Editor: Terrorism, Deprivation of Citizenship and Statelessness Case in United Kingdom Supreme Court

This post relates to an ongoing national security case in the United Kingdom’s Supreme Court and involves jihad and terrorism and the executive’s powers of deprivation of citizenship.

This is yet another case related to terrorism. It readily demonstrates that people from diverse backgrounds are attracted to Islamic extremism and that the UK is fertile ground for breeding fanatics. The dilemma for the UK, of course, is that an increasing number of young men and women holding British citizenship are so utterly disillusioned with life that they are willing to embrace martyrdom in the name of “radical” Islam. Consequently, Prime Minister David Cameron has announced further powers to prevent jihadis from entering and exiting the UK (see more in “comment” below). Born in Mongai, Vietnam in 1983, the appellant, known only as “B2”, lived in Hong Kong with his parents prior to the family’s arrival in the UK in 1989. After claiming asylum they were granted indefinite leave to remain and later in 1995, when B2 was 12, they also acquired British citizenship. B2 and his parents never held Vietnamese passports and they never took any steps to renounce their Vietnamese nationality. In fact, the only document linking B2 to Vietnam is his birth certificate.

B2 is British educated. He attended a college of design and communications in Kent. He converted to Islam when he was 21 and it is contended that following his conversion he allegedly descended into Islamist extremism and travelled to Yemen (December 2010 – July 2011). The Security Service’s assessment is that (i) during B2’s trip to Yemen, Al-Qaeda in the Arabian Peninsula trained him as a terrorist; and (ii) if at liberty, B2 would pose an active threat to the safety and security of the UK and its population.

The Issue

As explained on the Supreme Court’s website, the issue at the heart of this case is:

Whether the order of the respondent Secretary of State for the Department (SSHD) under section 40(2) of the British Nationality Act 1981 (the 1981 Act) to deprive the appellant of British nationality rendered the appellant stateless within the meaning of section 40(4).

Under section 40(4) of the 1981 Act, the SSHD cannot make an order depriving a person of citizenship status, if she is satisfied that the order would make that person stateless. Moreover, as established by Abu Hamza v SSHD [2010] UKSIAC 23/2005 and Fransman’s British Nationality Law, Third Edition, paragraph 25.4, “stateless” in section 40(4) means de jure stateless, not de facto stateless. The wording of section 40(4) – “if he [the SSHD] is satisfied that” – needs to be construed in accordance with Article 8(1) of the Convention on the Reduction of Statelessness of 1961 (the 1961 Convention) and the statutory language does not make the SSHD’s opinion the decisive benchmark or yardstick.

A panel consisting of Lord Neuberger PSC, Lady Hale DPSC and Lords Mance, Wilson, Sumption, Reed and Carnwath JJSC is scheduled to hear this case on 18–19 November 2014.

The Deprivation Decision

Satisfied that it would be conducive to the public good, on 20 December 2011 the SSHD decided to make an order pursuant to section 40(2) of the 1981 Act – which at the time reflected substitutions made by section 4 of the Nationality, Immigration and Asylum Act 2002 (NIAA) and by section 56(1) of the Immigration, Asylum and Nationality Act 2006 – depriving B2 of his British citizenship. She did so in response to the Security Service’s evaluation that B2 had links to numerous Islamist extremists and was involved in terrorism related activities. When she served notice of decision on B2, pursuant to section 40(5), on 22 December 2011 the SSHD stated that she was satisfied that her intended order would not make B2 stateless. The SSHD also certified pursuant to section 40A(2) of the 1981 Act, that she made her decision in part in reliance on information which she thought should be withheld because its disclosure in the public domain would be contrary to the public interest.

The SSHD then deprived B2 of British nationality on the grounds set out in her earlier notice and made an order under section 40(2) of the 1981 Act and notified B2 – who was detained after service – of her intention to order his deportation to Vietnam. However, the United States of America requested that B2 be extradited to stand trial in that country and, although B2 gave notice of appeal against the deportation decision, the issue is not presently considered live. Conversely, the issue of B2’s nationality is considered live.

