Secretary of State for the Home Department v Hicks

This is an appeal, by leave of the judge, by the Secretary of State for the Home Department (“the Secretary of State”) against a judgment of Collins J dated 13 December 2005. The judge quashed a decision of the Secretary of State given on 12 October 2005 and also declared that the Secretary of State had no power to withhold or deprive David Hicks (“the respondent”) of British Citizenship. By a letter of that date, the Secretary of State postponed, though stated it would be considered as soon as possible, the respondent’s application for registration as a British Citizen. Mandatory relief was sought but not granted and is not now sought by way of cross-appeal. In substance, the present issue concerns the powers of the Secretary of State when he grants an application for registration as a British citizen. In circumstances which will be described, he claims the power to grant but, by parallel action taken at the same time, to deprive the respondent of Bristish citizenship.

The respondent is an Australian citizen who is being held at Guantanamo Bay by the authorities of the United States. He was born in Australia. His mother was born in the United Kingdom and emigrated to Australia with her family while still a child. Had his father been born in the United Kingdom, and so had been a citizen of the United Kingdom and Colonies by virtue of Section 1 of the British Nationality Act 1948 (“the 1948 Act”), the respondent would have been a citizen by descent under Section 5 of that Act. It had been acknowledged that the provision involved sexual discrimination and by virtue of a new Section 4C inserted into the British Nationality Act 1981 (“the 1981 Act”) by Section 4(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), it was provided that, subject to several conditions, persons who would have become citizens by virtue of Section 5 of the 1948 Act, had their fathers been born in the United Kingdom, may apply for registration as British Citizens: “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”. The respondent satisfies that condition and the other conditions specified in the section.

On 16 September 2005, as soon as he appreciated that he qualified for registration under Section 4C of the 1981 Act, as amended, the respondent applied for registration. On 9 November 2005, the Secretary of State wrote to the respondent’s solicitors in these terms:

Your client has received extensive terrorist training in Pakistan and Afghanistan, including training at an Al Qaida camp in Afghanistan.

Your client has trained with known Islamic extremists in this camp.

Application for judicial review was made and an early hearing sought on the basis that the respondent was due to be tried in Guantanamo Bay by a Military Commission. That proposed hearing has been adjourned until the summer of 2006.

By letter dated 5 December 2005, the Secretary of State provided the respondent with further information “for the purpose of making representations”, that is, representations by the respondent against the proposed course of action. The letter was written before the judgment but after the hearing before the judge:

Attending a Lashkar Tayyaba (“LT”) training camp in Kashmir in around 2000. LT is a proscribed organisation with some links to AL QAIDA. He met a number of UK nationals in the camps in Kashmir.

Attending the Al Farooq system of camps in Afghanistan in around 2001. Al Farooq was a system of AL QAIDA training camps.

Receiving training in weapons and guerrilla warfare, as well as urban, mountain and intelligence training while in Afghanistan.

While in Afghanistan, meeting and training with a number of UK nationals known to be Islamist extremists, including Feroz ABBASI, Martin MUBANGA, Richard REID and Sajid BADAT

Meeting Abu HAFS in Afghanistan. Abu HAFS Al-Masri @ MUHAMMED ATEF was a key AL QAIDA terrorist planner.

The respondent was seized in Afghanistan by Northern Alliance forces in December 2001 and has been detained at Guantanamo Bay since January 2002. He seeks British citizenship because he considers he has a better chance of release, or other remedy, if a British citizen. The release of other British subjects has been negotiated. The first issue before the court is whether the Secretary of State can so arrange the grant of citizenship as to be in a position simultaneously to revoke it, on the basis of the respondent’s alleged activities in Pakistan and Afghanistan in 2000 to 2001. That involves deciding whether the Secretary of State can rely on conduct of the respondent prior to the acquisition of British citizenship when considering whether to deprive him of that citizenship. In written submissions on behalf of the Secretary of State that is stated to be the sole issue in his appeal.

