The United Kingdom Supreme Court handed down its latest ruling on the issue of statelessness and citizenship on 25 March 2015 in the case of Pham v Secretary of State for the Home Department [2015] UKSC 19. The Court held that a decision by the UK authorities to strip Pham of his British citizenship did not make him stateless, because he still held Vietnamese citizenship at the time.
The Appellant was born in Vietnam in 1983. He moved to the UK in the late eighties and acquired British citizenship in 1995, but took no steps to renounce his Vietnamese nationality.
On 22 December 2011, the Home Secretary decided to deprive the Appellant of his British citizenship under s40(2) of the British Nationality Act 1981 because of suspected involvement in terrorist activities. He appealed to the Special Immigration Appeals Commission (SIAC) on various grounds.
The Appellant argued, in particular, that the decision was unlawful under s40(4) of the 1981 Act, which prohibits statelessness, and that it was disproportionate under European Union law.
In relation to the first point, the Appellant argued that the decision to deprive him of his British nationality effectively rendered him stateless under the 1954 UN Convention Relating to the Status of Stateless Persons, as the Vietnamese government refused to confirm him as a citizen when it was asked about his status. The refusal by the Vietnamese government, however, did not come until after the UK government took away his British nationality.
The case was dealt with by a preliminary determination before SIAC. SIAC concluded that the Vietnamese executive no longer considered the Appellant to be a Vietnamese national by operation of its law, which was “deliberately ambiguous” and effectively allowed the Vietnamese executive free rein in reaching the decision.
The Court of Appeal disagreed, distinguishing between decisions that render someone stateless as a matter of fact from those that do so “by operation of the law”, which is what the 1954 Convention is concerned with.
The Supreme Court dismissed the appeal and upheld the remittal to SIAC. Lord Carnwath, with whom the other judges agreed, found that, although the “by operation of the law” point need not be decided solely by reference to legislative texts there was:
“… no evidence of a decision made or practice adopted by the Vietnamese government, which treated the appellant as a non-national “by operation of its law”, even adopting the broadest view of those words as interpreted by the UNHCR…”
Importantly, Lord Carnwath said that even if there had been such a decision, it could not be applied retrospectively and would not, therefore, have been effective at the time of the Home Secretary’s decision to deprive the Appellant of his British nationality. If he was rendered stateless, therefore, this was the result of the (later) decision by the Vietnamese government, not the UK decision. Under the law and practice of Vietnam the Appellant was a Vietnamese citizen at least at that date.
This meant that the Supreme Court failed to decide the point raised in the Court of Appeal’s judgment that a purely factual denial of nationality does not count as a denial under the 1954 statelessness convention. Technically, the question remains open, but the risk of such an approach to some analysts is that a ruling that illegal state denials of citizenship are ineffective could undermine the protective purpose of the statelessness convention.
The Court also declined to specifically address the second, EU law issue, as this was not part of the preliminary issue ordered by SIAC and, therefore, not within the scope of the appeal. The Appellant argued that it was necessarily disproportionate to deprive him of EU citizenship where this would result in him being denied the benefits of any citizenship anywhere, and that the decision was therefore unlawful under EU law. He relied on the case of Rottmann v Freistaat Bayern[2010] ECR I-1449, [2010] QB 761 to argue that member states should have due regard to EU law when exercising their powers “in the sphere of nationality”; and that any judicial review brought against the exercise of those powers, in so far as it affects EU rights, should be carried out “in the light of European Union law”.
The Supreme Court raised concerns about the reliance on Rottmannand suggested that this issue may not fall within the scope of EU law at all, even if it were properly before the Court.
Lord Carnwath said that there was “considerable force” in the earlier judgment of Laws LJ in R (G1) v Secretary of State for the Home Department [2012] EWCA Civ 867, [2013] QB 1008, which identified several difficulties with Rottmann. Indeed, since EU citizenship is parasitic upon citizenship of a member state, Laws LJ questioned whether the Court of Justice even had jurisdiction to consider such matters.
In Pham, Lord Mance also found that it was:
“very arguable that there are under the Treaties jurisdictional limits to European Union competence in relation to the grant or withdrawal by a Member State of national citizenship” (at [84]).
Although they refrained from dealing with EU law directly, several of the judges also nevertheless took the opportunity to make some general observations as to the scope and meaning of proportionality in such cases, and its application between domestic and EU/ECHR jurisdictions.
Lord Mance agreed with Lord Carnwath that a particularly strict standard of review should be applied in cases involving the removal of a status as fundamental as citizenship. He also said that the outcome of such reviews would probably not differ according to whether they were conducted under EU or domestic law.
Lord Sumption also queried whether a review under ordinary public law principles would necessarily produce a different result from a proportionality review and, suggested, at paragraph 110, that SIAC should:
“…take the common law test as its starting point and then say in what respects (if any) its conclusions are different applying article 8 of the Human Rights Convention or EU law. It may well turn out that in the light of the context and the facts, the juridical source of the right made no difference.”
The case will now be remitted to SIAC to determine the remaining issues not covered by SIAC’s preliminary hearing. This includes the Appellant’s right to respect for private and family life under article 8 ECHR and the question of the proportionality in situations of de facto statelessness where article 1(1) of the 1954 Convention does not apply. These issues may well end up before the Supreme Court in due course.
A new s40(4A) of the Immigration Act 2014 has also extended the Home Secretary’s power to deprive naturalised persons of citizenship even where this would render him or her stateless.
The Court found in favour of the Home Secretary in Pham, but Lord Mance’s description of citizenship as a constitutional right that is “as fundamental at common law as it is in European and international law” can perhaps be seen as an indication that the Court will keep a close eye on these developments.
Charles Burnett
Gherson
02 April 2015