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Court of Appeal: Wikipedia can (but shouldn’t) be used to prove foreign law

Court of Appeal: Wikipedia can (but shouldn’t) be used to prove foreign law

In the case of KV v Secretary of State for the Home Department [2018] EWCA Civ 2483 the Court of Appeal accepts that future statelessness is a relevant consideration in an appeal against deprivation of British citizenship obtained on the basis of fraud. The court also gives guidance on the nature of an appeal against deprivation of citizenship, holds that the burden of proof for proving future statelessness rests with the appellant and holds that Wikipedia is (just about) an acceptable source for proving foreign law.

Background

The appellant had been a Sri Lankan national and successfully claimed asylum in the United Kingdom in the 1990s. He later naturalised as a British citizen in 2007. But in doing so, KV concealed the fact that he had already successfully applied for settlement and naturalisation in the assumed identity of another Sri Lankan national.

When the Home Office found out about this previous grant of citizenship, the previous grant was nullified and the deprivation of citizenship process was started to take away the new grant of citizenship on the basis that the appellant had obtained it fraudulently, by concealing a material fact.

The First-tier Tribunal dismissed the appeal against deprivation, as did the Upper Tribunal. Unfortunately, the Upper Tribunal screwed up big time in dealing with the effects of Sri Lankan nationality law and the case was remitted for the facts to be considered on the proper basis.

Nature of an appeal against deprivation

First, though, Leggatt LJ, in the leading judgment, states the general principles applying in an appeal against deprivation:

  1. Like an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, an appeal under section 40A of the 1981 Act is not a review of the Secretary of State’s decision but a full reconsideration of the decision whether to deprive the appellant of British citizenship.
  2. It is thus for the tribunal to find the relevant facts on the basis of the evidence adduced to the tribunal, whether or not that evidence was before the Secretary of State when deciding to make a deprivation order.
  3. The tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection.
  4. If the condition precedent is established, the tribunal has then to ask whether the Secretary of State’s discretion to deprive the appellant of British citizenship should be exercised differently. For this purpose, the tribunal must first determine the reasonably foreseeable consequences of deprivation.
  5. If the rights of the appellant or any other relevant person under article 8 of the European Convention on Human Rights are engaged, the tribunal will have to decide whether depriving the appellant of British citizenship would constitute a disproportionate interference with those rights. But even if article 8 is not engaged, the tribunal must still consider whether the discretion should be exercised differently.
  6. As it is the Secretary of State who has been charged by Parliament with responsibility for making decisions concerning deprivation of citizenship, insofar as the Secretary of State has considered the relevant facts, the Secretary of State’s view and any published policy regarding how the discretion should be exercised should normally be accorded considerable weight (in which regard see Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799).

For the case law junkies amongst you, here the Court of Appeal is preferring the approach of President Lane in BA rather than the approach of Deputy President Ockelton in Pirzada.

Meaning of statelessness

Leggatt LJ considered the meaning of the word “stateless” in this context. It is not clear from the judgment what was argued by the Secretary of State, but the court held that statelessness has the normal meaning as confirmed in the case of Pham:

a person who is not considered a national by any state under the operation of its law.

If the appellant could prove that he had lost his Sri Lankan citizenship when he became British and that he would not automatically re-acquire it, he would prove that he was stateless.

The Upper Tribunal had gone wrong in this case by using “stateless” in a broader, more colloquial sense of a person who cannot readily acquire another nationality and by referring to the irrelevant case of KK (Korea) CG [2011] UKUT 92 (IAC).

This precision of terminology is not the whole story, though. Statelessness does not form part of the statutory test in this context; it is just a relevant consideration. Another relevant consideration might be whether the person concerned can easily acquire another nationality.

Relevance of statelessness

KV argued that he had by automatic operation of Sri Lankan law lost his Sri Lankan citizenship when he became a British citizen, and therefore to deprive him of his British citizenship now would leave him stateless. This would be a Bad Thing and was therefore one reason why he should not be deprived of his British citizenship.

Section 40 of the British Nationality Act 1981 includes a protection against statelessness where a person is deprived of their British citizenship on the ground that it is conducive to the public good. That protection does not apply to the power to deprive a person of their British citizenship on the ground it was obtained by deception.

The relevant part of section 40 reads:

(2) 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.

(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a) fraud,

(b) false representation, or

(c) concealment of a material fact.

(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

Note the emphasis in bold: subsection (4) does not apply to subsection (3). This is consistent with the 1961 Convention on the Reduction of Statelessness.

Just because the Secretary of State can do something does not mean he should. Given that the appeal is a general one which includes consideration of the consequences of deprivation of British citizenship for the person concerned and the tribunal must decide how the discretion should be exercised for itself, the fact that deprivation would leave the person stateless is a relevant consideration, says Leggatt LJ.

