“(1) In this section a reference to a person’s “citizenship status” is a reference to his status as— (a) a British citizen… (2)The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good. (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.” person stateless.”
“Dual citizenship or nationality not permitted Subject to the provisions of this section if any person is a citizen of Bangladesh under the provisions of this Act, and is at the same time a citizen or national of any other country, he shall, unless he makes a declaration according to the laws of that country renouncing his status as a citizen or national thereof, cease to be citizen of Bangladesh. (IA) Nothing in sub-section (1) applies to a person who has not attained twenty-one years of age.”
“Notwithstanding anything contained in any other law, on the commencement of this Order, every person shall be deemed to be a citizen of Bangladesh – (i) who or whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on the 25th day of March 1971, and continues to be so resident; or (ii) who was a permanent resident [of Bangladesh on25th March 1971 and continues to be so].”
“2A. A person to whom Article 2 would have been ordinarily applied but for his residence in the United Kingdom shall be deemed to be permanent resident in Bangladesh. Provided that the Government may notify, in the Official Gazette, any person or categories of persons to whom this article shall not apply. 2B. Notwithstanding anything contained in any other law for the time being in force or in this Order, a person – (i) owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state or (ii) is notified under the proviso to Article 2A shall not qualify himself to be a citizen of Bangladesh.”
“2B (1) Notwithstanding anything contained in Article 2 or in any other law for the time being in force, a person shall not, except as provided in clause (2), qualify himself to be a citizen of Bangladesh if he – (i) owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state or (ii) is notified under the proviso to Article 2A: Provided that a citizen of Bangladesh shall not, merely by reason of being a citizen or acquiring citizenship of a state specified in or under clause (2), cease to be a citizen of Bangladesh. (2) The Government may grant citizenship of Bangladesh to any person who is a citizen of any state of Europe or North America or of any other state which the Government may, by notification in the Official Gazette, specify in this behalf.”
“the findings in this appeal are not necessarily determinative of any future appeal brought by a person in a similar position to that of G3”
“No. 19.00.0000.456.52.401.17.269 The Ministry of Foreign Affairs of the Government of the People’s Republic of Bangladesh presents its compliments to the British High Commission in Dhaka, and with reference to the High Commission’s Note Verbale No. POL/02/18 dated07 January 2018 , has the honour to forward herewith the answer of the given questions regarding S. R. O. no. 69-Act/2008 dated08 March 2008 on dual-Bangladesh / British citizenship received from the Security Service Division, Ministry of Home Affairs. The Ministry of Foreign Affairs, Government of the People’s Republic of Bangladesh avails itself of this opportunity to renew to the British High Commission in Dhaka, the assurances of its highest consideration.”
“However, these [points made by Mr Southey QC] are all reasons supporting the proposition that, in a situation where the burden of proof is firmly on the Respondent [i.e. the Secretary of State], caution should be exercised before concluding that it has been discharged. They are not reasons for abstaining from embarking on the exercise in the first place.”
“51. Ms Rafique has also opined on the Note Verbale. In her opinion, the legal basis for the statement that it is applied retrospectively “is not clear”
“For the purpose of this Convention, the term 'stateless person' means a person who is not considered as a national by any State under the operation of its law.”
“I would accept that the question arising under article 1(1) of the 1954 Convention in this case is not necessarily to be decided solely by reference to the text of the nationality legislation of the state in question, and that reference may also be made to the practice of the government, even if not subject to effective challenge in the courts.”
“90. In our view, the critical question is whether the Note Verbale does represent sufficiently compelling evidence of established practice in Bangladesh such as to discharge the burden of proof which rests on the Respondent. For these purposes it matters little whether the question is posed in terms of how the authorities in Bangladesh chose to interpret the law they have caused to come into effect, or how they choose to apply it in practice. The dividing line between law and practice is somewhat difficult to identify, and we would be content to treat the instant case as a form of hybrid.”
“23. No doubt the SS has the burden of showing that she was satisfied that her order would not make Mr Hashi stateless. That is a comparatively easy burden to discharge and Mr Hashi does not challenge that she was so satisfied. 24. But 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. If at the end of the day the court is left in genuine doubt whether a person who is to be deprived by his UK citizenship would be stateless, his claim to challenge the SS's decision will fail. Such cases will inevitably be rare since, if the challenge is a serious matter, there will have to be evidence of the relevant law as there was in this case. The court will then make up its mind on that evidence as SIAC did. In AlJedda v SSHD[2012] EWCA Civ 358 Richards LJ recorded (paras 122-3) that there was no dispute in that case that the burden of proof was on the appellant on the balance of probabilities. He expressed no surprise at that absence of dispute. Neither do I.”
