The Court of Appeal (CA) has in the case of B2 v Secretary of State for the Home Department  EWCA Civ 616 (24 May 2013) allowed the Home Secretary (SSHD) to deprive a British-Vietnamese dual national of British citizenship following his alleged involvement in terrorism related activities. The case, on appeal from SIAC, establishes how our courts should interpret foreign nationality laws which are decided exclusively by the executive arm of the foreign state without judicial supervision.
The respondent in the case, referred to as ‘B2’, was born in Vietnam in 1983 and moved to the UK with his parents in 1989, where they successfully claimed asylum. The family acquired British citizenship in 1995. B2 and his family did not take any steps to renounce their Vietnamese nationality.
At the age of 21 B2 converted to Islam. It is alleged that he received terrorist training from Al Qaida while living in Yemen between December 2010 and July 2011. Following his return to the UK, the SSHD served B2 with an order to deprive him of his British citizenship. The order was made pursuant to s.40(2) of the British Nationality Act 1981 (the 1981 Act), which provides that the SSHD may make an order to deprive a person of citizenship status if she is satisfied that the deprivation of citizenship is conducive to the public good.
Following the SSHD’s s.40(2) order, B2 was served with notice of intended deportation to Vietnam. The Vietnamese Government was informed. After initially declining to accept that B2 was a Vietnamese national, the Vietnamese Government adopted the position that B2 had lost his Vietnamese citizenship prior to the SSHD’s s.40(2) order.
Section 40(4) of the 1981 Act prohibits the SSHD from making an order depriving a person of citizenship status, if she is satisfied that the order would make a person stateless. In Abu Hamza v SSHD (SIAC, 5th November 2010) it was determined that the word ‘stateless’ in s.40(4) of the 1981 Act refers to de jure stateless persons. De jure stateless persons are persons who do not have nationality under the law of any state. This can be distinguished from de facto stateless persons, which refers to persons who possess a nationality, but are not protected by any state (see CA judgement at paragraphs 28-33).
B2 argued that the SSHD’s decision to remove his British nationality was unlawful as it rendered him de jure stateless. Drawing on Article 1 of the Convention Relating to the Status of Stateless Persons 1954, which defines a stateless person as a person who is not considered as a national by any state under the “operation if its law”, B2 submitted that as the operation of Vietnamese nationality laws is decided exclusively by the executive, he had lost his Vietnamese nationality under Vietnamese law once the Vietnamese Government had made the decision to revoke his Vietnamese nationality. The SSHD’s subsequent decision to deprive him of his British nationality made him de jure stateless as he no longer had nationality under the law of any state (see paragraphs 84-87).
The SSHD maintained her decision was lawful as it made B2 de facto stateless, but not de jure stateless. The SSHD argued that the Vietnamese Government had failed to revoke B2’s Vietnamese nationality in accordance with the procedures set out in Vietnamese law. As a result, B2 continued to hold Vietnamese nationality under Vietnamese law. The SSHD was therefore permitted to deprive B2 of British nationality as this only rendered him de facto stateless i.e. B2 held Vietnamese nationality, but was not protected by any state (see paragraphs 81-83).
The Court of Appeal agreed with the SSHD. The fact that the Vietnamese government had reached its decision on B2’s nationality without applying any of the procedures for revoking Vietnamese nationality under Vietnamese law rendered their decision unlawful. Executive control over the operation of Vietnamese nationality law did not obviate the Vietnamese Government’s unlawful decision (paragraph 91). The British courts were obliged to respect the rule of law and could not uphold a decision by a foreign state which was contrary to that state’s law.
Delivering the judgement for the court, Jackson LJ provides the following interpretive guidance at paragraph 92:
“If the relevant facts are known and on the basis of those facts and the expert evidence it is clear that under the law of a foreign state an individual is a national of that state, then he is not de jure stateless. If the Government of the foreign state chooses to act contrary to its own law, it may render the individual de facto stateless. Our own courts, however, must respect the rule of law and cannot characterise the individual as de jure stateless.”
The Vietnamese Government’s failure to revoke B2’s nationality in accordance with Vietnamese law meant B2 had remained a Vietnamese national. Therefore, the SSHD’s order to deprive his British nationality was lawful as B2 would not become de jure stateless. Abu Hamza v SSHD (SIAC, 5th November 2010) was upheld.
The CA’s ruling may be viewed as a missed opportunity to relax the somewhat academic distinction between de jure and de facto statelessness (see UNHCR’s ‘Massey Report’). In anticipation of this critique, Jackson LJ submits at paragraph 92 of the CA’s judgement:
“If this outcome is regarded as unsatisfactory, the remedy is to expand the definition of stateless persons in the 1954 Convention or in the 1981 Act, as some have urged. The remedy is not to subvert the rule of law. The rule of law is now a universal concept. It is the essence of the judicial function to uphold it.”
The case also raises serious questions about the SSHD’s wide discretion and the legal safeguards in relation to citizenship deprivation orders under s.40(2) of the 1981 Act. In the present case, public interest concerns prevented the disclosure of part of the information on which the SSHD decided to issue the order against B2 (see judgement paragraph 13). It is hoped that s.40(2) and the cloak provided by public interest concerns do not evolve into an expedient tool to remove ‘undesirable’ dual nationals.
UNCHR estimates there are about 12 million stateless people around the world. According to 2011 figures, around 150 to 200 people each year claim asylum and are recorded as being stateless by the UK Home Office. There have been positive developments in the UK for the stateless this year, though, and if you are interested you can read about the new UK stateless determination procedure here.
Nikesh works at a leading immigration law firm in London. He recently conducted published research in EU and Immigration law as part of an MPhil at Cambridge University.