Case Watch: UK Supreme Court Confronts Statelessness in al-Jedda Case
By Laura Bingham
On Thursday, June 27, the Supreme Court of the United Kingdom will hear arguments arising from an attempt to denationalize a man suspected of supporting terrorism, in a case which has significance for international law on the question of statelessness. In effect, the British Home Secretary is proposing that an individual with a hypothetical past or future claim to a nationality may not be considered stateless, at least not if the Home Secretary wants to strip that person of British nationality.
The man at the center of the case, Hilal Abdul-Razzaq Ali al-Jedda, is a naturalized British citizen. In late 2007, the Home Secretary first informed al-Jedda of her intention to deprive him of British citizenship, on the ground that she suspected him of involvement in terrorist activities. Al-Jedda challenged the decision, first before the Special Immigration Appeals Commission, then before the Court of Appeal.
Al-Jedda’s lawyers successfully argued before the Court of Appeal that the Home Secretary’s order depriving him of British citizenship would render him stateless as he currently has no other nationality. The British Nationality Act of 1981, section 40(4), prevents the Home Secretary from issuing an order depriving a citizen of British nationality if the order would render the individual stateless. The Court of Appeal concluded that the Home Secretary’s order would therefore be unlawful.
The Home Secretary is now asking the Supreme Court to adopt an interpretation of section 40(4) that would allow her to denationalize a British citizen if she believes she or he could have applied for another nationality, but failed to do so. In this case, al-Jedda, who was an Iraqi citizen by birth but lost his Iraqi citizenship when he obtained British nationality in 2000, has not applied to regain Iraqi nationality, and so there is no debate over whether he is currently a national of Iraq. (Whether he reacquired Iraqi nationality automatically was already answered in the negative and is not a question before the Supreme Court.)
The Justice Initiative was granted permission to intervene in the case to aid the court in interpreting section 40(4) in line with the international framework for avoiding statelessness and protecting stateless people. Two international conventions define who is a stateless person and set standards for protecting stateless persons and preventing and reducing statelessness worldwide. The United Kingdom is a party to both conventions and has recently taken initiative in establishing a procedure for providing stateless persons with a protective legal status—in fact, one of the ironies in the Al Jedda case is that the Home Secretary’s arguments appear to contradict guidance her office has given on who qualifies as stateless in order to receive such protection. A basic tenet of interpretation under that guidance, as under international law, is that statelessness is to be determined at the present moment—“it is neither a historic nor a predictive exercise”. Al-Jedda’s failure to apply for Iraqi citizenship is relevant: it means he is not presently a citizen of that country. The Home Secretary argues that his failure to act should mean, rather, that his statelessness upon being stripped of British citizenship somehow “doesn’t count” under section 40(4).
It is crucial to furthering the aims of these international conventions that states are able to identify who is stateless: that there is a common understanding of the definition of a stateless person. Statelessness is a global problem, affecting at least 12 million people, whose solutions lie in the realm of international cooperation. In essence, the Home Secretary seeks a ruling that her power to revoke nationality is broad enough to allow her to denationalize Al Jedda, even though under international law he will become stateless if her order takes effect.
The potential impact of a decision in the government’s favor is unsettling—both in legal terms and when one pauses to consider other possible applications of the kind of discretion the Home Secretary is seeking. The UK government would not be limited to exercising this power in “national security” cases, but could order denationalizations based on any other ground, so long as denationalization is determined—by the government—to be “conducive to the public good”. The Home Secretary’s flexible standard for denationalizations under section 40(4) could likewise inspire a similar approach to decision-making in other states, including states seeking to deny protection to entire populations of stateless persons within their borders, on the theory that they may have a claim to nationality in another state.
The al-Jedda case does not stand alone even in the national context. It is one of a series of cases in which the Home Secretary has employed section 40 to denationalize British citizens in the name of the public good, almost exclusively in cases involving national security concerns. These cases raise serious due process concerns in an area of law where basic protections are thin and state operations are cloaked in secrecy. Where we do know the limits and protections of international law, these principles must be reflected to their fullest extent in national practice.
Al-Jeddah is represented by solicitors Tessa Gregory and Public Interest Lawyers, and by barristers Richard Hermer QC and Tom Hickman.
Laura Bingham is the senior managing legal officer for equality and inclusion in the Open Society Justice Initiative.