JUDGMENT
Secretary of State for the Home Department
(Appellant) v Al-Jedda (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Wilson
Lord Carnwath
JUDGMENT GIVEN ON
9 October 2013
Heard on 27 June 2013
Appellant Respondent
Jonathan Swift QC Richard Hermer QC
Rodney Dixon Guy Goodwin-Gill
Tom Hickman
(Instructed by Treasury (Instructed by Public
Solicitors) Interest Lawyers)
Intervener
James A. Goldston
Laura Bingham
Simon Cox
(Instructed by Open
Society Justice Initiative)
LORD WILSON (with whom Lord Neuberger, Lady Hale, Lord Mance and
Lord Carnwath agree)
A: INTRODUCTION
1. The Secretary of State for the Home Department cannot make an order
which deprives a person of his British citizenship on the ground that it is
conducive to the public good if she is satisfied that the order would make him
stateless. This appeal seeks to raise the question: if at the date of the Secretary of
State’s order it were open to the person to apply for citizenship of another state and
if that application would necessarily be granted, is it her order which would make
him stateless or is it his failure to make the application which would do so?
2. The Secretary of State appeals against an order of the Court of Appeal
(Richards, Stanley Burnton and Gross LJJ) dated 29 March 2012, by which it
quashed her order dated 14 December 2007 which purported to deprive Mr AlJedda (“the respondent”) of his British citizenship.
3. The Secretary of State made her order pursuant to section 40(2) of the
British Nationality Act 1981 (“the Act”). In its current form, which reflects
substitutions made by section 4 of the Nationality, Immigration and Asylum Act
2002 and by section 56(1) of the Immigration, Asylum and Nationality Act 2006,
section 40 of the Act provides as follows:
“40. Deprivation of citizenship
(1) …
(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 –
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(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.
(5) Before making an order under this section in respect of
a person the Secretary of State must give the person
written notice specifying –
(a) that the Secretary of State has decided to
make an order,
(b) the reasons for the order, and
(c) the person’s right of appeal under section
40A(1) or under section 2B of the
Special Immigration Appeals
Commission Act 1997 (c 68).
(6) …”
So the issue is whether the Secretary of State’s order in respect of the respondent
was invalidated by subsection (4) above.
B: HISTORY
4. The respondent was born in Iraq in 1957 and inherited Iraqi nationality. In
1992 he and his first wife came to the UK and sought asylum. In 1998 they and
their four children were granted indefinite leave to remain in the UK and on 15
June 2000 they were granted British nationality. The effect of his acquisition of
British nationality was that the respondent automatically lost his Iraqi nationality
pursuant to article 11 of the Iraqi Nationality Law No 43 of 1963.
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5. In 2002, following divorce from his first wife and while he was temporarily
abroad, the respondent married a second wife, by whom he had a child; and there
he also entered into a polygamous marriage with a third wife, by whom he had
three children. In 2008 he was divorced from his second wife. He is currently
living in Turkey with his third wife and all eight of his children.
6. In September 2004 the respondent travelled from the UK to Iraq. In October
2004 US forces in Iraq arrested him and transferred him into the custody of British
forces. For more than three years, namely until 30 December 2007, British forces
detained him in Iraq, without charge, on grounds of his suspected membership of a
terrorist group. Following his release he remained in Iraq until 3 February 2008,
when he travelled to Turkey. In proceedings for judicial review which he had
issued in 2005 the respondent contended that his internment violated his rights
under article 5(1) of the European Convention on Human Rights. His contention
was rejected both by the Divisional Court of the Queen’s Bench Division and on
his appeal to the Court of Appeal and also, by order dated 12 December 2007, on
his further appeal to the House of Lords (R (Al-Jedda) v Secretary of State for
Defence (JUSTICE intervening) [2007] UKHL 58, [2008] AC 332). Much later,
however, namely on 7 July 2011, the Grand Chamber of the European Court of
Human Rights held that his internment had violated his rights under article 5(1):
Al-Jedda v United Kingdom (2011) 53 EHRR 789.