In relation to the timing of the grant of citizenship, Mr Sales has told the Court that the United States Government is being pressed to allow access to the respondent. Section 42(1) of the 1981 Act provides 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”, though, by virtue of Section 42(6), the Secretary of State may disapply that sub-section “because of the special circumstances of the case”. The required oath in Schedule 5 is:

Section 4 of the 2002 Act introduced into the 1981 Act, with effect from 1 April 2003, a new Section 40 which deals with the power to deprive a British citizen of his citizenship:

It is common ground that the Secretary of State cannot, on the facts of this case, rely solely on the “anything seriously prejudicial” provision in Section 40(2) of the 1981 Act, as substituted by Section 4(1) of the 2002 Act. He needs to apply Section 40 of the 1981 Act as in force before commencement of Section 4(1) of the 2002 Act. Section 40 provides, insofar as is material:

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 -

has shown himself by act or speech to be disloyal or disaffected towards Her Majesty; or

has, during any war in which Her Majesty was engaged, unlawfully traded or communicated with any 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

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.

Subsection (3) applies to any British citizen who falls within paragraph (a) … of subsection (2); and in subsection (3) “the relevant date”, in relation to a British citizen to whom subsection (3) applies, means the date of registration by virtue of which he is such a citizen …

The Secretary of State-

The statutory scheme applying to the present case is not in issue. In exercising his power to deprive the respondent of his British citizenship under Section 40 of the 1981 Act, as substituted by Section 4(1) of the 2002 Act read in conjunction with Section 4(4) of the 2002 Act, the Secretary of State must satisfy the requirements of Section 40(3)(a) of the 1981 Act, as originally enacted. Before the judge, the respondent submitted that the Secretary of State could only rely upon the respondent’s conduct subsequent to his acquisition of British citizenship. For the Secretary of State, it was submitted that reliance could be placed on the respondent’s acts and conduct in Afghanistan in 2000 and 2001 as demonstrating disloyalty or disaffection towards Her Majesty within the meaning of Section 40(3)(a) of the 1981 Act. The judge held that the actions alleged against the respondent would, if established, be covered by Section 40(2) of the 1981 Act, as substituted, but, read in conjunction with Section 40(3)(a) of the Act as originally enacted, the Secretary of State could not rely on what the respondent had allegedly done to deprive him of citizenship under Section 40(3)(a) and so cannot now rely on that conduct under the substituted Section 40 (paragraph 27 of judgment).

But for that conclusion, the judge would have found for the Secretary of State. The judge saw no reason why, if the Secretary of State was entitled to deprive the respondent of his citizenship, he should not have decided to register and to order deprivation immediately thereafter (paragraph 30) and that “exiguous though they are” the reasons given in the letter of 9 November 2005 were sufficient to comply with the respondent’s statutory obligation to give reasons for the proposed order (paragraph 34). The judge also held that the Secretary of State was entitled in the exercise of his discretion to distinguish between the respondent and other British citizens (paragraph 36). I will consider those issues, raised by respondent’s notice, later in this judgment.

On the first issue, argument before the judge revolved around the meaning of the word “disaffected” in Section 40(3) of the 1981 Act, as originally enacted. Before this court, the position was more complex, as will appear. Moreover, late in the hearing, and following points put by Rix LJ to Mr Fordham for the respondent in the course of argument, Mr Sales, for the Secretary of State, took the further point that, even if the respondent’s conduct in Afghanistan in 2000 to 2001 was not capable of being “disloyal or disaffected towards Her Majesty”, the conduct could be relied on as showing that, at the moment of registration as a British citizen, the respondent was disloyal and disaffected. Current disaffection could and should be inferred from the earlier conduct.

Reference has been made to the legislative history of the power to revoke citizenship. The British Nationality and Status of Aliens Act 1914 (“the 1914 Act”) empowered the Secretary of State to grant a certification of naturalisation to an alien who satisfied the Secretary of State that he met certain requirements (Section 2(1)). Section 7(1) provided that “where it appears to the Secretary of State that the certificate of naturalisation granted by him has been obtained by false representation or fraud, the Secretary of State may by order revoke the certificate”. The Section also provided for a person whose certificate was revoked, and who failed to give it up, to be liable to a fine.

