The Court of Appeal has handed down its latest judgment relating to deprivation of British citizenship on “conducive to the public good” grounds.
The Court of Appeal dismissed an appeal by Mr Pham against a decision by the Secretary of State for the Home Department (“Home Secretary”) to deprive him of his citizenship. The court considered five issues relating to the question of whether a Deprivation Order can be made where the appellant no longer poses a current risk of harm to the UK, and the leading judgment was given by Lady Justice Arden.
The appellant, Mr Pham, was born in Vietnam in 1983. He moved to the UK in the late 1980s and acquired British citizenship in 1995.
In September 2011, the UK Home Secretary decided to deprive the appellant of his British citizenship due to his suspected involvement in terrorist activities. There was evidence that the appellant had travelled to Yemen in 2011, stayed there for six months and had received terrorist training, including weapons training, and that he had also engaged in terrorism activities. The main reason given by the Secretary of State in 2011 for the Deprivation Order was as follows:
“The Security Service assess that you are involved in terrorism-related activities and have links to a number of Islamist extremists”.
Mr Pham appealed against the Deprivation Order to the Special Immigration Appeals Commission (SIAC). A stream of litigation followed, challenging whether the Secretary of State’s Deprivation Order made Mr Pham stateless. Eventually the Supreme Court held that strictly as a matter of law, he had not been made stateless by this decision.
The appellant then appealed against his Deprivation Order on the basis that the decision was not proportional under EU law, and the case came before the Court of Appeal on 18 - 19 July 2018. It was also brought to the court’s attention that, since his Deprivation Order, the appellant had been extradited to the US and was prosecuted and charged with five terrorism-related indictments. He pleaded guilty on three counts, and is currently serving a 40-year sentence at a high security prison in the US. This was particularly relevant because the appellant's counsel submitted that Mr Pham posed no current risk to UK public security, and by the time he would be at liberty and free to return to the UK, any such risk would be gone.
Under section 40(2) of the British Nationality Act 1981:
“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”.
Key parts of the Court of Appeal's decision turned upon the interpretation of this section.
The parties also referred to the UN Convention on the Reduction of Statelessness 1961 (“The 1961 Convention”) in which the General Assembly of the United Nations gave the UNHCR a mandate to identify stateless people and prevent and reduce statelessness around the world. This principle is the subject of Article 8(1) of the 1961 Convention. The relevant question to Mr Pham’s appeal was whether he should be protected from statelessness under this international law.
Conclusions Of The Court
The most important issue considered by the Court of Appeal was whether a person can be deprived of their status as a British citizen on the basis that he has repudiated his obligation of loyalty to the UK. Counsel for the Appellant submitted that the Home Secretary should have to show that anyone facing deprivation of their citizenship presented a current harm to public security. Given that Mr Pham was now serving a prison sentence in the US, it was argued that he could not pose a risk at the present time. Moreover, it was argued that a high threshold should be met for the deprivation of citizenship and that a decision should not be taken based on someone’s past conduct alone. Counsel for the Home Secretary submitted that the duty of loyalty to one’s country is fundamental to citizenship, and thus repudiation of the obligation of loyalty was in itself a proper basis for the deprivation of citizenship. Counsel argued that there is no requirement for the risk of harm to be current in section 40 of the British Nationality Act 1981.
The Court of Appeal held that the right to citizenship is important and weighty, but that it also carries obligations. With regard to the need to show a current risk of harm to UK public security, the main question was one of the interpretation of section 40(2) of the British Nationality Act 1981. Looking at the specific wording of this section, there was nothing in the words, “conducive to the public good” to suggest that a risk of current harm is a pre-condition. The Court judged that there were many ways that the requirement itself could be satisfied. Lady Justice Arden suggested that the Crown should not have to provide protection to a person who has in the past so fundamentally repudiated the obligations that he owes as a citizen and that the precise grounds are a matter for the Secretary of State to decide.
In addition, the Court of Appeal decided that whether or not SIAC had wrongly failed to consider the issues of proportionality and whether EU law was applicable to the decision to deprive the appellant of his British citizenship did not arise in Mr Pham’s case. One potential issue was the extent to which EU law should inform decisions about nationality issues for individual states: it could be assumed that proportionality should apply. Yet in the context of Mr Pham’s deprivation of citizenship, it is most likely that the level to which proportionality applies goes no further than protecting a citizen from arbitrary removal. In this case, the decision was not arbitrary given the seriousness of the allegations and the appellant’s admissions of guilt.
While this judgment sheds some light on the interpretation of section 40(2) of the British Nationality Act 1981, it seems that further clarification can be awaited as to when and to what extent both EU law and the proportionality test will apply to citizenship deprivation cases.
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