Man cannot be stripped of British citizenship, rules Supreme Court
14 October 2013
Secretary of State for the Home Department v Al -Jedda [2013] UKSC 62 – Read judgment / press summary
In late 2007, the Secretary of State for the Home Department made an order depriving Mr Al Jedda, who had been granted British citizenship in 2000, of his citizenship, under the British Nationality Act 1981. Section 40(4) of the Act prohibits the deprivation of nationality where the effect would be to render the person stateless.
Not being a citizen of any state can have profound effects on a person’s ability to live a normal life, including being unable to obtain travel documents and facing difficulty settling and obtaining work, education and healthcare. However, the Secretary of State considered that taking away Mr Al Jedda’s nationality was conducive to the public good.
He had originally held Iraqi citizenship, but had lost this under Iraqi law when he gained British citizenship. The Court of Appeal found that, although Iraqi law of citizenship had materially changed between 2004 and 2006, Mr Al Jedda had not in fact regained his citizenship of Iraq during this time.
The Secretary of State argued that if Mr Al Jedda was not an Iraqi citizen, it was Mr Al Jedda’s failure to apply to the relevant Iraqi authorities during the period 2004-2006 to regain his Iraqi citizenship which had made him stateless, not the order removing his British citizenship. The Court of Appeal rejected this argument and the Secretary of State appealed.
The Supreme Court was not persuaded that the 1981 Act permitted the Secretary of State to make an order, removing citizenship from a person, in circumstances such as these. Section 40(4), preventing people being made stateless, did not permit the government to conduct an analysis of whether the person in question could have obtained another citizenship:
“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.” Paragraph 32, Lord Wilson
Discussion
The legal dispute here was relatively simple: did the legislation permit the Secretary of State to deprive someone of citizenship, where they did not have another citizenship but could have acquired one? The wording of the legislation was unambiguous: if a person would become stateless upon British citizenship being revoked, then this could not be done. If Parliament had wanted to make an exception to that blanket rule, where a person had been given an opportunity to become a citizen of another state, but chose not to take it, it could have done so expressly in the legislation.
Clearly, the government had concerns about the impact of Mr Al Jedda returning to the UK on the general public, and no doubt some will criticise the decision as placing too much emphasis on the rights of the individual to the detriment of the majority. He currently resides in Turkey. But as a matter of law, the Supreme Court was obviously right not to permit a gloss to be placed upon clearly worded legislation. As for the morality of the government’s powers to remove grants of citizenship, there is a balance to be struck between competing interests, including that of the public good. But when the effect of withdrawing citizenship would render someone stateless, with all the detriments that entails, there are powerful arguments for removing the power of the government to strip a person of citizenship.
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The last bit’s easy, David, you and I are, both sides’ costs. As ever!
Lord Wilson concluded his judgment with the following paragraph (para 34):
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.
In the light of that Home Office guidance and Lord Wilson’s comment, the Home Secretary should surely be called upon to explain why she appealed, whether she did so against legal advice, and who is bearing the costs of the appeal.