Section 1 of the British Nationality and Status of Aliens Act 1918 (“the 1918 Act”) substituted for Section 7 of the 1914 Act a more comprehensive power to revoke. The substituted Section provided:

Thus the ‘public good’ requirement applied only to Section 7(2) and not 7(1). Section 7(3) and (4), as substituted, made provision for an enquiry to be held, in certain circumstances, before an order was made under the Section.

Section 3 of the 1918 Act also created a power to revoke the grant of a certificate of a person who had previously been the subject of a country which at the date of the grant was at war with His Majesty and, subject to exceptions, also provided that, for a period of ten years after the termination of the war, no certificate of naturalisation should be granted to any subject of a country which at the time of the passing of the Act was at war with His Majesty.

When the 1918 Act became law, on 8 August 1918, the 1^st World War had of course been going on for four years. The provisions of the Act demonstrate strong hostility towards the then enemies of His Majesty and those who traded with them.

In relation to the amendments achieved by the 1918 Act, it is submitted on behalf of the Secretary of State that the inclusion of “disaffected or disloyal” in the same subsection and sentence as the provision of a power to deprive by reason of false representation, fraud or concealment of material circumstances, suggests that there was no intention to provide for a different temporal application as between the criteria. Further, the situations contemplated in Section 7(2)(a),(b) and (c), as substituted, involve conduct prior to the acquisition of citizenship. That conduct included trading with the enemy prior to citizenship (paragraph (a)). It is clear that in certain circumstances unlawful trade with the enemy, within the meaning of Section 7(2)(a), could be conducted by a person who was not a British citizen. It included the commission of crime prior to citizenship, provided the sentence, which is the relevant event, followed the grant (paragraph (c)). Moreover, the absence of good character at the date of the grant (paragraph (c)) would clearly depend on conduct before the grant.

Mr Sales submits that, if a certificate may be revoked for trading with the enemy prior to the grant, the prior taking up of arms, for example as an enemy general, against His Majesty, must amount to disaffection or disloyalty. Why should a senior German officer be better off than a mere trader, he asks rhetorically. Similarly, it is submitted, if ordinary criminal activity prior to the grant may constitute a ground for revoking citizenship, the prior taking up of arms against the Crown, and thereby showing disloyalty or disaffection, must entitle the Secretary of State to revoke. There is every reason, it is submitted, to apply the concept of disaffection to cover conduct prior to the grant of citizenship.

Much of the language introduced by the 1918 Act has been carried forward into the Acts of 1948 and 1981, subject to re-arrangement. Section 20 of the British Nationality Act 1948 (“the 1948 Act”) applied to citizens by registration as well as to naturalised persons. It provided, in so far as is material:

Article 7(1) of the European Convention on Nationality (November 1997), which the United Kingdom has not signed, limits the circumstances in which a state party may, in its internal law, provide for the loss of its nationality “ex lege or at the initiative of the state”. Article 7(1)(a) does however provide that conduct seriously prejudicial to the vital interests of the state party can be a ground for deprivation at the initiative of the state party. Section 40(2) of the 1981 Act, as amended, is consistent with that.

Having submitted that the door is open to treating pre-grant conduct as relevant on the issue of revocation, Mr Sales submits that the alleged conduct of the respondent amounted to disaffection. The relevance of disloyalty, it is submitted, arises from the decision of the House of Lords in Joyce v DPP [1946] AC 347, not cited to the judge. An American citizen, holding a British passport after the outbreak of war between Great Britain and Germany in 1939, delivered from German territory broadcast talks in English hostile to Great Britain. A conviction for treason was upheld. Lord Jowitt LC referred to “the reciprocal duties of protection and allegiance” (page 370). Lord Jowitt stated, at page 371:

Mr Sales submits that Joyce demonstrates that a person outside the United Kingdom who is not a citizen may owe a duty of allegiance and it is conceptually perfectly possible for a person to have shown himself to be disloyal or disaffected towards Her Majesty by conduct committed before he became a British citizen. Disloyalty and disaffection may be shown without allegiance as a citizen being owed.