7. In 2006 the respondent had brought a separate claim for habeas corpus in
which he asserted that his internment had become unconstitutional under Iraqi law.
Following his release from detention he re-pleaded his claim as one for damages.
In due course the claim was dismissed and the Court of Appeal upheld the
dismissal (Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758,
[2011] QB 773).
8. The order by which the Secretary of State deprived the respondent of
British citizenship was therefore made shortly prior to his release from internment.
As required by section 40(5) of the Act, her order was preceded by a letter, dated
12 December 2007, by which she notified him that she had decided to make the
order on the ground that, for four reasons which she specified, she was satisfied
that it would be conducive to the public good. Pursuant to section 40A(2) of the
Act, she certified in the letter that the decision was taken wholly or partly in
reliance on information which in her opinion should not be made public, with the
result that, under section 2B of the Special Immigration Appeals Commission Act
1997, his right of appeal lay to that Commission (“the Commission”) rather than to
the First Tier Tribunal (“the Tribunal”).
9. In the domestic proceedings which, as described above, ended in the House
of Lords on 12 December 2007, it was recorded as a fact that the respondent had
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dual British and Iraqi nationality (Lord Bingham of Cornhill, para 1). Apparently it
was not then understood that, upon acquiring British nationality, the respondent
had lost his Iraqi nationality. When, however, on 11 January 2008 he issued his
notice of appeal to the Commission against the Secretary of State’s order dated 14
December 2007, one of his grounds of appeal was that the order had made him
stateless and was therefore void. The Commission resolved to treat this ground as
a preliminary issue and, having refused the respondent’s application for an
adjournment, it determined it on 23 May 2008. The Commission found that, upon
acquiring British nationality, the respondent had indeed lost his Iraqi nationality;
and that fact then became no longer in issue. The Commission, however,
proceeded to conclude (or, more strictly, to hold that the respondent had not
established otherwise on the balance of probabilities) that he had regained Iraqi
nationality under article 11(c) of the Law of Administration for the State of Iraq
for the Transitional Period (“the TAL”) which had been in force between June
2004 and May 2006. The Commission therefore rejected the respondent’s
contention that the Secretary of State’s order had made him stateless. By further
judgments, open and closed, dated 7 April 2009, the Commission rejected the
respondent’s remaining grounds of appeal against the order; and the dismissal of
the appeal enabled the respondent to appeal to the Court of Appeal against the
rejection of his contention that the order had made him stateless. On 12 March
2010 the Court of Appeal upheld his submission that the Commission had been
wrong to refuse his application for an adjournment of the hearing in May 2008 and
the court directed it to rehear the issue ([2010] EWCA Civ 212).
10. On 26 November 2010 the Commission, differently constituted, again
concluded that the respondent had regained Iraqi nationality prior to the date of the
Secretary of State’s order, which had therefore not made him stateless. It found
that he had regained it automatically either under article 11(c) of the TAL or under
article 10(1) of the Iraqi Law of Nationality 2006 which had in effect replaced the
TAL. In the light of its conclusion the Commission observed that it had no need to
address the Secretary of State’s alternative contention, raised before it for the first
time, that, if on 14 December 2007 the respondent had not been an Iraqi national, it
had been open to him to regain it by application and that it had been his failure to
make the application, rather than her order, which had made him stateless.
11. By its order under current appeal, the Court of Appeal set aside, as
erroneous in law, the Commission’s conclusion that prior to 14 December 2007 the
respondent had automatically regained Iraqi nationality, whether under article
11(c) or under article 10(1). This court has not permitted the Secretary of State to
challenge the Court of Appeal’s disposal of that issue. But the effect of its disposal
was to require that court to address the Secretary of State’s alternative contention,
which she had preserved by a respondent’s notice. In a judgment with which
Stanley Burnton and Gross LJJ agreed, Richards LJ rejected the alternative
contention in the following terms:
Page 5
“120. I am prepared to assume that if an application were made for
the restoration of the appellant’s Iraqi nationality it would be bound
to succeed, though the point is by no means free from doubt. I also
put to one side the objections raised by Mr Hermer as to the
practicality of the appellant making an application at all: he
submitted that an application would have to be made by the appellant
in person, and for that purpose the appellant would have to enter Iraq
legally and would therefore require a visa, which would lie in the
discretion of the State and could be refused on national security
grounds.
