England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th December 2005

Mr Justice COLLINS:

1. The claimant is an Australian citizen who is being held by the authorities of the United States of America at Guantanamo Bay. It is alleged that he has given active support to terrorists in that he has been involved with Al-Qaeda, has been guilty of attempted murder by fighting against American and other forces and has aided enemies of the USA, namely Al-Qaeda and the Taliban. He is due to be tried by a Military Commission. It was believed when this claim was instituted that preliminary hearings were due to take place on 18 November 2005, but on 14 November a District Judge of the District of Columbia ordered that there be a stay of the proceedings of the Military Commission pending the decision of the U.S. Supreme Court in Hamdan v Rumsfield, which involves a challenge to the lawfulness of the actions of the State against those at present held at Guantanamo Bay. Since the Supreme Court will not give judgment until some time next year, the immediate urgency of this claim has fallen away. Nonetheless, the claimant is held in what are no doubt far from pleasant conditions and it is desirable that this claim is dealt with as speedily as possible.
2. This claim comes before this court because the claimant is eligible to be registered as a British citizen. He only discovered this a short time ago. He claims that he should be registered and that he should then be entitled to assistance from consular officials which should lead to him being treated in the same way as those British citizens who were being held at Guantanamo Bay. They have been released by the American authorities to the custody of the British and returned to the United Kingdom. No positive action in the form of prosecution or deprivation of their citizenship has been taken against them, although the allegations against some of them were very similar to those levelled against the claimant.
3. In view of the apparent urgency, I directed that the case should be listed as a permission hearing with the substantive hearing to follow if permission were granted. At the outset, I indicated to Mr Sales that I thought it was appropriate to grant permission. He did not demur (although he did not accept that there was an arguable case) and so I granted permission and dispensed with all subsequent formalities so that the hearing was of the substantive claim.
4. The defendant accepts that the claimant meets the conditions which entitle him to be registered as a British citizen but asserts that he can refuse to register him on the ground of public policy. Alternatively, it is submitted that, if he must be registered, the defendant can immediately make an order which deprives him of that citizenship, leaving it open to him to appeal against that order. The defendant can, it is said, deprive him of his citizenship because of his involvement with Al-Qaeda and his terrorist activities against the United Kingdom.
5. On behalf of the claimant, it is submitted that as a matter of law and on the true construction of the relevant statutory provisions it would not be open to the defendant to deprive him of his citizenship. Further, it is submitted that the defendant has not treated the claimant fairly in that he has given him no proper opportunity either to know what is alleged against him or to answer such allegations and is proposing to treat him in a manner which discriminates against him and is inconsistent with the treatment of the British citizens who have been released from Guantanamo Bay and have not been deprived of their citizenship.
6. The claimant was born on 7 August 1975 in Adelaide. His mother was born in the United Kingdom. She emigrated to Australia with her family while still a child. If his father had been born in the United Kingdom and so had been a Citizen of the United Kingdom and Colonies by virtue of s.1 of the British Nationality Act 1948, the claimant would have been a Citizen of the United Kingdom and Colonies by descent pursuant to s.5 of the 1948 Act. By 2002 it was appreciated that this amounted to discrimination on the ground of sex and so a new section 4C was inserted into the British Nationality Act 1981 by s.13(1) of the Nationality, Immigration and Asylum Act 2002. Section 4C provides:-

"(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 1^st January 1983.

(3) The second condition is that the applicant would at some time before 1^st 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 1^st 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. "

7. It is, as I have said, now accepted that the claimant meets all three conditions. He made his application for registration on 16 September 2005 as soon as he appreciated that he qualified for registration under s.4C of the 1981 Act. Letters were sent to the defendant asking for a speedy decision because of the imminence (as was then believed) of the commencement of proceedings before the military tribunal. On 12 October 2005 a reply was received from the Home Office. This pointed out that the matter would be dealt with 'as soon as is reasonably practicable in the circumstances of his case' and that on average the processing time for such applications was about 6 weeks. The letter continued:-

"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 [1981] 1 All ER 769; R v Secretary of State for the Home Department ex p Puttick [1981] 1 All ER 776 and R v Registrar General ex p Smith [1991] 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."