It will also be relevant if the person can acquire (or re-acquire) another citizenship, though. This was a live question in this case, as we will see below.

Burden of proof

It was argued on behalf of the appellant, perhaps slightly optimistically, that the burden of proof lay on the Home Office to prove that the appellant would not be made stateless by the deprivation decision.

To be fair, this was based on clear authority in the case of the SIAC case of G3 v SSHD (SC/140/2017). However, as Leggatt LJ pointed out, that case involved deprivation on the ground of conduciveness to the public good, under section 40(2). In such cases section 40(4) applies and the Secretary of State does have to establish that the person will not be made stateless. The same requirement does not apply to section 40(3).

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The burden of proof therefore, as normal, lies on the appellant to establish that he will be made stateless, just as with any other element of his or her case.

Proof of foreign law: Wikipedia is OK

Whether the appellant in this case had lost his Sri Lankan citizenship and whether he could re-acquire it were both determined by Sri Lankan law, obviously.

Matters of foreign law are treated as matters of fact which must be proven to the satisfaction of the tribunal or court. Traditionally this requires expert evidence because different legal systems might operate differently to our own or be in a foreign language.

However, Leggatt LJ holds that expert evidence is not always needed:

An English judge does not generally need expert assistance in order to understand and interpret an enactment or decision of a court of another English-speaking country whose law forms part of the common law. Decisions of such courts are frequently cited in the English courts and treated as persuasive authority on questions of English law with no suggestion that the court needs the aid of an expert witness in order to interpret such materials. There is no reason why the court should be any less competent to interpret such materials when they are relied on to prove the content of the foreign law concerned.

Do I detect some wistfulness in the subsequent observation that “no longer is it generally necessary to consult books in a library in order to conduct legal research”? Leggatt LJ observes that a vast amount of legislation and case law is now published online and that where the current version is published on an official government website he could “see no reason why a court should not look at the provision without the aid of an expert witness”.

Leggatt LJ specifically says “I am not encouraging the use of sources such as Wikipedia”. But as a matter of law it is up to the tribunal or court to decide what evidence of foreign law to consider and if the tribunal wants to rely on Wikipedia, that is not of itself an error of law.

From a legal and pragmatic perspective, this is all very welcome. Frankly, though, the way the Upper Tribunal interpreted the relevant statutory provisions in this case rather suggests that expert evidence might be a good idea.

Sri Lanka citizenship law

In this case KV’s lawyers had in the First-tier Tribunal produced a Wikipedia print-out of an article on the Ceylon Citizenship Act. Astute observers will realise that this was probably out of date in at least one respect, the state of Ceylon having ceased to exist in 1972.

In the Upper Tribunal an amended and up-to-date version of the actual legislation was produced.

Expert evidence was later commissioned and an application made to produce it before the Court of Appeal, paid for out of the lawyer’s own pocket because the client had been unable to afford it. The Court of Appeal partially admitted the expert evidence as proof of the current wording of Sri Lankan citizenship law, which the court decided it was perfectly capable of reading and understanding for itself, thank you.

It seems from the 1948 Sri Lanka Citizenship Act (as amended) that there are only two ways in which a Sri Lankan citizen can become a Sri Lankan citizen: by descent and by registration. The concept of acquisition of citizenship by birth — sometimes referred to as jus soli — does not seem to have been adopted in Sri Lanka.

Section 20(5) of the Act provides that:

A person who is a citizen of Sri Lanka by descent shall cease to be a citizen of Sri Lanka if he voluntarily becomes a citizen of any other country.

It therefore seemed that the appellant had originally been a Sri Lankan citizen by descent and that he had automatically lost his Sri Lankan citizenship when he voluntarily became British.

The Upper Tribunal went badly wrong here, seemingly by assuming that acquisition by birth did exist in Sri Lanka, despite there being no reference to this in the statute. As Leggatt LJ says, this was a “palpable misreading” of the statute.

It is possible for a Sri Lankan citizen to re-acquire Sri Lankan citizenship but only by applying to a minister for a declaration of resumption. Various conditions apply, including that the person concerned is and intends to continue to be ordinarily resident.

Leggatt LJ held it was therefore clear that the appellant could not resume his Sri Lankan citizenship because as a former refugee it was not reasonable to expect him to do so.

As an aside, had this issue been before the Upper Tribunal, or at least some long-serving judges therein, I suspect that being a former refugee would have been of little assistance to the appellant and he might well have found himself having to re-prove his original asylum claim. Happily, the Court of Appeal adopted a more realistic and humane approach.

 

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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