“105. On the other hand, the Commission is confronted by the nature and terms of the Note Verbale, the sparseness of the reasoning it provides, the assumption underlying it that this is what the law provides, and what Professor Hoque calls an “extra-official interpretation”, falling short of custom and usage which has force of law in Bangladesh. There is no evidence, beyond what is said in the Note, that this is how the 2008 Instruction has been applied in Bangladesh on a systematic basis. Ms Rafique could have provided it had it existed, but instead has informed the Commission that the NVR system is her standard mode of evidence of any difficulty, which absence could well be explained by the NVR scheme. It is surprising that, on a matter of this potentially far-reaching importance, the Note Verbale is all that there is. 106. Ms Rafique has failed to address, still less refute, Professor Hoque’s arguments as summarised under paragraph 43 above. Moreover, if there were ever to be a dispute on this topic, it is unclear what status the judicial review court in Bangladesh would accord to the Note Verbale. If her Majesty’s Government gave similar assurances in a document of this sort, these would not be regarded (pace Professor Hoque) as “extraofficial”, and a good reason would need to be adduced in the Administrative Court for departing from them. Yet, the Commission has no idea what status or weight would be given to the Note Verbale as a matter of the public law of Bangladesh. In this regard we continue to note Professor Hoque’s observations relating to Article 152 of the Bangladesh constitution. 107. On the basis of Professor Hoque’s evidence, it is difficult to conclude that the Note Verbale represents evidence of a settled practice in Bangladesh, still less one which satisfies the standards imposed by, or inherent in, the rule of law. 108. The Commission continues to recognise the difficulty of this point, and assesses the merits as being finely balanced. Ultimately, however, the Commission remains unpersuaded that the Note Verbale clinches the case for the respondent.”
“The reference to 'law' in article 1(1) should be read broadly to encompass not just legislation, but also ministerial decrees, regulations, orders, judicial case law (in countries with a tradition of precedent) and, where appropriate, customary practice.”
“I am not convinced that practice can stand for law in article 1(1) of the 1954 Convention, nor that any relevant practice was proved in this case.”
“28 …The respondent is seeking to take away established rights. One of the most basic rules of litigation is that he who asserts must prove. It was not for Ms Sadovska to establish that the relationship was a genuine and lasting one. It was for the respondent to establish that it was indeed a marriage of convenience. 31 The First-tier Tribunal did not analyse her rights in this way. It was quite simply incorrect to deploy the statement that “in immigration appeals the burden of proof is on the appellant”, correct though it is in the generality of non-EU cases, in her case. She had established rights and it was for the respondent to prove that the quite narrow grounds existed for taking them away.”
“Secondly, there is the problem of proof. The initial burden is upon the applicant. At what stage, if at all, is it transferred to the respondent? And, if it is transferred, what is the standard of proof he has to meet? It is clear from the passages cited from Lord Atkin's opinions in Liversidge v Anderson[1942] AC 206 and Eshugbayi's case that in cases where the exercise of executive discretion interferes with liberty or property rights he saw the burden of justifying the legality of the decision as being upon the executive. Once the applicant has shown a prima facie case, this is the law.”
“As to the burden and standard of proof, we are satisfied that the burden is on the Appellant and that he must prove that he would be made stateless on the balance of probabilities. The prohibition on making a deprivation order if it would make a person stateless is an exception to the general power of the Secretary of State to make the order, if the conditions set out in s40 are satisfied. Conventional statutory construction requires that a person who seeks to establish the existence of an exception to a general power must prove it. 58. Finally, as our analysis of the material in this case demonstrates, it is possible even in a difficult and unusual case, to apply the conventional civil standard of proof without injustice.”
“Given that it is the respondent who is seeking to deprive a person of British citizenship, the burden lies on the respondent to show, on the balance of probabilities, that, on the facts of the particular case, that person will not be stateless, if deprived of British citizenship.”
“I see no reason why, before depriving a person of citizenship on the ground that his naturalisation as a citizen was obtained by fraud, the Secretary of State should be required to investigate whether that person has, or previously had, another nationality. If a person who has been shown to have obtained citizenship by fraud wishes to argue that he should nevertheless not be deprived of his citizenship because this would have further particular adverse consequences in his case over and above the loss of citizenship itself, then it seems to me that the burden must lie on him to identify and prove the further consequences on which he seeks to rely. That includes any assertion that the person will be made stateless.”
“In our judgment, the law remains as stated by Longmore LJ in Hashi; should it matter, we would hold that the burden of proof, once the Secretary of State has shown, as she has in this case, that she was satisfied that the Appellant would not be made stateless by the decision, falls on the Appellant who must show that in fact he has been rendered stateless.”