121. I would reject the Secretary of State’s argument for the
straightforward reason that section 40(4) requires the Secretary of
State (and, on appeal, the court) to consider the effect of the order
made under section 40(2): would the order make the person
stateless? If Iraqi nationality was not restored to the appellant
automatically under the Iraqi legislation considered above, he was
not an Iraqi national at the time of the order: his only nationality at
that time was British nationality. The effect of the order would
therefore be to make him stateless. That would be the effect of the
order irrespective of whether he could previously have acquired
another nationality had he chosen to do so, or whether he could do so
in the future.”
It is against this determination that the appeal is brought.
C: STATELESSNESS
12. The evil of statelessness became better understood following the re-drawing
of national boundaries at the end of the two world wars of the twentieth century
and following, for example, the Reich Citizenship Law dated 15 September 1935
which provided that all Jewish people should be stripped of their citizenship of the
German Reich. The Universal Declaration of Human Rights, adopted by the
United Nations on 10 December 1948, provides in article 15:
“(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality.”
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The European Convention on Human Rights 1950 does not identify a right to a
nationality but the European Court of Human Rights recognises that the arbitrary
denial of citizenship may violate the right to respect for private life under Article 8
of the Convention (Karassev v Finland, Application No 31414/96, 12 January
1999). In his dissenting judgment in Perez v Brownell, 356 US 44, 64 (1958),
Warren CJ described a right to nationality as “man’s basic right for it is nothing
less than the right to have rights”. Although the international growth of human
rights during the past fifty years has to some extent succeeded in establishing that a
person’s right to have rights stems, instead, from his existence as a human being,
worldwide legal disabilities with terrible practical consequences still flow from
lack of nationality: see the illuminating article by Weissbrodt and Collins entitled
“The Human Rights of Stateless Persons”, Human Rights Quarterly, 28 (2006)
245.
13. On 1 May 2013 the Home Office issued guidance on “Applications for
leave to remain as a stateless person” referable to changes in Immigration Rules
which had recently come into effect. It states, at para 2(1):
Statelessness occurs for a variety of reasons, including
discrimination against minority groups in nationality
legislation, failure to include all residents in the body
of citizens when a state becomes independent (state
succession) and conflicts of laws between states. The
dissolution of the Soviet Union and the Yugoslav
Federation in the early 1990’s, for example, caused
internal and external migration that is reported to have
left hundreds of thousands stateless throughout Eastern
Europe and Central Asia. In some countries,
citizenship is lost automatically after prolonged
residence in another country. The absence of proof of
birth, origins or legal identity can also increase the risk
of statelessness.
Statelessness has been estimated to affect up to 12
million people worldwide. Possession of nationality is
essential for full participation in society and a
prerequisite for the enjoyment of the full range of
human rights. Those who are stateless may, for
example, be denied the right to own land or exercise
the right to vote. They are often unable to obtain
identity documents; they may be detained because they
are stateless; and they can be denied access to
education and health services or blocked from
obtaining employment.”