It is expressly conceded that the respondent’s conduct did not amount to disloyalty. The submission is that if disloyalty on the part of a non-citizen is possible in law, then so is disaffection. Disaffection is a wider concept than disloyalty. The Secretary of State’s central submission is that disaffection, within the meaning of Section 40(3)(a), is shown when an individual has by word or deed displayed active hostility to Her Majesty (as representing the United Kingdom) by showing himself unfriendly to the Government of the United Kingdom or hostile to its vital interests. (It is not suggested that loyalty to Her Majesty as Queen of Australia is a relevant factor in this case.) If a person may have his citizenship revoked for having traded with the enemy or committed an ordinary crime before he became a British citizen the same must apply if he had actually taken up arms to fight for an enemy against the United Kingdom or if he had committed treasonable conduct. If trading with the enemy is a ground for revoking citizenship, as it has been since 1918, how much more is the hostile conduct alleged against the respondent.

Before the judge, it was conceded on behalf of the Secretary of State that if under Section 40(3)(a) only acts done or speeches made after the individual had become a British citizen are taken into account, the Secretary of State cannot rely on the procedure sought to be followed (paragraph 17 of judgment). It is conceded that the words “disloyal” and “disaffected” bear the same meaning in the 1981 Act as they did in the 1918 Act.

For the respondent, Mr Fordham refers to the link throughout the legislation between the word “disaffected” and the word “disloyal”. That is because it too is involved with the concept of allegiance, it is submitted. Once it is conceded that disloyalty could not, subject to the Joyce principle, arise from pre-citizenship conduct, the same must apply to disaffection. Reliance is also placed on the wording of Section 40(3) of the 1981 Act, as originally enacted. It is ‘that citizen’ who must have shown himself to be disaffected.

In the Oxford English Dictionary (2^nd Edition) “disloyal” is defined as “untrue to one’s allegiance, wanting in loyalty to the government or to constituted authority”. “Disaffected” is defined as “evilly affected, estranged in affection or allegiance, unfriendly, hostile, unfriendly to the government or to constituted authority, disloyal.” “Disaffection” is defined as “political alienation or discontent; a spirit of disloyalty to the government or existing authority.”

Counsel were invited to produce examples of the use of the word disaffected to cover hostility to a foreign government, or hostility to an entity to which the person did not belong or have a relationship, and no examples were forthcoming. None of the examples of the use of the word in the Oxford English Dictionary support the view for which the Secretary of State contends. Examples given there of the use of the words “disaffected” and “disaffection” include:

I do not consider that the observations of Stuart-Smith LJ in R v Secretary of State for the Home Department ex parte Ejaz [1994] QB 496, 503C, about Section 40(3)(a) are of assistance because the present issue was not confronted and submissions were not addressed to the court. Nor do I consider the approach of the Malaysian authorities to a similar provision in the constitution of Malaysia, as reported in Geok v Minister for the Interior [1964] 1 WLR 554, significantly assists.

The meaning of the word disaffected was considered in the High Court of Australia in Burns v Ransley [1949] 79 CLR 101. The defendant, an Australian citizen, was convicted of uttering seditious words, contrary to Section 24 of the Crimes Act 1914-1946. By virtue of Section 24B seditious words were words expressive of a seditious intention, and a seditious intention, by virtue of Section 24A included, amongst other things, an intention to excite disaffection against the Government or Constitution of the Commonwealth [of Australia]. The court was divided as to whether the necessary intention was present on the facts. However, Rich J stated, at page 111:

Joyce was applied in R v Arrowsmith [1975] QB 678. It was held, at page 687H, that a soldier owes allegiance to the Crown, whether he has taken the oath of allegiance or not. The charge was of endeavouring to seduce a member of Her Majesty’s forces from his duty or allegiance to Her Majesty. It was charged under the Incitement to Disaffection Act 1934. The word “disaffection” is used in similar circumstances in the Police Act 1996, Section 91. It is a use based on the existence of the relationship of an individual with a state organisation.

In my judgment the word “disaffected” as well as the word “disloyal” requires an attitude of mind towards an entity to which allegiance is owed, or at least to which the person belongs or is attached. It is possible linguistically for there to be a disaffected minority within a state or a disaffected person or element within a political party or, by way of example, a trade union or a club. To be disaffected is to be estranged in affection towards an entity to which one owes allegiance or with which one has at least a relationship. The word is not apt to cover, in relation to the United Kingdom, an outsider, whether a German general during the 1st World War, or an Australian in Afghanistan in 1990.