Proceedings Below

Consisting of Jackson, Lloyd Jones and Floyd LJJ, the Court of Appeal, [2013] EWCA Civ 616 (24 May 2013), allowed the SSHD’s appeal against the decision of the Special Immigration Appeals Commission (SIAC) where the panel (consisting of Mitting J, Allen UTJ and Mr P Nelson, see here) had allowed B2’s appeal by holding at para 19 that:

The decision of the Secretary of State to deprive the appellant of his citizenship on 22 December 2011 did make him stateless and so is not permitted under section 40(4) of the 1981 Act.

Aggrieved, the SSHD had appealed to the Court of Appeal because in her view her decision made B2 de facto stateless, but not de jure stateless and therefore it cannot make B2 stateless within the meaning of section 40(4) of the 1981 Act. She contended, in the alternative, that this could not have occurred until some time after 22 December 2011, the relevant date.

The Court of Appeal unanimously held at paras 93 and 97 that the result of the SSHD’s 22 December 2011 order was to render B2 de facto stateless but not de jure stateless and accordingly her appeal succeeded on the first ground and the second ground did not therefore arise. In delivering the judgment, Jackson LJ assured the parties at para 22 that his “conclusions are based solely on the open evidence and the open decision” and “nothing in the closed judgment” affected the Court’s reasoning.

Statelessness

A sizable chunk of the Court of Appeal’s judgment is devoted to appraising the problem of statelessness. Jackson LJ began his analysis by observing that as a matter of principle, Articles 1 and 2 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930 allow a state to determine under its own laws who its nationals are. The events of the Second World War provided impetus for defining and providing for both refugees and stateless persons and Statelessness and some of its Causes (the 1946 Memorandum) – distinguishing between de jure stateless persons (those who did not have a nationality under the law of any state) and de facto stateless persons (those who had nationality under the law of a state, but were denied the protection of the government of that state) – was therefore published by the Inter-Governmental Committee on Refugees.

After further efforts, the Refugee Convention of 1951 and the Convention relating to the Status of Stateless Persons of 1954 (establishing the obligations of Contracting States to stateless persons within their territories and related matters) came to fruition and under Article 1 the latter adopted the de jure definition of statelessness and de facto stateless persons were erroneously considered refugees. Further efforts to curb statelessness culminated in the 1961 Convention and it obliges Contracting States to grant nationality to persons who would, in a number of specified situations, otherwise be stateless. The 1961 Convention restricts the circumstances in which nationality can be lost. Under Article 8(1) “a Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless” and section 40(4) of the 1981 Act intends to put this obligation on a statutory footing in domestic UK law.

The United Nations High Commissioner for Refugees (UNHCR) is the body designated by the General Assembly to which individuals who claim the benefit of the 1961 Convention may apply for assistance for the purposes of Article 11.

Wrestling with the distinction between de jure and de facto statelessness, at para 32 et seq the Court of Appeal evaluated some criticisms regarding the distinction between these two problematic concepts. Jackson LJ agreed with UNHCR’s legal advisor Paul Weis’s opinion – as argued in The Convention Relating to the Status of Stateless Persons (1961) 10 ICLQ 255-261 – that statelessness is a purely legal concept and that it is more accurate to refer to de jure and de facto unprotected persons. But given that the terminology of the 1946 Memorandum is well-established, the Court proceeded on the basis that:

32. … de jure stateless persons means persons who are de jure unprotected by any state. In other words they fall within Article 1(1) of the 1954 Convention. De facto stateless persons means persons who possess a nationality, but are not protected by any state.

Referring to Weisbrodt and Collins, The Human Rights of Stateless Persons (2006) HRQ 254-263, Jackson LJ observed that de jure statelessness may arise because of mistakes made by law-makers, disparity between the nationality laws of different states, political problems or through other means and that de facto statelessness may also arise in a wide variety of ways. The Court noted that attempts to expand the definition of stateless persons in the 1954 Convention so as to include de facto stateless persons were unsuccessful. Reference was also made to the Massey Report 2010 where it has been argued that some categories of persons who are in fact de jure stateless have been wrongly classified in the literature as de facto stateless. Three types of persons – those not enjoying the rights arising from their nationality, those who are not able to establish their nationality and those who are attributed the nationality of a state other than their state of habitual residence – are invalidly classified as de facto stateless and “should not be considered de facto stateless at all.”

