CASE NOTE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
v E3 AND N3 [2019] EWCA CIV 2020, [2020] 1 WLR 1098
ERIC FRIPP *
TABLE OF CONTENTS
Introduction........................................................................................................... 167
Secretary of State for the Home Department v E3 and N3 ................................... 168
Analysis ................................................................................................................ 169
Conclusion ............................................................................................................ 171
INTRODUCTION
In England and Wales, s 40(2) of the British Nationality Act 1981 (‘BNA 1981’) 1
gives power to the Secretary of State for the Home Department to make an order
to deprive a person of ‘citizenship status’, if satisfied that deprivation is conducive
to the public good. However, s 40(4) provides that the Secretary of State may not
do so if satisfied that the making of such an order would render the affected person
stateless.
The breadth of the administrative power at s 40(2) BNA 1981 means that often
the decisive question is whether s 40(4) prevents the making of a deprivation order.
Despite the apparent simplicity of the question raised by s 40(4), the complexity
of the legal issues arising from it has led to a substantial jurisprudence including
two appeals to the United Kingdom Supreme Court. 2 A recent decision of the
Court of Appeal (Civil Division) (‘CA’), in Secretary of State for the Home
Department v E3 and N3 (‘E3 and N3’) 3 should focus attention on an important
point regarding what has been found to be an initial burden of proof imposed upon
the Secretary of State by s 40(4) BNA 1981.
The general standard of proof in civil proceedings in the UK is the balance of
probabilities, often referred to as the ‘civil standard of proof’ to distinguish it from
the criminal standard of proof beyond reasonable doubt. In R (on the application
of D) v Life Sentence Review Commissioners, the House of Lords held that there
was a single civil standard by which the Court would be satisfied of a fact, if it
considered that on the evidence something was more likely than not. 4
*
1
2
3
4
Eric Fripp is a barrister at Lamb Building, Elm Court, Temple, London EC4Y, and a Senior
Visiting Fellow in the Refugee Law Initiative, School of Advanced Study, University of
London. He is General Editor of The Law and Practice of Expulsion and Exclusion from the
United Kingdom (Hart, Oxford, 2014) and author of Nationality and Statelessness in the
International Law of Refugee Status (Hart, 2016).
(UK) (‘BNA 1981’).
Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62, [2014] 1 AC 253
(‘Al-Jedda’); Pham v Secretary of State for the Home Department [2015] 3 All ER 1015
(‘Pham’).
[2019] EWCA Civ 2020, 1 WLR 1098 (‘E3 and N3’).
See R (on the application of D) v Life Sentence Review Commissioners [2008] UKHL 33,
[2008] NI 292, [23] and the subsequent discussion of Carswell LJ on the debate surrounding
the balance of probabilities.