It is conceded that the words “disloyal” and “disaffected” bear the same meaning in the 1981 Act, as they did in the 1918 Act, enacted at a time of war. I find it inconceivable that Parliament can have had in mind that the entire enemy military, and indeed their entire population, was disloyal or disaffected towards His Majesty the King. The concept, which suggests a previously existing affection or allegiance, now estranged, would have been untenable in 1918 and in my judgment still is. There may be disaffection amongst the enemy but not disaffection towards an enemy.

The fundamental flaw in reliance on Joyce is that the decision flowed from Joyce’s holding of a British passport. Lord Jowitt put the point clearly and succinctly. Joyce was pledging the continuance of his fidelity when he committed the acts complained of. While Joyce was not a British citizen, he was maintaining and asserting a relationship, and thereby pledging fidelity and claiming the protection of the Crown. There were reciprocal duties. It is submitted by Mr Sales that it would be very odd if a person in the position of Joyce, who was discovered after grant of citizenship to have been guilty of treason before the grant, could not be deprived of his citizenship. That is, however, entirely different from the conduct of a person such as the respondent owing no allegiance to Her Majesty (in right of the United Kingdom) and claiming no protection from her.

I consider the argument based on the German general and the mere trader to be misconceived. Trading with the enemy was, and I would take judicial notice, a major public issue during the 1^st World War when, in 1918, Section 7(2)(a) was inserted into the 1914 Act. There were other measures, to which we have been referred, which also related to trading with the enemy. The paragraph was a specific provision to deal with a specific mischief. Its insertion does not begin to establish a Parliamentary intention to make the entire German army disaffected towards His Majesty the King.

Section 40(3)(a) of the 1981 Act, as originally enacted, does contemplate circumstances in which conduct before grant of citizenship could provide grounds for revocation of citizenship, as did its statutory predecessors. I also accept that an allegiance may arise, the breach of which may constitute disloyalty or disaffection, without the person being a citizen. A stance may be adopted, as explained in Joyce, by a person who is not a citizen. I accept that disaffection has a different and sometimes a broader meaning than disloyalty in that, for example, a person may be disaffected without taking that disaffection to the point of disloyalty.

What none of these propositions establish, in my judgment, or come close to establishing, is that conduct of an Australian in Afghanistan in 2000 and 2001 is capable of constituting disloyalty or disaffection towards the United Kingdom, a state of which he was not a citizen, to which he owed no duty and upon which he made no claims. The context of the statute, which makes pre-citizenship conduct relevant in some circumstances, does not permit the words disloyal and disaffected to be given other than their ordinary meanings. Joyce does not create allegiance where none exists; it demonstrates circumstances in which allegiance may exist without citizenship.

The Secretary of State’s case has depended, until the last moment, on the proposition that the respondent was capable of being disaffected, within the meaning of the statute, in Afghanistan in 2000 and 2001. Once that proposition is rejected, the appeal must in my view be dismissed. The letter of 9 November 2005 did not mention the word disaffected now relied on but did rely on conduct in Afghanistan and Pakistan, prior to arrest. When further reasons were given on 5 December 2005, it was contended that it was the activities at that time which then demonstrated disaffection towards Her Majesty and the United Kingdom. The case was argued in the same way before the judge and, in submissions to this court, it was stated on behalf of the Secretary of State that the issue in his appeal was whether a person may be disloyal or disaffected before becoming a British citizen. It is not in my judgment possible for the appeal in this case to be allowed on the basis of the alternative argument advanced only in reply at the hearing.

The new argument is that acts which did not show disaffection at the time they were committed nevertheless demonstrate that, at the moment of grant of citizenship, the respondent is disaffected within the meaning of Section 40(3)(a). That state of mind could and should be inferred from the earlier conduct without need for a fresh assessment. Reliance is placed on the present tense, “to be disaffected” in paragraph (a). A judgment can be made at the moment of the grant of citizenship, it is submitted.