Massey develops six types of categories of persons who have problems proving their nationality and the Court of Appeal’s judgment mentions two of these, namely those whose countries may be unable or unwilling to cooperate in identifying persons who are their nationals and instances where nationality legislation may be unclear or be misinterpreted or misapplied by the executive. To celebrate the golden jubilee of the 1961 Convention, UNHCR convened a round of expert meetings on statelessness the first of which was held in May 2010 in Prato in Tuscany (the Prato Report). The Massey Report served as a prelude to this event. Jackson LJ at para 38 et seq considered that the Prato Report “contains much helpful discussion about the interpretation of Article 1(1) of the 1954 Convention” and the Court extracted paras 3 and 18 which identify the issue as not whether or not the individual has a nationality that is effective but whether or not the individual has a nationality at all. Although subtle, the distinction between not being treated as a national despite recognition and the absence of recognition are conceptually distinct problems because the first dilemma is linked to the rights attached to nationality whilst the second predicament pertains to the right to nationality itself.

In essence, within the ordinary meaning of Article 1(1), a stateless person is a person who is not considered a national by a state. Moreover, according to the Prato Report, the position under domestic law is relevant and the illegality of depriving a person of their nationality in breach of international law “is not relevant in determining whether the person is a national for purposes of Article 1(1)” because:

The alternative approach would lead to outcomes contrary to the ordinary meaning of the terms of Article 1(1) interpreted in light of the Convention’s object and purpose.

The Court of Appeal’s Rationale

Against that backdrop, at paras 42–71, Jackson LJ embarked upon a complex appraisal of Vietnamese nationality law and his lordship traced the development of the law in that country to include the following legislation: Order 53 of 1945; the 1988 Nationality Law enacted thirteen years after the re-unification of Vietnam in 1975; Decree No. 37/HDBT of 1990; the 1998 Nationality Law which followed after the new constitution of 1992; and the 2008 Nationality Law passed by the XII^th National Assembly of the Socialist Republic of Vietnam.

At the time of his birth, B2 acquired Vietnamese nationality under Order 53 and when his family travelled to Hong Kong and then to the UK this status was retained. Thereafter, no event occurred in the 1980s under Order 53 or the 1988 Nationality Law that deprived B2 of Vietnamese nationality. Equally, when he was naturalised in the UK and acquired British citizenship in 1995, he did not lose Vietnamese nationality and Jackson LJ discerned at para 74 that “B2 did not apply for or secure permission to relinquish Vietnamese nationality in accordance with Article 9 of the 1988 Law.” The upshot was that the 1990 Decree applied to him and he became a dual Vietnamese and British national and whilst he was resident in the UK he nevertheless remained Vietnamese and retained the protection of that country’s government. When the 1998 law entered into force the following year, the position did not change and B2 did not obtain permission or seek permission to renounce his Vietnamese nationality and the entering into force in 2009 of the 2008 law did not change anything.

When the SSHD deprived B2 of his British nationality in 2011, Vietnam rejected him as a Vietnamese citizen and SIAC found this to be deliberate. Yet Vietnam has done nothing since to deprive B2 of his Vietnamese nationality and that country maintains that he is not Vietnamese and did not hold that its nationality at the date of the SSHD’s decision.

Like SIAC, Jackson LJ accepted at para 69 the position of B2’s expert, which was not under attack, that “Vietnam is a communist state, in which the executive controls the courts and not vice versa.” Equally, at para 70 his lordship recalled that SIAC considered it “naïve” to think that executive “decisions [in Vietnam] could be effectively challenged in the courts.”