Page 7
14. Until 1964 the ability of the Secretary of State in limited circumstances to
deprive a person of British citizenship acquired by naturalisation or registration
was not qualified by any obligation not thereby to make that person stateless. A
power to deprive had been introduced by section 7(1) of the British Nationality
and Status of Aliens Act 1914, which had enabled the Secretary of State to revoke
a certificate of naturalisation on the ground that it had been obtained by
misrepresentation or fraud. Section 1 of the British Nationality and Status of
Aliens Act 1918 had converted the power into a duty and had extended it to
grounds of public interest: it was to apply to acts of disloyalty to the Crown and,
provided that the Secretary of State was satisfied that the continuance of the
certificate was not conducive to the public good, to any of five further facts. In
turn these provisions were replaced by section 20 of the British Nationality Act
1948, which converted the Secretary of State’s duty back into a power and which
specified grounds for its exercise which loosely reflected those which had been
identified in 1914 and 1918.
15. Shortly after 1948, however, came two important United Nations
conventions in relation to statelessness.
16. The first was the Convention relating to the Status of Stateless Persons
adopted on 28 September 1954 (“the 1954 Convention”). The UK signed it on that
day and ratified it on 16 April 1959; and it came into force on 6 June 1960. It
recited the “profound concern” of the United Nations for stateless persons and the
desirability of regulating and improving their status. By article 1(1), it defined a
stateless person in terms which have become internationally authoritative, namely,
as a “person who is not considered as a national by any State under the operation
of its law”. By the articles which followed, it identified a minimum level of
treatment in specified respects which contracting states were required to afford to
stateless persons within their territories. But it did not address the deprivation of
citizenship when such was to cause statelessness.
17. The second was the Convention on the Reduction of Statelessness adopted
on 30 August 1961 (“the 1961 Convention”). The UK signed it on that day and
ratified it on 29 March 1966; and it came into force on 13 December 1975.
Concerned, as its title suggests, with the reduction of statelessness rather than with
the rights of stateless persons, the 1961 Convention obliged states to grant
nationality to certain persons who would otherwise be stateless. But it also
addressed the deprivation of citizenship when such was to cause statelessness.
Article 8(1) prohibited a state from depriving a person of his nationality if such
was to cause him to be stateless. Para 2 of the article specified two exceptions to
the prohibition, of which the second was the situation in which the nationality had
been obtained by misrepresentation or fraud. Para (3)(a) of the article provided the
opportunity for a state to escape more widely from the prohibition if (i) at the time
of its ratification of the Convention, its law were to provide for deprivation on, in
Page 8
effect, the ground of conduct seriously prejudicial to the vital interests of the state
and (ii) at the time of ratification the state declared its retention of the right to
deprive a person of citizenship on that ground.
18. By 1964 the UK had resolved to ratify the 1961 Convention. Parliament
passed the British Nationality (No 2) Act 1964 in order (as was noted in
Halsbury’s Statutes, Second Edition, Vol 44, p 80) to enable the government to
ratify it. The Act implemented the obligation cast by the 1961 Convention to grant
nationality to certain persons who would otherwise be stateless. In relation to the
deprivation of citizenship the government proposed that, when ratifying the
Convention, it should make the declaration permitted by article 8(3)(a). It realised
however that, notwithstanding the proposed declaration, three of the grounds for
deprivation set by the 1948 Act would fall outside the exemptions permitted by the
1961 Convention and could therefore not form the basis of an order if its effect
would be to make the person stateless. By section 4(2) of the 1964 Act two such
grounds for deprivation were abolished altogether. Parliament resolved to maintain
the third ground (namely that, within five years of naturalisation, the person had
been sentenced to imprisonment for not less than a year: section 20(3)(c) of the
1948 Act); so, by section 4(1) of the 1964 Act, it provided that the Secretary of
State could not make an order for deprivation on that ground “if it appears to him
that that person would thereupon become stateless”. Thus was the link between
deprivation and statelessness first forged in domestic law.
19. Upon ratification of the 1961 Convention on 29 March 1966, the UK
Government duly made the declaration permitted by article 8(3)(a) of it.
20. The provisions for deprivation of citizenship in section 20 of the 1948 Act
and section 4 of the 1964 Act were in effect consolidated in the original version of
section 40 of the Act.