For the respondent, Mr Fordham, who had no notice of this point, submits that the past tense of the words “has shown himself” in paragraph (a) plainly refer to conduct before the order depriving a person of citizenship. If the order of revocation is to be made contemporaneously with the grant of citizenship, and if, as found, there could be no disaffection before that moment, the conduct cannot be relied on. Disaffection at the moment of decision has not been shown. To cover the parallel action which the Secretary of State contemplates, the present tense would be required in the paragraph before the words “to be disaffected”. Had that been intended, the word “now”, or what is more likely, a fuller form of words to demonstrate a reliance on past conduct as establishing a current state of mind, would have been used.

I have somewhat elaborated the submission of Mr Fordham and would have welcomed fuller argument on the point. However, the submission appears to me to be a sound one. In the absence of the word ‘now’, or equivalent wording in Section 40(3)(a), the ‘to be’ is related in time to the ‘has shown’. The present tense ‘to be’ applies to the time of the ‘act or speech’. On the wording used, the time of the ‘acts’ cannot be disconnected from the time of the ‘disaffection’. Equally, where disaffection has been shown, that is by acts or speech during citizenship, the Secretary of State is not normally required to assess the citizen’s current state of mind.

The wording of the paragraph places the Secretary of State in a difficult position when he is concerned about past conduct but that difficulty arises from the right, subject to only limited conditions, to be registered as a citizen. The right, though later extended so as to avoid sexual discrimination, was confirmed at a time (1948) when entry to the United Kingdom was the right of citizens of Commonwealth countries. It also arises from the absence of a power in the present case, but now normally available, to deprive a person of citizenship if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of the United Kingdom. The difficulty will arise only upon the transitional arrangements required by the 2002 Act.

An analysis of a person’s position once he is granted citizenship is in my judgment required. I would accept that a conclusion could be formed as to the current disaffection of a citizen based partly on pre-citizenship conduct. Certainly, if he were to applaud actions or adopt statements made earlier as representing his current attitude to the United Kingdom, he could be shown to be disaffected. Analysis is in my judgment required, however, and I do not accept Mr Sales’ submission that a fresh assessment is unnecessary.

Given the procedure followed by the Secretary of State, the proposed parallel action would not be lawful in this case. I would not in that event consider it to be lawful, unless a fresh analysis, which included a right to make representations, was conducted. The notice in writing which the Secretary of State is required to give involves a right to make representations. Where a person has the right to citizenship and takes, or is prepared to take, the appropriate oath and give the appropriate pledge, basic fairness requires an assessment of his state of mind when he has become a citizen before he can be deprived of the citizenship granted. This may of course involve evidential difficulties, including, in a case such as the present, the long lapse of time between the conduct complained of and the date of decision. The Secretary of State may also face the further difficulty that, pending a decision on review, the person may take steps to relieve himself of his other citizenship and thereby seek to thwart the Secretary of State’s intention to revoke citizenship.

There may be circumstances in which the proposed parallel action now proposed is lawful. While such cases may now be expected to be rare, a person who has in the past traded with an enemy, within the meaning of Section 40(3)(b) of the 1981 Act, as originally enacted, for example, could be given notice and an opportunity to make representations before the grant of citizenship occurs. While there is a right of appeal, as mentioned below, to a judicial tribunal, the appeal is no longer suspensive of the order (Asylum and Immigration (Treatment of Claimants etc) Act 2004, schedule 2). In most future cases, similar to this one, the power to deprive a person of citizenship if the Secretary of State is satisfied that the person has done something seriously prejudicial to the vital interests of the United Kingdom (Section 40(2) of the 1981 Act, as now in force) can be expected to arise, subject to the duty not to make the person stateless (Section 40(4)).

I agree with the judge (and with Mr Sales) that there is no ambiguity in Section 40(3)(a) of the 1981 Act which would justify recourse to Hansard and the debates in Parliament in 1918, 1981 or 2002. Moreover, the issues which have now arisen are unlikely to have been contemplated when the relevant Bills were debated in Parliament so as to provide the foundation for a reliable statement by the responsible minister on the meaning of the disputed paragraph.