In answering the critical question – does the SSHD’s decision of 22 December 2011 render B2 de jure stateless or de facto stateless? – the Court of Appeal rather preferred the SSHD’s position that B2 was de facto stateless. (This was so notwithstanding Jackson LJ’s acceptance at para 87 that the arguments “on both sides are powerful ones.”) The Court of Appeal observed that Mitting J’s questioning of the appellant’s expert (Ambassador Nguyen Quy Binh) resulted in the conclusion that the ambiguous state of the 1988 Nationality Law in Vietnam allowed the government to pick and choose “in practice” (but not “openly and legally”) which people of Vietnamese origin it would accept back into Vietnam. It was argued for the SSHD that the same applied to the 2008 Law and B2’s case was a classic example of Vietnam’s regime rendering certain citizens de facto stateless. Holding that the two Massey categories relied upon by B2 were not engaged because Vietnam’s cooperation was not required and that the law of Vietnam was not ambiguous, Jackson LJ also held that B2 had been rendered de facto stateless but not de jure stateless because:

88. The position under Vietnamese nationality law is tolerably clear. B2 retained his Vietnamese nationality through all the events of the 1980s and the 1990s. The 2008 Law did not change B2’s legal status. The fact that in practice the Vietnamese Government may ride roughshod over its own laws does not, in my view, constitute “the operation of its law” within the meaning of Article 1(1) of the 1954 Convention. I accept that the executive controls the courts and that the courts will not strike down unlawful acts of the executive. This does not mean, however, that those acts become lawful.

91. The Vietnamese Government has now, apparently, decided to treat B2 as having lost his Vietnamese nationality. They have reached this decision without going through any of the procedures for renunciation, deprivation or annulment of Vietnamese nationality as set out in the 2008 Law and its predecessors. I do not accept that this can be characterised as the “position under domestic law” as that phrase is used in paragraph 18 of the Prato Report.

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. 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.

Immigration Act 2014

It is interesting that section 66 (Deprivation of citizenship: conduct seriously prejudicial to the interests of the UK) of the Immigration Act 2014 (the 2014 Act) adds to the SSHD’s existing armoury as regards depriving a person of their citizenship. Under the 1981 Act, deprivation was achievable in cases where either a person has acquired British citizenship using fraud, false representation or concealment of a material fact (section 40(3)) or, as in the case of B2, where the SSHD is satisfied that deprivation is “conducive to the public good” and the person would not be left stateless as a result (sections 40(2) and 40(4)).

Section 66(1) of the 2014 Act amended section 40 of the 1981 Act by inserting new subsection (4A) to create a sub-category of cases which enables the SSHD to deprive, by order, a person of their British citizenship status – irrespective of whether or not it will render them stateless – where the person has:

• Acquired citizenship as a result of naturalisation; and

• Conducted themselves in a manner seriously prejudicial to the vital interests of the UK (and so for this reason it is conducive to the public good to deprive that person).

The order requires the SSHD to have reasonable grounds to believe that the person is able, under the law of a country or territory outside the UK, to become a national of such a country or territory. Section 66(2) of the 2014 Act provides that when deciding to make an order under of section 40(2) of the 1981 Act, the SSHD may take into account the manner in which a person conducted himself before the section 66 provision came into force.

However, since power remains concentrated in the hands of the executive, section 40B is inserted into the 1981 Act by section 66(3) of the 2014 Act to ensure that the SSHD is required to arrange a review – and its outcome to be laid before Parliament initially after one year and subsequently after every three years – of the use of the section 40(4A) power.

Overall, section 66 of the 2014 Act aims to deal with the most serious cases – related to national security, terrorism, espionage or taking up arms against British or allied forces. Provided that there are reasonable grounds to believe that the person concerned is able to become a national of another country or territory, section 66 empowers the SSHD to deprive an individual of British citizenship acquired by means of naturalisation irrespective of whether or not deprivation will render the person stateless. The UK, which ratified the 1961 Convention on 29 March 1966, believes that section 66 of the 2014 Act achieves superior alignment with the 1961 Convention (which allowed states to declare on ratification that they retain the right to deprive a person and render them stateless in specific circumstances). Upon ratification, the UK explicitly retained the right to deprive where the person either:

• Has, in regard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another state, or

• Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.

