An appeal as to whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless, including an analysis of whether the applicant is stateless when the authorities refuse to acknowledge him as a national.
- British Nationality Act 1981, Section 40(2) and 40(4)
- Convention relating to the Status of Stateless Persons 1954, Article 1(1)
- Convention on the Reduction of Statelessness 1961, Article 11
The main issue in this appeal was whether the Secretary of State was precluded under the British Nationality Act 1981 (BNA) from depriving the appellant of British citizenship because to do so would render him stateless, within the meaning of Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (1954 Convention).
The appellant was born in Vietnam in 1983 and was a Vietnamese national. In 1989, the appellant and his family moved to the UK, claimed asylum and were granted a permanent right to reside (‘indefinite leave to remain’). In 1995 they acquired British citizenship. Although none of them had ever had a Vietnamese passport, they had not taken any steps to renounce their Vietnamese nationality.
The appellant was educated in the UK and at 21 years old, he converted to Islam. He was in Yemen in a period between 2010 and 2011, where, according to the security services but denied by him, he allegedly received terrorist training from Al Qaeda.
On 22 December 2011, the Secretary of State notified the appellant of her decision to deprive him of British citizenship under section 40(2) BNA, being satisfied that this would be “conducive to the public good”. She considered that the order would not make him stateless (contrary to section 40(4) BNA) because he would retain his Vietnamese citizenship [3]. The order to deprive him of nationality was made later that day and served on the appellant, followed by an order to deport him to Vietnam. Thereafter, the Vietnamese government has declined to accept the appellant as a Vietnamese citizen.
Appeal proceedings
In 2012, the appellant appealed to the Special Immigration Appeals Commission (SIAC) against the decision to deprive him of British citizenship on the grounds that (i) he was married to a British citizen with a child, (ii) he was of good character and not linked to terrorism, (iii) the decision was incompatible with the European Convention on Human Rights (ECHR), and (iv) the deprivation was prohibited under section 40(4) BNA because it would render him stateless. The later aspect was on the grounds that Vietnamese law did not allow dual nationality, therefore he had lost his Vietnamese citizenship when he applied for British citizenship. SIAC decided that the decision would render the appellant stateless, then it was reversed by the Court of Appeal.
The Supreme Court ruled that the decision by the UK Home Secretary to strip the applicant of British citizenship did not make him stateless, because the applicant still held Vietnamese citizenship “under the operation of its law” (Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons) at the time that decision was made.
The Supreme Court first analysed the interpretation of the term “stateless” according to the 1954 Convention, referring to the French and Spanish versions of the convention, Article 31(1) of the 1969 Vienna Convention on the Law of Treaties), the Prato Report, a meeting of experts convened by UNHCR in Tunisia in 2013, and the UNHCR Handbook on Protection of Stateless persons from 2014 [paras 20-30]. While the court took into account UNHCR Guidance, the judgment noted that some of the UNHCR guidance was not easy to reconcile with the wording of the article itself [28].
The Supreme Court considered:
- Whether determining if someone is considered a national of a State under the operation of its law should be decided by reference to the text of the State’s nationality legislation or include the practice of the government to make decisions which cannot be challenged effectively in the courts.
- Whether deprivation of British citizenship falls under the scope of EU law and the principle of proportionality when it leads to losing EU citizenship; and, if so, whether it would be disproportionate and unlawful under EU law to deprive the appellant of British citizenship for the sole reason that the Vietnamese government does not consider him to be a Vietnamese national under the operation of Vietnamese law, given the appellant has no other nationality.
Issue (i) – Interpretation of the 1954 Convention
The court considered that SIAC’s reasoning was not supported by UNHCR guidance. It considered that there was nothing in the evidence suggesting that the Vietnamese government had taken any action to individually deprive the appellant of citizenship, nor that it had adopted a position or practice against a particular community that the appellant was a part of, and that it could only be accepted that the Vietnamese government had declined to accept that he was or is a Vietnamese national.
The court accepted that the determination of statelessness is decided by reference to the text of the nationality legislation as well as the government’s practice, even if not subject to effective challenge in the court. However, in the court’s view, no action had been taken by the Vietnamese government to deprive him of nationality, and there was no evidence of a decision or practice which treated the appellant as a non-national, including no ministerial decree or practice which could be treated as equivalent to “law” even in the broadest sense used by UNHCR.
The judgment further noted that it is ‘unnecessary on this appeal to express any concluded view on whether or how far practice may supersede law in relation to the concept of statelessness under article 1(1)’ [66], and that ‘SIAC was also wrong to consider that the Vietnamese Government’s subsequent attitude could in some way feed back in time, to determine whether the appellant had Vietnamese citizenship on 22 December 2011’ [67].
The judgment added that practice cannot stand for law in Article 1(1) of the 1954 Convention. In the court’s view, the appellant was born with Vietnamese citizenship and no action was taken to withdraw it, and the later actions of Vietnamese officials cannot be an indication of Mr Pham’s nationality status in 2011 when the Vietnamese government had not taken any position either way. ‘It follows that if anyone has rendered Mr Pham stateless, it is not the Home Secretary on 22 December 2011 but the Vietnamese government thereafter’ [101].
Issue (ii) – application of European law
The court considered that EU law aspects were not within the scope of the appeal, as they were not included in the preliminary issue defined by SIAC in its 2012 order, and it was not clear how they would be different that a proportionality assessment within the scope of the European Convention on Human Rights (ECHR) and domestic law principles which had already been assessed by SIAC. The matter should be remitted to SIAC to address the issue.
The UK Supreme Court ruled that the decision by the UK Home Secretary to strip the applicant of British citizenship did not make him stateless, because the applicant still held Vietnamese citizenship “under the operation of its law” (article 1(1) of the 1954 Convention relating to the Status of Stateless Persons) at the time that decision was made.
The Supreme Court dismissed the appeal and confirmed the order of the Court of Appeal remitting the case to SIAC.
Visit the Global Caselaw Database on Statelessness developed by the Peter McMullin Centre on Statelessness for this judgement and other statelessness caselaw from around the world.
https://www.justiceinitiative.org/voices/case-watch-uk-supreme-court-backs-government-rejection-statelessness-claim
https://www.justiceinitiative.org/voices/case-watch-uk-supreme-court-struggles-pham-statelessness-conundrum
https://www.supremecourt.uk/cases/docs/uksc-2013-0150-press-summary.pdf
Alison Harvey, Burden of proof in statelessness cases and the meaning of “by operation of its law”, 31 January 2020
The Open Society Justice Initiative intervened by way of written submission on 23 October 2014. Their submission was in support of the appellant and used the 1954 Convention and its interpretation in their argument.