Questions relating to the timing of the grant the Secretary of State is required to make do not at present arise. The Secretary of State has admitted that Section 4C of the 1981 Act, which confers a right on certain persons to acquire citizenship by registration, includes an implied requirement to consider an application within a reasonable time. What is a reasonable time, it is submitted by the Secretary of State, should be taken to be informed by the reasonable period required to enable the Section 40(2) procedure to be operated, including the right of the person to be deprived to make representations. That question does not at present arise.

On the other points raised in the respondent’s notice, I agree with the judge. Mr Fordham submits that the reasons for the proposed order have been insufficiently stated. Section 40 of the 1981 Act now provides:

I agree with the judge that, exiguous though they were, the reasons given by the Secretary of State in the letter of 9 November 2005 were sufficient to comply with the statutory obligation. Further reasons were given in the letter of 5 December 2005 and the respondent was given an opportunity to make representations before the proposed procedure was put into effect. We are told that representations were received in February 2006. The respondent has not, in the event, been prejudiced. If an order of deprivation of citizenship were to be made and, if there were to be an appeal, detailed consideration of the conduct relied on by the Secretary of State would of course be required.

I also agree with the judge’s conclusions, at paragraphs 35 and 36, that the Secretary of State, in the exercise of his discretion, is entitled to distinguish between the respondent and other British citizens at Guantanamo Bay. Mr Fordham relies on the fact that there are dual nationals at Guantanamo Bay and the United Kingdom government has at no stage taken any steps to deprive them of their British citizenship. It is submitted that there is no proper basis for such inequality of treatment. Mr Sales submits that, in exercising his discretion, the Secretary of State was entitled to have regard to the extent of the links, including family links, which those British citizens have with the United Kingdom.

The respondent does have the protection of the Australian government which has taken action on his behalf. As compared with others, the respondent’s links with the United Kingdom are weak. The Secretary of State was also entitled to take into account that the other British citizens previously held in Guantanamo Bay had been British at the time they were taken there so that the citizenship link was present at that stage.

I am unable to find that the action proposed by the Secretary of State was unlawful by reason of irrationality. I agree with the judge that the Secretary of State was entitled in the exercise of his discretion to distinguish between the respondent and other British citizens at Guantanamo Bay.

Had I concluded that the Secretary of State’s appeal should succeed, I would not have dismissed it on the grounds considered in paragraphs 48 to 52 of this judgment arising from the respondent’s notice. For reasons given earlier, I would dismiss the appeal.

I have read Pill LJ’s judgment in draft, with gratitude. I agree with him, and for the reasons which he gives, that the words “disloyal or disaffected” in section 40(3)(a) of the 1981 Act as originally enacted presuppose the existence of a state of allegiance between the citizen whose conduct is in question and Her Majesty in right of the United Kingdom.

I also agree that this entails that the Secretary of State’s appeal must be dismissed. This is because the Secretary of State has sought in these proceedings to use the respondent’s pre-detention conduct as showing that he was at that time disaffected, and it follows from the reasoning contained in Pill LJ’s judgment that the respondent could not have been disaffected towards Her Majesty at a time when he was neither a British citizen nor owed in any other way any allegiance to Her Majesty (other than in her right as Queen of Australia).

The Secretary of State’s position has not been entirely unequivocal: see, for instance, his letter dated 5 December 2005, which cites the respondent’s past conduct as being activities –

The language there appears to refer to the contemporaneous position. However, both earlier and subsequently, the Secretary of State has made it plain that he relied on the respondent’s conduct only as demonstrating disaffection at the earlier time of the activities complained of. Thus in his original letter dated 9 November 2005 the Secretary of State alleged only that “your client has done things seriously prejudicial to the vital interests of the UK”. In his further skeleton argument (before the court below) dated 22 November 2005 the Secretary of State contended that “the Claimant had shown himself by act or speech disloyal or disaffected towards Her Majesty” (at para 14) and also spoke of (part of) the test as being “to have shown disloyalty to Her Majesty as required by section 40(3)(a)” (at para 15). Moreover, in his skeleton argument to this court, the essential submission is that disaffection “means simply that an individual has by word or deed displayed active hostility to Her Majesty” (at para 31). In the circumstances, the alternative submission made only in the course of reply following questions from the bench cannot save the present proceedings, even if it may be relevant to future determinations of the Secretary of State.