8. The final position taken by the defendant following further correspondence was that he would grant registration, since he accepted that the conditions s.4C were met, but would immediately or, as it was put before me, in parallel make an order depriving the claimant of the citizenship which he had just acquired. In the alternative, if that was regarded as impossible, he would, in reliance on the cases referred to in the letter of 12 October 2005 which I have cited in paragraph 7 of this judgment, refuse to register the claimant on public policy grounds.
9. The claimant was seized in Afghanistan by Northern Alliance forces in December 2001. Since January 2002 he has been detained at Guantanamo Bay. He alleges that he has been seriously ill-treated there and that he was kept in solitary confinement between July 2003 and November 2004. On 10 June 2004, following the decision of the President of the United States of America that he should be brought before a military commission, he has been charged with the three offences to which I have already referred. Similar charges were faced by two of the nine British citizens who, following negotiations with and representations to the U.S. authorities have been returned to the United Kingdom. The charges give some particulars of what is alleged against the claimant. Broadly speaking, it is said that he attended Al-Qaeda training camps in Afghanistan in early 2001 and, having spoken to Usama Bin Laden, was responsible for translating the training manuals from Arabic into English. In about June 2001, following a recommendation from the military commander of Al-Qaeda, he participated in urban tactics training which included surveillance of and the submission of reports on various targets in Kabul, including the US and British embassies. After 9/11, he was deputed to fight with a group of Al-Qaeda fighters near Kandahar airport. What evidence is available to support these allegations is unknown and the claimant denies that he was ever involved in any criminal or terrorist activities.
10. The Australian government is not prepared to take any steps to prevent the claimant being detained at Guantanamo Bay or being tried by a Military Commission since it has said that it believed the system to be fair after representations made by it about the process had been addressed by the U.S. government. It has accepted that the claimant could not be prosecuted in Australia for any offence under Australian law.
11. The British Government has taken a somewhat different view. It has negotiated the return of British citizens. In announcing the agreement to return five of the nine, the Foreign Secretary made a statement to the House of Commons on 24 February 2004 in which he said:-

"[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 [2003] 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.

12. It is clear that English law regards the detention and proposed trial of the claimant to be contrary to the rule of law. It is equally clear from its statements and actions that the Government is of the same opinion. This is why it has negotiated the release of the nine British subjects. None of them has been charged with any offence in this country. At least three of them had dual nationality, but no steps have been taken to deprive any of them of their British nationality.
13. The circumstances in which British nationals can be deprived of their citizenship has been and is being considered in the light of the threat from terrorism which has increased since the destruction of the World Trade Centre on 11 September 2001 and the suicide bombings in London in July 2005. Section 4 of the Nationality, Immigration and Asylum Act 2002 introduced into the British Nationality Act 1981 a new Section 40 which dealt with the power to deprive a British citizen of his citizenship. It applies to all British citizens, subjects and protected persons however they may have that status. Section 40 provides:-

"(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 –

(a) fraud,

(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)).

14. Changes have been made by the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Section 4 of that Act amends section 40A of the 1981 Act by (inter alia) repealing subsections (6) to (8), with effect from 5 April 2005. Thus, although the appeal is in form against the decision to make an order, the order itself can be made even if an appeal is lodged. Thus an appeal is no longer suspensive.
15. It is not necessary to consider the wording of s.40(2) of the 1981 Act since s.4(4) of the 2002 Act makes clear that it is to have a limited retrospective effect. It is, however, clear that the actions alleged against him would, if established, be covered by it. Section 4(4) provides:-

"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."

16. Mr Sales accepts that if s.40(3)(a) only allowed acts done or speeches made after the individual had become a British citizen to be taken into account, he cannot rely on the parallel deprivation. He has a fall back argument based on public policy which he submits entitles the Secretary of State to refuse to register the claimant and I will deal with that in due course. It is clear that the only relevant provision in s.40(3) is that contained in s.40(3)(a) and it is equally clear that registration was not obtained by fraud, false representation or concealment of any material fact so as to make s.40(1) relevant.
17. Mr Fordham drew my attention to observations of Lord Filkin in the House of Lords during consideration of what became s.4 of the 2002 Act. Insofar as he may have been suggesting the effect of s.40(3) of the 1981 Act, his observations do not fall within the ambit of what Pepper v Hart permits the court to consider. Insofar as he was indicating the ambit of s.4 and the new section 40, I do not find his observations sufficiently clear as to amount to an indication of the true construction, there being any ambiguity. But crucially for the reasons I will come to I do not believe there is any ambiguity in s.40(3)(a) which would justify recourse to Hansard. It has not been suggested that there is anything to assist in the debates on the 1981 Act.
18. Some assistance can be found by looking at the history of what became s.40(3). Section 7 of the British Nationality and Status of Aliens Act 1914 entitled the Secretary of State to revoke a certificate of naturalisation obtained by false representation or fraud. This power was extended by s. 1 of the British Nationality and Status of Aliens Act 1918 which was passed on 8 August 1918. The new section 7 of the 1914 Act read:-

