2020 Statelessness & Citizenship Review 2(1) In some public law cases though, the approach to be followed depends upon a statutory formulation rather than a straightforward application of the burden and standard of proof. This is the case as regards deprivation of nationality under s 40 BNA 1981. By s 40(4), the Secretary of State, if ‘satisfied’ that a s 40(2) order ‘would make a person stateless’, cannot go on to make such an order. In AS (Guinea) v Secretary of State for the Home Department, 5 a deportation case in which the appellant claimed to be stateless, the CA confirmed that the standard of proof applicable in determining whether someone would be stateless was the ordinary civil standard. By contrast, in deprivation cases s 40(2) BNA 1981 requires a two-step approach. In Hashi v Secretary of State for the Home Department (‘Hashi’), 6 the weakness of the evidence adduced to support the appellant’s claim was held to be such that the precise approach to standard of proof did not matter. The CA found however that the Secretary of State had to show satisfaction that her order would not make Mr Hashi stateless, and then he had to show that the Secretary of State had been mistaken. 7 This statement of the law was then followed by the Special Immigration Appeals Commission (‘SIAC’) in R3 v Secretary of State for the Home Department. 8 SECRETARY OF STATE FOR THE HOME DEPARTMENT V E3 AND N3 In E3 and N3, the Secretary of State had given notice of decisions under s 40(2) BNA 1981 to two British citizens of Bangladeshi origin. 9 Each entered notice of appeal on grounds including the claim that, if deprived of British citizenship, he would be stateless. 10 The appeals were considered initially in SIAC. 11 It drew on evidence from two experts on Bangladeshi nationality law. 12 In addition, the Secretary of State relied upon a note verbale of the Bangladeshi authorities concerning the nationality laws of Bangladesh. 13 The Commission found the expert evidence ‘sub-optimal’ because both relied on distinct sources on Bangladeshi law that led to different viewpoints. Where the experts disagreed, the Commission preferred the evidence of the appellants’ expert as to the relevant law and practice. 14 The Commission then turned to the note verbale, whose content suggested that the Bangladeshi state’s interpretation of its nationality laws, or application of these in practice, was one by which Bangladeshi nationality arose in the cases. 15 The Commission held that the burden of proof on the subject matter of the note verbale lay with the Secretary of State, and had not been discharged. 16 5 6 7 8 9 10 11 12 13 14 15 16 AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234, [2019] INLR 157, [59]. See also Judith Carter, ‘AS (Guinea) v Secretary of State for the Home Department [2018] EWCA CIV 2234’ (2019) 1(2) Statelessness and Citizenship Review 336, 342. Hashi v Secretary of State for the Home Department [2016] EWCA Civ 1136 (‘Hashi’). ibid [23]–[24]. R3 v Secretary of State for the Home Department [2018] UKSIAC SC/150/2018. E3 and N3 (n 3) [6]. ibid [7]. ibid [1]. ibid [15]. E3 and N3 (n 3) [18]. ibid [22]. ibid [23]. ibid. 168