21. On 6 November 1997 the Council of Europe promulgated the European
Convention on Nationality. Article 7(1) provided that a contracting state could not
deprive a person of its nationality save on seven specified grounds, of which the
second was that the person had obtained nationality by misrepresentation or fraud
and the fourth was that his conduct had been seriously prejudicial to the vital
interests of the state. But, save in relation to the second ground, para 3 of article 7
prohibited deprivation if such was to cause statelessness. Thus no escape from the
prohibition was permitted in relation, for example, to the fourth ground, which
reflected the public interest ground on which, in accordance with the 1961
Convention, the UK had retained its right to deprive even when such was to cause
statelessness.
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22. The UK has not ratified nor even signed the European Convention on
Nationality. But, as Lord Falconer of Thoroton informed a Committee of the
House of Lords on 8 July 2002 (Hansard, HL Debs, vol 637, col 537), the
government then hoped to ratify it. He was promoting the bill which became the
Nationality, Immigration and Asylum Act 2002. The aspiration to ratify the
European Convention explains the Act’s dramatic expansion of the prohibition
against orders for deprivation when such were to cause statelessness. By section
4(1), fresh sections 40 and 40A were substituted for the original version of section
40 of the Act. The grounds for making an order for deprivation were reduced to
two. The first remained misrepresentation or fraud in obtaining citizenship and, as
before, the prohibition against orders which caused statelessness did not extend to
orders on this ground: section 40(3) and (4), set out at para 3 above. The second,
namely the public interest ground, echoed the terms of the European Convention in
referring to acts “seriously prejudicial to the vital interests” of the UK (section
40(2)(a)). By section 56 of the Immigration, Asylum and Nationality Act 2006,
however, this second ground was recast into its current form, namely that
“deprivation is conducive to the public good”: section 40(2), set out at para 3
above. For present purposes, however, the crucial change wrought by the 2002 Act
was the fresh subsection (4), set out at para 3 above, which prohibited an order on
the second ground if the Secretary of State was satisfied that it would make a
person stateless. It is clear therefore, that, in enacting the subsection, Parliament
went further than was necessary in order to honour the UK’s existing international
obligations.
D: PREMISE
23. The Secretary of State invites the court to determine the appeal on a
premise. It is that on 14 December 2007 the respondent could have applied to the
Iraqi authorities for restoration of his Iraqi nationality; that under Iraqi law he then
had a right to have it restored to him; and that its restoration would have been
effected immediately. Pressed by the court to explain whether her argument
extended to a person’s right to obtain a nationality never previously held – such as,
perhaps, a Jewish person’s right to obtain Israeli nationality or a wife’s right to
obtain the nationality of her husband – Mr Swift QC, on behalf of the Secretary of
State, explained that the argument did not extend beyond the restoration of a
former nationality. Pressed further to explain whether the argument extended to a
person who, prior to her order, had had a right to secure the restoration of his
former nationality but who, by the date of the order, had lost that right, Mr Swift
explained that the focus was upon what the person could achieve in response to the
order and thus that the argument did not extend that far.
24. It was Mr Swift’s submission at the hearing (which the Secretary of State
has subsequently withdrawn: see para 27 below) that if, on the suggested premise,
it were to allow the appeal, this court should remit the respondent’s appeal against
Page 10
the order for deprivation back to the Commission for it to consider whether the
premise is valid as a matter of Iraqi law. Mr Swift stressed that the Commission’s
two previous lengthy hearings were concerned with whether on 14 December 2007
the respondent had Iraqi nationality, not with whether he then had a right to secure
its restoration.
25. An appellate court has no need to address argument founded on a premise
which it considers unrealistic and, in the absence of any other ground for the
appeal, can dismiss it without doing more than to explain why it considers the
premise to be unrealistic. In my view, at least on the findings made below, the
present appeal comes close to deserving that unusual treatment. In rejecting the
Secretary of State’s contention that the respondent had regained Iraqi nationality
automatically under article 10(1) of the Iraqi Law of Nationality 2006, which was
in force on 14 December 2007, Richards LJ said:
“117. In my judgment, the relevant factors come down strongly in
favour of the view that the Iraqi courts would find the appellant’s
situation to be covered by Article 10(3), not by Article 10(1), and
that the restoration of his Iraqi nationality depends on his meeting
the conditions of Article 10(3), including the making of an
application for its restoration.”