What, however, I feel less confident about is the true effect of the original section 40(3)(a). I have no doubt that “to be” relates to the situation after the grant of citizenship. In those circumstances, the expressions “disloyal or disaffected” can, irrespective of the Joyce extension, be given their primary or natural meanings relating to the citizen who owes allegiance as a citizen. What I am less clear about is whether the conduct (“act or speech”) which is necessary as evidence (“has shown”) of post citizenship disloyalty or disaffection must itself occur after registration or the grant of citizenship.

If section 40, construed against the background of its predecessor statutes, could only relate to post registration conduct – other of course than those provisions relating to “fraud, false representation or concealment” – then, it would be easy to conclude that subsection (3)(a) was likewise dealing with such conduct as a citizen. However, Pill LJ has shown that section 40(3) cannot be so confined, just as the earlier section 7 of the 1914 Act as amended could not be so confined.

The respondent’s submission, accepted by Pill LJ, is that, in the absence of “now” the composite phrase “has shown himself by act or speech to be disloyal or disaffected” must be construed as relating to the same time: so that, as I understand it, the phrase means the same as “has shown himself by act or conduct to have been disloyal or disaffected”. But, although I would accept that the statutory words could be so construed, especially following the required oath of allegiance, I am unsure that they should be. First, the contrast between “has shown” and “to be” is noticeable. Secondly, where the statute wants to emphasise that something must occur after registration or the grant of citizenship, it does so: for instance, in section 40(3)(c) and (4) by reference to the expression “within five years from the relevant date”, and see also section 7(2)(d) of the 1914 Act as amended (“has since the date of the grant of the certificate been…resident out of His Majesty’s dominions”). Thirdly, since the overt conduct required (“act or speech”) is necessary as proving the person in question “to be disloyal or disaffected”, the question becomes whether the evidence consisting in such overt conduct can relate back to a time before registration or grant. Where the conduct takes place shortly before registration or grant, it is not easy to see why there should be a bar on the relevancy of such evidence. Similarly, where the post registration conduct is a long time before the Secretary of State seeks to deprive a citizen of citizenship under subsection (3)(a), it seems very relevant to question whether that conduct has shown him still “to be disloyal or disaffected”. On the respondent’s construction, that would be irrelevant. Fourthly, what of the case of pre registration disloyalty or disaffection by a non-citizen who nevertheless owes allegiance towards Her Majesty in the extended sense discussed in Joyce? Fifthly, I would have liked submissions to be developed as to what, if any, guidance might be derived from section 3 of the 1918 Act.

In the circumstances, where the point, good or bad, arose so late in the argument, and where its resolution is not needed for the determination of this appeal, I feel reluctant to decide it here.

I would, finally, make some observations about the Secretary of State’s point that he can deprive the respondent of citizenship by registration in parallel with the acquisition of citizenship by registration. I agree with Pill LJ that, on the basis that subsection (3)(a) can only refer to post registration conduct, there can be no question of a parallel deprivation. He leaves open the possibility, however, that parallel deprivation is possible where the reason for it relates back to a time before registration or grant, such as trading with the enemy. I am inclined to think that under the original section 40 such a parallel deprivation is arguably possible, since there is a change of language between subsections (1) and (3) – “may by order deprive any British citizen…of his British citizenship” – and subsections (5) and (6) – “the person against whom the order is proposed to be made” – where the latter language could also have spoken of a “citizen”. Even so, the context may be said to be heavily in favour of the idea that the whole process of deprivation is being carried out with respect to a citizen, and not merely a prospective citizen. Under section 40 as introduced by the 2002 Act, however, the concept of “citizenship status” is introduced: see section 40(1), where such status includes a person’s “status as…a British citizen”. It seems to me hard to say that the subsequent provisions of section 40 as now enacted can apply proleptically in advance of a person’s citizenship status. However, the question does not need to be decided. There is clearly much to be said from the point of view of proper regulation of the acquisition and deprivation of citizenship that the matters can be looked at together.

In sum, I agree that this appeal should be dismissed.

I agree that the appeal should be dismissed for the reasons given by Pill LJ.