Without a doubt, B2 should be a firecracker case in the UK Supreme Court. Of course, the larger socio-political questions in all of the above are: what motivates this fresh generation of jihadis, many of whom are not even born into Islam, to travel faraway to harsh and inhospitable places like Afghanistan, Yemen, Syria, Somalia etc to participate in absolute insanity? Equally, do they even care if they are deprived of British citizenship?

Comment

As is well-known, just over a year ago in SSHD v Al-Jedda [2013] UKSC 62 – an infamous case about an Iraqi who entered the UK and claimed asylum and whose epic legal battles adorn the law reports for us to admire – remembering the manner in which the Jews of Germany were stripped of their citizenship of the German Reich under the Reich Citizenship Law of 1935, the Supreme Court chose to describe statelessness as “evil”. (This is a fitting description indeed because in its Global Action Plan to End Statelessness 2014-2024, UNHCR explains that “at least 10 million people worldwide continue to suffer the privations and indignity of being denied nationality.”) The Court therefore upheld the Court of Appeal’s decision to quash the SSHD’s order purporting to deprive Mr Al-Jedda of British citizenship because its effect would be to make him stateless as he had automatically lost his Iraqi nationality under that country’s law. The Court held that the question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship.

Interestingly, Lord Wilson JSC – with whom Lord Neuberger PSC, Lady Hale DPSC, and Lords Carnwath and Mance JJSC agreed – also mentioned B2’s case as authority in relation to the use of the word “satisfied” in section 40(4) and the Court observed at para 30 that in performing its function the appellate body must “determine for itself whether the ground exists and/or whether the order would make the person stateless … and not simply to determine whether she had reason to be satisfied of those matters.”

In Al-Jedda, both the Supreme Court at para 22 and the Court of Appeal at paras 137-40 observed that by adding subsection (4) to section 40 of the 1981 Act, “Parliament went further than was necessary in order to honour the UK’s existing international obligations”. Section 4(1) of the NIAA amended section 40 of the 1981 Act and introduced the prohibition on rendering someone stateless on grounds relating to their behaviour after acquiring citizenship. The amendment, which entered into force on 1 April 2003, essentially reflected the terms of Article 7(1)(d) of the European Convention on Nationality 1997, which the UK was considering signing but did not sign.

So section 66 of the 2014 Act turns the clock back to the pre-April 2003 position and is a retrograde measure despite the logic that the UK had been too generous in the past. But then again, from the SSHD’s perspective, since an abundance of British passport holders are so disgruntled with the “British way of life” that they are turning to jihad to murder innocent people, perhaps it is not a step backwards after all?

As noted above, the situation is particularly explosive because during his G20 trip to Australia, a country which has just passed its own Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, David Cameron announced fresh powers to stop suspected “gap year” jihadis from entering the UK unless they agreed to strict controls. On the other hand, he has not said that his plans, which envisage carriers’ liability for airlines transporting radicalised individuals, would make British born jihadis stateless.

One problem with existing legislation as regards deprivation of citizenship is that it is toothless against British born jihadis and can only be used against suspected terrorists such as B2 who have become British citizens through the process of naturalisation. The UK’s new Counter-Terrorism Bill, which is expected to be published by the end of this month, and has been in the offing since September, is also aimed at empowering the authorities to stop jihadis from exiting the UK. These measures have been vetted as “legal” by Lord Carlile – who has ironically just suffered quite a massive defeat at the government’s hands in R (Lord Carlile of Berriew & Ors) v SSHD [2014] UKSC 60 where the Supreme Court dismissed his appeal regarding the Iranian dissident Mrs Maryam Rajavi, the head of the Mojahedin e-Khalq organisation, entering the UK at the invitation of hundreds of parliamentarians.

This post, which was first published on UK Immigration Law Blog, has been contributed by the Editor who is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law and is an Advocate of the High Court of Sindh

Email: pakistanhorizon@hotmail.co.uk