Article 10(3) provides:
“An Iraqi who renounces his Iraqi nationality may regain it, if he
legally returns to Iraq and stays there for at least one year. The
Minister may, on expiry thereof, consider him to have acquired Iraqi
nationality from the date of his return if he submits an application to
regain Iraqi nationality before the end of the aforementioned period.”
It is clear, therefore, that paragraph (3) of the article would have required the
respondent (a) to return to Iraq legally, (b) to stay there for at least one year, as
well as (c) to apply in the course of the year for restoration of his Iraqi nationality.
In the event that the respondent fulfilled these requirements, the Minister “may”
restore Iraqi nationality to him, with retrospective effect to the date of his return;
and, although the Court of Appeal made no finding in this regard, Mr Swift has not
taken issue with the contention of Mr Hermer QC, on behalf of the respondent, that
in the end all the experts who gave evidence at the second hearing before the
Commission were agreed that, as one would expect, the word “may” connotes that
the Minister nevertheless retains a discretion to refuse the application.
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26. It seems to me, therefore, that there was an element of indulgence on the
part of the Court of Appeal towards the Secretary of State in its accession to her
invitation to proceed on the suggested premise; and that, were it to proceed
likewise, this court would be extending an analogous indulgence. On balance,
however, and in the light of the time, effort and expense which has now been
devoted to the substantive argument, I consider that this court should adopt the
suggested premise and proceed to determine the clean point, namely whether an
order for deprivation made against a person who, at its date, can immediately, by
means only of formal application, regain his other, former, nationality is invalid
under section 40(4) of the Act.
27. I add, as a postscript to this section of the judgment, that following the
hearing in this court the Secretary of State has drawn to its attention what she
contends to be important further information recently provided to her by the Iraqi
authorities. It is that on 20 January 2008, namely three weeks after his release, the
respondent applied in Baghdad for an Iraqi passport; that his application form, a
photocopy of which the Secretary of State has produced to the court, shows that it
was accompanied by a certificate of his Iraqi nationality purportedly issued on the
same date in Kirkuk; that on 28 January 2008 the Iraqi authorities issued a
passport, number G1739575, to the respondent; and that the passport is genuine
and betokens a valid grant of nationality to the respondent. The information has
emboldened the Secretary of State to withdraw Mr Swift’s submission that if, on
the suggested premise, it were to allow the appeal, the court should remit the
respondent’s appeal to the Commission. For she suggests that the new information
incontrovertibly demonstrates the validity of the premise.
28. When asked by the court to comment on these allegations, the respondent,
by his solicitors, has said:
(a) from an early stage of the protracted proceedings referable to his
appeal against the Secretary of State’s order, he had averred that, in
order to travel from Iraq to Turkey on 3 February 2008, he had used
a “fake” Iraqi passport: see, for example, his witness statement dated
10 October 2008 which was placed before the Commission;
(b) in 2008 he had also filed a report by a Turkish lawyer who stated that
she had reviewed a scanned copy of what purported to be an Iraqi
passport referable to him issued in Baghdad on 28 January 2008 and
stamped with a Turkish entry visa dated 3 February 2008;
(c) in the course of cross-examination of him at a hearing before the
Commission in January 2009 Mr Swift had never sought to challenge
Page 12
his assertion that the Iraqi passport by which he had travelled to
Turkey was fake;
(d) in January 2008, in Kirkuk, he had in fact acquired two fake
passports, one in his name and one in another name, on the black
market by payment of about US$750 which he borrowed from his
family;
(e) he had provided his payee with details about himself and
photographs of himself but not with a certificate of Iraqi nationality
because he did not have one;
(f) the fake passport in his own name, which the payee provided to him,
was indeed numbered G1739575 and it stated that it had been issued
on 28 January 2008; this was the passport which he had elected to
use for his travel to Turkey on 3 February 2008;
(g) he is unaware of the documents which his payee may have
completed or caused to be completed in the course of procuring the
passports;
(h) he, the respondent, never completed the application form a copy of
which the Secretary of State has produced to the court and he has
never previously seen it;
(i) the passport G1739575 is therefore fake, by which he appears to
mean that it was forged, or, more probably, that it was fraudulently
obtained; and
(j) since 2000 he has never held Iraqi nationality and in the above
circumstances the passport is no evidence to the contrary.
