Secretary of State for the Home Department v E3 and N3 The Secretary of State appealed to the CA. Allowing that appeal and remitting the proceeding back to the Commission for reconsideration, 17 the Court accepted that once the Secretary of State has demonstrated that the deprivation order will not render the individual stateless, the burden of proving that the individual will be rendered stateless is on the individual. 18 The Court held inter alia that the burden of proof was, as described in the Hashi decision, potentially divided into two separate parts. 19 At the first of these the burden lay upon the Secretary of State to demonstrate satisfaction that the order would not make the appellant stateless. Of this stage Longmore LJ had observed in Hashi, ‘That is a comparatively easy burden to discharge and Mr Hashi does not challenge that she was so satisfied’. 20 At the second, the burden moved to the subject of the order to prove error ‘again as described by Longmore LJ in Hashi ‘Mr Hashi is entitled to and does assert that she was wrong to be so satisfied and on that question he must have the relevant burden of proof’. 21 This transfer of the burden followed given that, as SIAC said at [5] of its judgment in Abu Hamza, the appellant is alleging that there should be an exception to a general power. 22 An issue of particular importance raised by the decision is the nature of the initial requirement that the Secretary of State be satisfied that the order will not make the affected person stateless. ANALYSIS In E3 and N3 the CA referred to the decision of the United Kingdom Supreme Court in Al-Jedda v Secretary of State for the Home Department (‘Al-Jedda’). 23 In that case, the Secretary of State had appealed to the Supreme Court based on the CA’s finding that a decision leading to statelessness could only be taken upon a strict assessment of the individual’s status as at the date of the order. 24 An appeal could not turn on whether an individual was stateless allegedly by reason of his or her failure to take steps to retain a former nationality, or gain a new one. 25 The Supreme Court rejected the appeal. 26 In Al-Jedda the government had argued that the word ‘satisfied’ in s 40(4) BNA 1981 meant the Secretary of State had a broader span of judgment, rather than one limited to the single issue of nationality (or potential absence thereof) at the time of the order. That submission was rejected in terms by Lord Wilson: ‘Irrespective … of whether the word “satisfied” in subsection (4) can sensibly be afforded any significance at all … it cannot bear the weight which [Counsel for the Secretary of State] seeks to ascribe to it’. 27 17 18 19 20 21 22 23 24 25 26 27 E3 and N3 and Secretary of State for the Home Department [2018] UKSIAC SC/138/2017 and 146/2017, [99]–[102]. E3 and N3 (n 3) [55]. ibid [32], citing Hashi (n 6) [23]–[24]. ibid [32], citing Hashi (n 6) [23]. ibid [32], citing Hashi (n 6) [24]. E3 and N3 (n 3) [58], citing Abu Hamza and Secretary of State for the Home Department [2003] UKSIAC SC23/2003 [5]. E3 and N3 (n 3) [57]–[59], citing Al-Jedda (n 2) [30] (Lord Wilson JSC). Al-Jedda (n 2) [1]. ibid [32]–[34]. ibid. ibid [30]. 169