Hilal Abdul-Razzaq Ali Al‐Jedda v Secretary of State for the Home Department March 29 – read judgment
The Court of Appeal has allowed the suspected terrorist Al‐Jedda’s appeal against the Home Secretary’s decision to deprive him of his British nationality.
The appellant, an Iraqi refugee, was granted British nationality in 2000. Four years later however he was detained by British forces in Iraq on grounds of suspected terrorist activities. At the end of 2007 he was released from detention without charge, but just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under the British Nationality Act 1981 depriving him of his British nationality. As a consequence of this order the appellant has not been able to return from Turkey to the United Kingdom. His appeal against this order has been upheld on the basis that he had not regained Iraqi nationality when his British nationality was revoked. He thus requalifies for citizenship in this country.
The following summary is taken from the Court of Appeal’s press release:
The appellant had lodged an appeal to the Special Immigration Appeals Commission (“SIAC”) against the Secretary of State’s order. This was his appeal against SIAC’s decision of 26 November 2010.
At the time when he first came to the United Kingdom, the appellant had Iraqi nationality. The effect of his being granted British nationality in 2000 was that, under the law of Iraqi as it existed at the time, he lost his Iraqi nationality. The main issue for SIAC to determine was whether his Iraqi nationality had been automatically restored to him by one or other of a number of Iraqi legislative instruments enacted following the occupation of Iraq by coalition forces in 2003. (para 5)
SIAC concluded that the appellant had Iraqi nationality restored to him automatically either by the Law of Administration for the State of Iraq for the Transitional Period (“the TAL”), adopted on 8 March 2004 by the Governing Council of Iraq during the period of occupation by coalition forces, or by Iraqi Law No.26 of 2006 which came into force on 7 March 2006 following the end of the occupation, the expiry of the transitional period and the approval of a new Iraqi Constitution. (para 9)
The Court’s judgment
The Court considered that SIAC had misinterpreted Article 11(C) of the TAL. This did not operate to restore his Iraqi citizenship automatically, and since the appellant had made no application for its restoration, he did not become an Iraqi citizen after his citizenship of this country was revoked. As a consequence the Secretary of State’s order had, in effect, made him stateless. For this reason the order depriving him of British nationality had to be quashed. Richards LJ reached this finding although he felt it a “deeply unsatisfactory” result, but
..it needs to be borne firmly in mind that the British Government took the positive step of granting the appellant British nationality in 2000 and that Parliament has legislated in clear terms that an order depriving a person of his British nationality may not be made unless deprivation is conducive to the public good and the order would not make him stateless. (italics inserted)
Because the Secretary of State had been unaware that the grant of British nationality to the appellant would cause him to lose his Iraqi nationality, the issue of statelessness had therefore not been given the consideration it should have been given, therefore rendering the order unlawful.
Stanley Burnton LJ added that if the Government had retained the right, conferred by the original provisions of the British Nationality Act 1981 to remove a person’s UK nationality on the ground that he had shown himself to be disloyal or disaffected to the Crown, the result of the case might well have been very different. That right was not restricted to cases where the removal of British nationality would not render the person stateless. For reasons of which the Court is unaware, that right was abolished when the 1981 Act was amended in 2002. (para 127‐128)
Gross LJ, agreeing with the reasons given by Richards and Stanley Burnton LJJ, said that he also “felt driven” to allow this appeal, albeit also with great reluctance,
in circumstances where the appellant’s case is conspicuously lacking in merit and where the Secretary of State has determined that depriving the appellant of his British nationality is conducive to the public good. Unfortunately, however, s.40(4) of the British Nationality Act 1981 (as amended) leaves no scope for the exercise of any discretion.” (para 129)
A full analysis of this case will follow shortly.
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