29. It is not the function of this court to resolve an issue whether an Iraqi
passport was regularly obtained and therefore betokens a valid grant of nationality
under Iraqi law. In my view it should set the issue to one side and, not that it
matters, should therefore resist concluding that the Secretary of State’s new
allegations add significantly to the validity of the suggested premise upon which
the argument is founded. Were this appeal to be dismissed, the Secretary of State
might perhaps make a further deprivation order on the basis that, in the light of the
passport, no such order would now make the respondent stateless. He would
Page 13
evidently dispute that conclusion and it appears that he might also contend that the
Secretary of State is estopped from alleging the validity of the passport at so late a
stage. This court should make no comment on any of these possibilities.
E: ARGUMENT
30. The Secretary of State places great weight on the word “satisfied” within
the terms of the prohibition in section 40(4) of the Act against making an order for
deprivation “if [she] is satisfied that the order would make a person stateless”. In
providing for her satisfaction in this regard, the subsection replicates the
requirement in subsections (2) and (3) that she be “satisfied” of the existence of
one or other of the two grounds for making the order. The word “satisfied” in the
subsections should, if possible, be given some value. I confess, however, that I do
not find it easy to identify what that value should be. Parliament has provided a
right of appeal against her conclusion that one or other of the grounds exist and/or
against her refusal to conclude that the order would make the person stateless; and
it has been held and is common ground that such is an appeal in which it is for the
appellate body to determine for itself whether the ground exists and/or whether the
order would make the person stateless (albeit that in those respects it may choose
to give some weight to the views of the Secretary of State) and not simply to
determine whether she had reason to be satisfied of those matters (B2 v Secretary
of State for the Home Department [2013] EWCA Civ 616, Jackson LJ, para 96).
Mr Hermer suggests that the word “satisfied” means only that the Secretary of
State must bring her judgement to bear on the matters raised by the subsections.
His suggestion may afford some slight significance to the word in subsections (2)
and (3). But does it work in relation to subsection (4)? If an order would make a
person stateless but the Secretary of State has failed even to bring her judgement to
bear on the possibility of that consequence, the order can hardly escape invalidity
on the basis that the Secretary of State was never satisfied that the order would
have that effect. Irrespective, however, of whether the word “satisfied” in
subsection (4) can sensibly be afforded any significance at all, I am clear that it
cannot bear the weight which Mr Swift seeks to ascribe to it. He contends that it
confers latitude upon the Secretary of State – and, in the event of an appeal, upon
the Tribunal or the Commission – to look beyond the ostensible effect of the order
to the active cause of any statelessness and, in particular, to the facility of the
person to secure restoration of his previous nationality. But a requirement that I
should be satisfied of a fact does not enlarge or otherwise alter the nature of the
fact of which I should be satisfied. Whether the requirement is that the fact should
exist or that I should be satisfied of it, the nature of the fact remains the same; it is
only the treatment of the fact in my mind which, subject to the context, is governed
by the word “satisfied”.
