the Secretary of State to make that submission rather than, I think, 14 days including Christmas, to seek to move to the Court of Appeal and thereby--
MR JUSTICE COLLINS: You have had since Friday to consider. Yes, Mr Fordham, I can see that it is, although my view has been clear. The fact that I have formed a clear view does not mean that I have necessarily formed a correct view. I think I have. I would not have formed it otherwise. The Court of Appeal has been known to disagree with me, even though I thought I was right. It is obviously an important point for the Secretary of State and therefore I think it is appropriate to grant leave to appeal. What about the order? What I am inclined to do, Mr Eicke, is to require you , if you want to pursue the matter, to do it within a short time. I would be prepared to put a stay on my order but for no more than seven days at the moment. So if you want to take the matter to appeal you will have to go to the Court of Appeal before the end of the term to get a stay from them.
MR FORDHAM: Can I address you on that? This is very important. My learned friend has been clear that what he is contemplating is an appeal on the point of principle on the statutory construction, should he be so advised. He has made crystal clear that it is the intention to register and to do so as soon as possible. He has made no application for any stay and he did not resist the remedy.
MR JUSTICE COLLINS: We have not got to the question of the stay.
MR EICKE: I have not got to making the application for a stay.
MR JUSTICE COLLINS: Mr Fordham, sorry to interrupt you. You have made quite a good point. I would not have given you leave to appeal on the Puttick point. I think that is hopelessly unarguable. Indeed, Mr Sales did not really put any great faith in it. That being so you are going to have to register, but the only question is whether you are able to deprive in parallel. That is the only issue.
MR EICKE: In relation to parallel deprivation your Lordship has found in the judgment--
MR JUSTICE COLLINS: What I am getting at is that means that you must take all the necessary steps to tee up registration (if I may put it that way). Therefore, what I would require you to do (and I do not think it is necessary, in those circumstances, to put any stay) is to take steps immediately to try to sort out the situation on the assumption that you are going to have to register fully rather than in parallel. Because I recognise that it will take a time, I hope not very long, to sort out the mechanics of registration. That being so, you can have the 14 days, which will take you to what?
MR EICKE: Fourteen days to 27th December.
MR JUSTICE COLLINS: I know but we do not count Christmas.
MR EICKE: From recollection I do not have the White Book here.
MR JUSTICE COLLINS: Actually we do: anything beyond five days, although they tried to change that. Some crazy idea from the Rules Committee that even for five days they did not think of Christmas. It was a ridiculous idea.
MR FORDHAM: I, for my part, and those who instruct me and my client, need to be very clear about what is being said because until this moment it was clear that what was being said was that the declaration order is made, there was no need for a mandatory order because it would be done and it would be done as soon as possible.
MR JUSTICE COLLINS: That is subject to appeal.
MR FORDHAM: If what is now being said is that the intention is to treat your Lordship's judgment as suspendable and invite your Lordship to give us suspension, then that is very different. The only concern that is being raised in relation to that was a concern about statelessness and about renunciation. In the defence your Lordship will recall in the grounds of defence a solution was put forward by the Secretary of State to that concern. He said that there should be a condition so that you do not hold up the registration, but you make sure that if at the end of the day, when all the steps have been taken, and in this case that involves taking those steps that the British Government takes in relation to British citizens when they are held in an illegal black hole, the Secretary of State were to succeed somewhere else on the statute and say 'You cannot keep your citizenship, if you want to appeal you go through SIAC' and so on, the only thing that stands in the way is the renunciation.
What is put forward to deal with that is, if necessary, a condition that an undertaking be given by the claimant that we would not renounce. It is important to know where we stand.
MR JUSTICE COLLINS: It is not as simple as that. I do not know whether anyone has researched the Australian position. I believe I am right in saying, I think, that Australians do not allow citizenship of another country. You have to be a citizenship of Australian and nothing else. Therefore there is a requirement of Australian law that you renounce another citizenship. I may be wrong about that. There are countries which do not allow dual nationality. Whether Australia is one, I am not sure.
MR EICKE: I have no detailed instructions. It would be second guessing.
MR FORDHAM: We do not believe that is the position. He has an Australian lawyer.