"(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.

19. All the grounds for deprivation are consistent with the view that behaviour before acquisition of citizenship is dealt with by fraud, false representation or concealment of material facts and that what is now s.40(3) relates to conduct while the person concerned is a citizen. It is true that the acts which led to imprisonment can have occurred before acquisition, but the relevant ground is based on imprisonment after acquisition. The language of s.40(3)(b) is capable of being read to cover pre-acquisition trading etc with the enemy, but it is equally apt to cover any trading while a citizen whenever it came to light. The change from 'is engaged' in 1918 to 'was engaged' in 1948 is a reflection of the time when each Act was passed.
20. However, whether or not s.40(3)(b) can relate to pre-acquisition conduct is not determinative of the true construction of s.40(3)(a). I recognise that s.40(3)(c) can relate to pre-acquisition conduct in the sense that it can permit deprivation following imprisonment for offences which may have been committed in the past. Incidentally, it does not on its face require that the imprisonment should be the result of a fair hearing before a court rather than a hearing before a Tribunal such as the Commission. No doubt a person against whom s.40(3)(c) is used could on appeal seek to challenge the propriety of imprisonment imposed in a country outside the United Kingdom. But it must be accepted that s.40(3)(c) can have a limited retrospective effect.
21. There is an important distinction between registration and naturalisation. Registration does not have the preconditions which have to be met in order to obtain a certificate of naturalisation. All that is needed under s.4C is that the three conditions set out in the section are met. This is because if the person's father had been born in the United Kingdom he would have been entitled to citizenship by descent. The amendment in the 2002 Act was designed to overturn the discriminatory feature of previous legislation and so it is not surprising that Parliament did not think it necessary to impose any further conditions. Schedule 1 to the Act sets out those required for naturalisation. They include (Paragraph 1(1)(b)) that the applicant is of good character. Thus deprivation on the basis of fraud, false representations or concealment of material facts has a much wider scope in naturalisation cases and it is plain that conduct such as is alleged against the claimant could justify a refusal to issue a certificate or, if it came to light after naturalisation, deprivation. But it cannot, within the terms of s.40 justify deprivation on the ground that it was wrongfully obtained. The contrary has not been argued by Mr Sales.
22. Mr Fordham relies on some judicial observations on s.40(3)(a), but concedes that they did not follow any argument on the point at issue here. In R v Secretary of State for the Home Department ex p Ejaz [1994] Q.B. 496, the question was whether the Secretary of State was entitled to treat a woman who had obtained naturalisation as the wife of a British citizen as an illegal entrant on the basis that her husband was not in fact a British citizen. The Court of Appeal gave a negative answer on the ground that the only procedure open to the Secretary of State to avoid the effect of naturalisation was that laid down by s.40 of the 1981 Act. At p.503c, Stuart-Smith LJ said:-

"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 [1964] 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.

23. None of this provides a conclusive answer to the question before me, but it all points in the same direction. Textbooks on Immigration and Nationality also suggest that that is the correct construction, although it is fair to say that they do not deal directly with the point. I must therefore now consider the language of s.40(3)(a) to see whether it should be construed as Mr Sales suggests.
24. Disloyalty, as Mr Sales concedes, must relate to a time when the person concerned owed some allegiance. While the paragraph refers to Her Majesty, it relates to Her Majesty in her capacity as representing the Government of the United Kingdom. Thus the fact that she is titular head of state of Australia is nothing to the point. Nor does the provision refer to disloyalty to or disaffection towards Her Majesty personally. Mr Sales submits that 'disaffected towards' is wider than 'disloyal' and so is not limited to a time when the person concerned is a British citizen. The word merely connotes hostility. He suggests that it would be remarkable if someone who had expressed a settled determination to kill Her Majesty should nonetheless be safe from deprivation once that determination was discovered. But he has to accept that there would be no power to deprive a hardened criminal of his citizenship obtained by registration if he had expressed an intention to carry on his criminal activities in the United Kingdom or he had obtained citizenship in order to further his criminal aims.
25. The Shorter Oxford English Dictionary (1959 Edition) defines disaffected as follows:-

"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.

