23 Mar 2017, 13 mins ago

A summary of the Supreme Court ruling in Secretary of State for the Home Department v Al Jedda [2013] UKSC 62

A person who is deemed stateless is severely restricted from pursuing a normal life. As a consequence, a number of basic rights are lost, from the ability to rely on diplomatic assistance to having no home country with an automatic right to return. Is making such an order ever justified on the grounds that it is conducive to the public good? This question was addressed in the recent Supreme Court case of Mr Al Jedda.

Al Jedda was an Iraqi national who moved to the United Kingdom in 1992 and claimed asylum. He was granted British citizenship in 2002, resulting in an automatic loss of his Iraqi nationality under Iraqi law. Al Jedda travelled to Iraq from the UK in 2004, where he was subsequently arrested by US forces and detained without charge for a period of three years. Prior to his release in 2007, the Secretary of State made an order under the British Nationality Act 1981 depriving Al Jedda of his British nationality. In this case, the Secretary of State justified the order under section 40(4) by suggesting that it was Al Jedda’s failure to apply to regain his Iraqi citizenship that made him stateless, rather than the removal of his British citizenship.

Al Jedda challenged this order before the Special Immigration Appeals Commission (SIAC) on the grounds that the order was void as it rendered him stateless. When rejecting the case the SIAC concluded that, on the balance of probabilities, Al Jedda had not proved that he had not regained his Iraqi nationality. The Court of Appeal subsequently reheard the case, and rejected the SIAC’s decision on the basis that it was Al Jedda’s failure to apply for nationality ,rather than the order, that rendered him stateless. Section 40(4) required the Secretary of State to consider whether the order would render a person stateless, and that was the effect it had on Al Jedda, regardless of whether or not Al Jedda had the option to acquire another nationality. The Secretary of State appealed this decision.

The Supreme Court rejected the Secretary of State’s appeal on the basis that section 40(4) did not permit the government to conduct an analysis of whether the person in question could have obtained another citizenship. The effect was that the revocation of Al Jedda’s British nationality was void under section 12 of the Act.

On his return to the UK, it has been argued that the case highlights the Supreme Court valued the rights of Al Jedda over the public interest. Despite this, the wording of the legislation is unambiguous, and the Secretary of State acted unlawfully in making the order, resulting in a serious breach of Al Jedda’s human rights. The decision raises further questions as to the morality of the government’s ability to remove citizenship, and whether this should be balanced against competing interests, such as the public good. The United Nations has repeatedly expressed its concerns on the ‘legal limbo’ that is created if an individual’s citizenship is removed. Indeed, article 8 of the European Convention of Human Rights must be paid close attention to in these circumstances; it is necessary for immigration courts to consider an individual’s welfare and article 8 in order to assess whether making such a decision is ever justified.