MR JUSTICE COLLINS: I am simply going on what I have been told. I have not checked it. It may be wrong.
MR FORDHAM: We appreciate the point about statelessness and in the defence put forward was the solution that on any undertaking by the claimant--
MR JUSTICE COLLINS: Mr Fordham, it would be very surprising if the arrangements could be made as quickly as before Christmas. I appreciate that it should happen sooner rather than later, but I have to recognise that they may want to appeal. They may want to ask the Court of Appeal to preserve the position. That is a matter for them and not for me. All that I am concerned to ensure is that they do not sit back and fail to take the necessary steps in the meantime. I think they should do that.
MR FORDHAM: There are three things for your Lordship: one is the position to appeal and whether should it come from you or the Court of Appeal. The second is: are you giving a stay or are you declining the stay. The third is what do you say about timing? They go together. Now we are being told this has not been said and I had not appreciated it. I am pleased you flushed it out. It may be the intention of the British Government not to register but to wait and get this matter on the stay.
MR JUSTICE COLLINS: That is a matter, in my view, they would have to go to the Court of Appeal to achieve.
MR FORDHAM: I ask you to decline the stay. If however it is the position that that is what the Government wants to do, then all the more reason why they should go speedily to the Court of Appeal who can deal with the whole thing.
MR JUSTICE COLLINS: I think that is probably the sensible way.
MR FORDHAM: Permission to appeal, any stay and they can do it. They may wish to role it up the way your Lordship did. You dealt with the permission and the substantive and you dealt with it in just over a day.
MR JUSTICE COLLINS: I am inclined to think that is probably the right course. I am inclined, at the moment, to give you leave to appeal, as I have indicated, but not to impose any stay which means that you have to get on with making the arrangements. If you want a stay you will have to go to the Court of Appeal and persuade them to make any order that they consider appropriate.
MR FORDHAM: We would respectfully submit that the appropriate order would be the one you indicated earlier: to give us at least a short stay to the Court of Appeal on the basis that since your Lordship's hearing the Secretary of State has moved on and provided further reasons. There is no suggestion, as far as I can work out, that the Secretary of State has been sitting back.
MR JUSTICE COLLINS: All he needs to do is to make the necessary arrangements. He can justify not doing anything immediately because it will take a little time. When I say not doing anything I mean not actually registering immediately. He will have to take the necessary steps to sort out with the authorities when he can register. If it is necessary to get any stay then in your view you will have to apply to the Court of Appeal. It is almost certainly going to be unnecessary to do that before Christmas, but if it is so be it.
As I say, the point frankly is fairly a straightforward one. It is a point of construction. If you think I am wrong then it should not take very long to get advice to that effect and to lodge papers with the Court of Appeal. You can do that before the end of the term. If you think it is necessary to get a stay of any sort then again you can do that before the end of the term if you think it is that important.
MR EICKE: I think one of the concerns of this side at the moment is obviously your Lordship, for understandable reasons, has armed the judgment with liberty to apply and would not want to avoid a ping-pong--
MR JUSTICE COLLINS: If they tried to apply prematurely they will be sent away with a flea in their ear and probably some costs.
MR FORDHAM: We are very grateful. The Secretary of State is faced with a choice. If we wants to deal with this as a point of principle the appeal can take its course in the usual way. What it will not do is hold up registration for my client. If he chooses to go another way and say that he wishes, notwithstanding your judgment, to treat your judgment as suspended, he will need to move very quickly to the Court of Appeal and get a court order from them suspending judgment, otherwise we get our registration.
MR JUSTICE COLLINS: He starts taking the necessary moves and that is all.
MR EICKE: I should make clear there is no suggestion of not registering. The point your Lordship pointed out is a parallel registration point.
MR JUSTICE COLLINS: It may be that if you do decide to appeal you can negotiate with the claimant's solicitors in order to get an undertaking, of some sort, which may be the answer, ie he has registered but he gives an undertaking not to renounce his Australian citizenship, for the time being. I do not know whether that is possible. That again is a possibility, which it may be sensible to explore.
MR EICKE: I am grateful I am sure that is one of the options.