26. Parliament could have included a good character condition which would have made clear that pre-acquisition behaviour could be relied on to prevent or to deprive of citizenship. That it did not do so in registration cases strongly suggests that such behaviour could not be relied on either to prevent or to deprive of citizenship. I am satisfied that Mr Fordham is correct and that the defendant would not have been entitled to rely on what the claimant had allegedly done to deprive him of citizenship under s.40(3)(a) and so cannot now rely on it under the substituted s.40.
27. Mr Sales submitted that even if this were the true construction of the statutory provisions registration could be refused on the ground that it would be contrary to public policy to permit someone such as the claimant to be registered. He relied in particular upon R v Secretary of State for the Home Department ex p Puttick [1981] Q.B. 767. The claimant in that case was a German national who had absconded from Germany having been granted bail. She entered this country by means of a false passport and married a British citizen having committed perjury and forgery to satisfy the Registrar General that she had been divorced and there was no impediment to her marriage. The refusal of the Secretary of State to register her as a British citizen on the basis of her marriage was upheld on the basis that the marriage, which was the qualification for citizenship, was obtained by fraud. This contravened the rule of public policy which should prevent a person from benefiting from his criminal behaviour. But, as Mr Fordham pointed out, in Puttick's case the criminal behaviour achieved for the claimant the necessary precondition which entitled her to registration. It is clear in my judgment that the principle is limited to that sort of situation. Since Parliament has not set down any precondition based on good character, it would be wrong to extend public policy to close what is now regarded as an unfortunate gap. The claimant has not done anything wrong in order to establish the necessary conditions to be registered as a British citizen. The argument based on public policy cannot avail the defendant. To be fair, Mr Sales did not press it with any enthusiasm.
28. In the light of my conclusions as to the correct construction of the relevant statutory provisions, the arguments based on fairness, discrimination and lack of consistency become immaterial. I ought, however, to deal with them in case this claim goes further, but I shall do so relatively briefly.
29. Mr Fordham submitted that once the conditions for registration had been met, there was no reason to delay even if the defendant was considering deprivation. One concern of the defendant was that, if the claimant was granted British citizenship, he might (or might be obliged to) renounce his Australian citizenship and so deprivation could not take place since he would then be made stateless. Perhaps somewhat curiously, statelessness was not a bar (save on the ground under s.40(3)(c)) and it only became a bar as a result of the amendments made by the 2002 Act. In addition, an appeal was then suspensive: see s.40A(6) of the 1981 Act. That was changed by the 2004 Act, which repealed s.40A(6). Thus an appeal does not suspend deprivation and the defendant may make the necessary order notwithstanding that an appeal is pending. If the defendant was entitled to seek to deprive the claimant of his citizenship, I see no reason why he should not have decided to register and to order deprivation immediately thereafter. He has power, if he thinks it appropriate because of the special circumstances of a case, to dispense with the obligation to take the required oath and pledge which will normally be a necessary precondition of registration: see 1981 Act s.42(1) and (6).
30. It is only fair that a person in the claimant's position should be told that deprivation is intended – s.40(5) of the 1981 Act requires written notice specifying the reasons for making the order – and should be given an opportunity to make representations against it. This will mean that he must be given a reasonable time to respond and the logistics of doing that when detained as the claimant is must be taken into account. Thus some delay is inevitable and might need to extend beyond the time normally required to check that the applicant for registration meets the statutory conditions. Evidence from Chris Kelly, an assistant director in the Home Office Immigration and Nationality Directorate responsible for British Nationality Policy informs me that in the twelve months to July 2005 the Home Office received some 11,300 applications for registration of which some 4000 were made under section 4C. Thus it is entirely reasonable that some time should be taken, the average being six weeks, in checking and processing them.
31. In Geok v Minister of the Interior (supra) a complaint made was that the particulars provided of the conduct relied on against him were inadequate. The Privy Council rejected that complaint. However, the Malaysian Constitution required that the person affected must be given a notice specifying the ground on which the order was proposed to be made. That led the Privy Council to decide that the notice would be valid even if no particulars were provided, since the ground was that the appellant had shown himself to be disloyal and disaffected towards the Federation of Malaysia. Section 40(5)(b) of the 1981 Act requires that the notice should state the reasons for the order. In R v Secretary of State for the Home Department ex p Swati [1986] 1 W.L.R. 477, the Court of Appeal decided that a notice refusing leave to a visitor to enter which simply gave as the reasons:-

"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]."