31. Although the word “satisfied” therefore adds nothing to it, the Secretary of
State’s argument still remains that section 40(4) requires the “active” or “real”
Page 14
cause of any statelessness to be identified. The word in the subsection is “make”
and the argument is that, although no doubt a number of factors contributed to
“making” the respondent stateless on 14 December 2007 (including, presumably,
even his initial loss of Iraqi nationality by acquisition of British nationality in
2000), the subsection requires identification of the factor which “actively” or
“really” made him stateless, namely (if such it was) his failure to secure immediate
restoration of his Iraqi nationality. The argument is said to reflect a properly
purposive construction of the subsection: where a ground for making a deprivation
order exists, why disable the Secretary of State from making it in circumstances in
which it remains open to the person so easily and so immediately to avoid
becoming stateless? Does the law (asks Mr Swift) allow him to complain of a
state of affairs of his own “making”?
32. I reject this argument. Section 40(4) does not permit, still less require,
analysis of the relative potency of causative factors. In principle, at any rate, the
inquiry is a straightforward exercise both for the Secretary of State and on appeal:
it is whether the person holds another nationality at the date of the order. Even that
inquiry may prove complex, as the history of these proceedings demonstrates.
But a facility for the Secretary of State to make an alternative assertion that, albeit
not holding another nationality at the date of the order, the person could, with
whatever degree of ease and speed, re-acquire another nationality would mire the
application of the subsection in deeper complexity. In order to make his argument
less unpalatable to its audience, Mr Swift, as already noted, limited it to the reacquisition of a former nationality, as opposed to the acquisition of a fresh
nationality. But, with respect, the limitation is illogical; if valid, his argument
would need to extend to the acquisition of a fresh nationality. Yet a person might
have good reason for not wishing to acquire a nationality available to him (or
possibly even to re-acquire a nationality previously held by him).
33. In section 12 of the Act Parliament provided for the renunciation of British
citizenship by declaration and for the declaration to be registered. Article 7 of the
1961 Convention had required a renunciation to be ineffective unless the person
“possesses or acquires” another nationality and, by section 12(3), Parliament
implemented that requirement in the following terms:
“A declaration made by a person in pursuance of this section shall
not be registered unless the Secretary of State is satisfied that the
person who made it will after the registration have or acquire some
citizenship or nationality other than British citizenship; and if that
person does not have any such citizenship or nationality on the date
of registration and does not acquire some such citizenship or
nationality within six months from that date, he shall be, and be
deemed to have remained, a British citizen notwithstanding the
registration.”
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For present purposes the significance of the subsection is that, as an addition to the
person who will “have” another nationality on the date of registration, Parliament,
reflecting the terms of the 1961 Convention, there refers to the person who will
“acquire” another nationality. Parliament would have been capable of making an
analogous addition to section 40(4). After the words “would make a person
stateless”, it could have added the words “in circumstances in which he has no
right immediately to acquire the nationality of another state”. But it did not do so;
and the Secretary of State therefore invites the court to place a gloss, as substantial
as it is unwarranted, upon the words of the subsection.
34. On 20 February 2012 the United Nations High Commissioner for Refugees
issued “Guidelines on Statelessness No 1”, HCR/GS/12/01, in which he addressed
some of the effects of the authoritative definition of a stateless person in article
1(1) of the 1954 Convention. Para 43 of his guidelines, entitled “Temporal Issues”,
has been incorporated, word for word, into the Home Office guidance on
“Applications for leave to remain as a stateless person” dated 1 May 2013, referred
to at para 13 above. The guidance provides:
“3.4 … An individual’s nationality is to be assessed as at the time
of determination of eligibility under the 1954 Convention. It is
neither a historic nor a predictive exercise. The question to be
answered is whether, at the point of making an Article 1(1)
determination, an individual is a national of the country or countries
in question. Therefore, if an individual is partway through a process
for acquiring nationality but those procedures have not been
completed, he or she cannot be considered as a national for the
purposes of Article 1(1) of the 1954 Convention. Similarly, where
requirements or procedures for loss, deprivation or renunciation of
nationality have not been completed, the individual is still a national
for the purposes of the stateless person definition.”
The Secretary of State’s own guidance eloquently exposes the fallacy behind her
appeal.
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