Case Watch: UK Supreme Court Backs Government Rejection of Statelessness Claim
By Simon Cox
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
In Pham v Home Secretary the United Kingdom Supreme Court has ruled that a decision to strip the applicant of his British citizenship did not make him stateless, because Pham still held Vietnamese citizenship at the time.
The court did so, in a ruling made public on March 25, based narrowly on the facts of his case, leaving open how British courts may approach discriminatory citizenship decisions by other states.
The judgment emphasizes the fundamental importance of citizenship, which has renewed significance given the UK Government’s recent acquisition of the power to to indefinitely exile British citizens. Much of the judgment relates to issues of European Union law left open for decision and to guidance on proportionality under UK law. In this blog, we focus on the court’s treatment of issues of statelessness and citizenship rights.
In 2012, the UK Government stripped Pham of British citizenship based on untested allegations of terrorism. He had left his country of birth, Vietnam, as a young child, settled in England and acquired British citizenship. The Vietnamese Government had never considered the question of his citizenship until after the UK Government took away his British nationality. When asked then about his status, Vietnam refused to confirm him as a citizen.
Pham appealed the UK decision to the Special Immigration Appeals Commission (SIAC). He relied on a UK law barring deprivation which makes a person stateless. He also argued that removing his citizenship would be disproportionate. SIAC dealt with statelessness as a preliminary issue. It ruled that Vietnam’s position after the UK decision justified SIAC deciding Pham was not a citizen at the date of that decision, and so required the government’s appeal to be allowed. The Court of Appeal reversed SIAC on the ground that Vietnam had acted contrary to its own law: it did not look at whether Vietnam’s position had retroactive effect. It ordered the case to proceed before SIAC on whether Pham’s conduct justified deprivation of citizenship.
The UK Supreme Court dismissed Pham’s appeal, upholding the remittal to SIAC. The court disagreed with SIAC for a different reason from the Court of Appeal. While the Supreme Court judges expressed themselves in different terms, all agreed that the issue of his citizenship could not be decided by reference to a Vietnamese practice or decision adopted after the British decision (para 38). The possibility that Vietnam could subsequently refuse to confirm his citizenship was not enough (para 66). If he had lost that citizenship, it could not have been before the British decision (para 101). Under the law and practice of Vietnam he was a citizen at least at that date.
Any other approach would have damaged the British government strategy of dealing with states like Vietnam. The UK authorities had contacted the Vietnamese Government before their decision, disclosing only Pham’s migration history, not his identity or the accusation of terrorism. After the British decision to strip him of citizenship, his name and other information was provided and the Vietnamese government refused to confirm he was a citizen. A ruling by the Supreme Court that this ex post facto refusal showed he had not been a citizen from some earlier date would have encouraged retroactive citizenship-stripping by states with a cavalier approach to citizenship.
The Supreme Court’s approach meant it did not decide the correctness of the Court of Appeal’s approach. That court had held that a denial of nationality which violates the rule of law does not count as a denial under the 1954 statelessness convention. Several judges clearly sympathized with the Home Office view that the language of Article 1 of the convention – “by operation of the law” – focusses on national law and its proper operation (paras 28, 65). However, the court left for another day the arguments of the Justice Initiative that the protective purpose of the statelessness conventions would be undermined by a ruling that illegal state denials of citizenship are ineffective.
The main concern of the judges was the argument that British citizenship deprivation must comply with European Union law. Pham argued that EU law gives him more favorable rights to disclosure of the evidence against him, as well as the requirement that the deprivation of citizenship is proportionate. The judges responded with a detailed restatement of the pro-citizen strengths of UK law proportionality rules. They concluded that Pham may gain nothing by relying on EU law, since SIAC may uphold his appeal based on UK law—or dismiss it on the assumption that his EU law arguments are correct.
While not deciding the issue, several of the judges took the opportunity to set out their concerns that EU law may not apply. Pham had relied on the Rottmann judgment in which the EU Court of Justice ruled that Member States must take into account EU law when deciding whether to deprive a Union citizen of national citizenship. Lord Mance (with whom 5 other judges agreed) considered it “very arguable” that there are jurisdictional limits to EU competence on the withdrawal of national citizenship (para 84). He considered the domestic court must decide, under its own constitutional arrangements, the limits of the EU Court’s jurisdiction (para 90). He emphasized that it would be a very rare case where such a problem arose, to be avoided through mutual respect.
Mr Pham’s case against deprivation of citizenship will now be heard by SIAC. This will be on the basis that he remained a Vietnamese citizen at the date of the deprivation, albeit that citizenship was recognized by Lord Sumption as unlikely to be of practical value, even if it exists in point of law. Pham was extradited from the UK earlier this month to the United States of America. He faces trial on terrorism charges based mainly on evidence from a man held incommunicado on a ship by the FBI. If convicted, he faces a minimum sentence of 40 years. For the time being, the value to him of British citizenship is his right to British consular protection.
In his judgment, Lord Mance also emphasized that the status of citizenship is “is as fundamental at common law as it is in European and international law” (para 97). He referred to English law texts and judgments from the 18th century to the 21st, speaking of the right to reside in or return to the UK as “a constitutional right” of the citizen and a principle of international law.
The relevance of these statements goes beyond deprivation of citizenship. Last month, the UK Parliament passed the Counter-Terrorism and Security Act 2015. Under Part 1 of the Act, the British government may make a “temporary exclusion order” against a British citizen abroad, barring them from returning to the UK. The order lasts for up to 2 years and can be renewed repeatedly. This new power was created for blocking the legal return of British citizens who have travelled to fight in foreign wars, but can be used against any citizen suspected of involvement in “terrorism”, a very broad concept under UK law. Concern over the proposals forced the government to accept a requirement of limited judicial review before issuing the order.
Much more fundamental objections remain. Imperial Britain exiled British dissident trades unionists and advocates of independence of British colonies, such as Archbishop Makarios of Cyprus. But it always did so to British controlled territory. Now, the UK asserts a power to deny British citizens the right to return to their home in the UK. It enables action against people whom the government cannot strip of British citizenship, as was done in the Pham case: this would include those who acquired British citizenship by birth in the UK.
The new power has no limit on repeated orders, raising the prospect of a British citizen remaining in exile indefinitely. Exile clashes strongly with the fundamental rights of citizenship to which Lord Mance refers. Lady Hale, who made no speech of her own in this case, last month addressed the idea of limits on Parliamentary power. If the British government were to attempt its new power of exile, the British courts may again face the argument that an Act of Parliament is insufficient to make such a fundamental change to the British constitution.
The Open Society Justice Initiative filed a written intervention in the Pham appeal, presenting arguments arising from international law on statelessness, and was represented in the Supreme Court by Freshfields Bruckhaus Deringer LLP as solicitors, and by James A. Goldston, Simon Cox and Laura Bingham, counsel of the Justice Initiative.