32. It is no doubt possible to deploy an interesting argument on the difference between grounds and reasons, but, as Swati shows, in reality there will be little difference in what information is required to be given to the person affected by the decision. Reasons does suggest a little more than grounds in the sense that merely to state that he was disloyal or disaffected towards Her Majesty would not suffice and at least he should be told why. What he has been told in a letter of 9 November 2005 written to the solicitors is:-

"… 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."

33. These reasons are exiguous in the extreme and it is perhaps surprising that the defendant was not prepared at least to adopt (if he believed the allegations made to be true) the slightly fuller particulars given in the charges prepared by the U.S. authorities. As Lord Morris of Borth-y-Gest said at paragraph 565 of the report in Geok, the giving of particulars in a notice whenever it is thought sensible to give them should not be discouraged. But it is not necessary to give detailed and elaborate particulars. In this case, there are security considerations which will mean that some, perhaps many, of the matters relied on will not be able to be disclosed to the claimant but will have to be dealt with by the Special Advocate in any appeal before SIAC. Exiguous though they are, the reasons given are sufficient to comply with the statutory obligation.
34. Mr Fordham further complains that the defendant is not treating the claimant in a manner which is consistent with the approach to the nine British citizens who have been assisted so that they have been released. Those who had dual nationality and who were alleged to have acted in a similar fashion to the claimant have not been the subject of deprivation proceedings. Mr Kelly in his statement seeks to justify this on the grounds that the others all had close links with the United Kingdom, having lived here for most of their lives whereas the claimant had no such links and was seeking to use his adventitious entitlement to registration to obtain an advantage which the country in which he had been born and brought up would not provide. He did, however, receive such help as the Australian Government was prepared to give, including financial assistance for his defence and the making of representations to alleviate the conditions of his detention.
35. In my view, the defendant was entitled in the exercise of his discretion to distinguish between the claimant and the other British citizens. It was a rational exercise of his discretion having regard to the matters referred to by Mr Kelly.
36. Accordingly, if I had been persuaded that the defendant was able to deprive the claimant of his citizenship, I would not have found in the claimant's favour on any of the other grounds upon which he sought to rely. But, for the reasons I have given, I am satisfied that there is no power in law to deprive the claimant of his citizenship and so he must be registered.
37. As I have already noted, s.42(1) of the 1981 Act requires that 'a person of full age shall not be registered under this Act as a British Citizen unless he has made the relevant citizenship oath and pledge specified in Schedule 5 at a citizenship ceremony'. I do not for a moment suggest that the claimant should be relieved of the necessity to make the relevant oath and pledge (although the defendant was prepared to dispense with that requirement when it was in his interest to do so). But there is no definition of what is meant by 'a citizenship ceremony'. The defendant is able to 'modify the effect of' this provision (see s.42(6)(b)) and it will be necessary to arrange for the oath and pledge to be made before some official deputed to receive it. If the US authorities refuse to allow this, the defendant should consider using his powers to dispense with them at least for the time being and permit the claimant to make them at a later time. He would have power to do that under s.42(6)(b).
38. Once he is a British Citizen, he should be entitled to all assistance which can be given to a British citizen. There is no doubt that Her Majesty's Government has a discretion as to what assistance should be given (if any) in a given case. But in my view it would be improper to fail to give assistance which would otherwise have been given simply because the claimant was believed to be involved in terrorism and has not had any previous connection with this country. Once he is a citizen, the considerations relied on by Mr Kelly do not in my view apply. However, I recognise that I have not heard arguments on this aspect and so what I have said in this paragraph should not be taken as more than an indication of my views.
39. I will hear counsel on the precise nature of any relief.
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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.