The Supreme Court on statelessness, EU citizenship and proportionality
31 March 2015
Pham v Secretary of State for the Home Department  UKSC 19 – read judgment
Angus McCullough Q.C. and Shaheen Rahman from 1COR acted as Special Advocates earlier in these proceedings. They had nothing to do with the writing of this post.
On first glance, this was not a judgment about human rights. It concerned the definition of statelessness under article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, and raised issues of competence and jurisdiction in relation to EU citizenship. Its specific interest for human rights lawyers lies primarily in the observations about the principle of proportionality; and in where the case, which most certainly does raise human rights issues, is likely to go next.
The Appellant was born in Vietnam in 1983. He moved to the UK in 1989 and acquired British citizenship in 1995, but took no steps to renounce his Vietnamese nationality. On 22 December 2011, the Home Secretary decided to deprive him of his British citizenship under s40(2) of the British Nationality Act 1981 because she suspected that he was involved in terrorist activities.
The Appellant appealed to the Special Immigration Appeals Commission (SIAC) on various grounds. One of these was that the decision was unlawful under s40(4) of the 1981 Act because it rendered him stateless, since the Vietnamese government had subsequently made clear that it would no longer regard him as a national of Vietnam. SIAC ordered a preliminary hearing to determine that question, which was then appealed to the Court of Appeal (CA) and ultimately to the Supreme Court (SC).
The SC considered two issues: first, whether the Appellant was a national of Vietnam “by operation of its law” within the meaning of the 1954 Convention; and second, whether the decision was in any event disproportionate and unlawful under EU law.
The 1954 Convention
Under the 1981 Act (as it was in 2011), the Home Secretary may deprive a person of citizenship if she is satisfied that this will be conducive to the public good (section 40(2)), but not if she is satisfied that the order would make him or her stateless (section 40(4)).
A stateless person is defined in Article 1(1) of the 1954 Convention, which is binding on the UK, as “a person who is not considered as a national by any State under the operation of its law”. According to various guidance issued by the UN High Commissioner for Refugees (as set out by Lord Carnwath at -), this refers not only to the letter of the law but also to ministerial decrees, regulations and so on; and, where appropriate, to customary practice. This might even include a position taken by the executive which ignores decisions of judicial or other review bodies, if it is able to do so with impunity.
SIAC held that, although on the basis of the legislative texts alone the Appellant remained a Vietnamese citizen, those texts were “deliberately ambiguous” so as essentially to allow the Vietnamese executive free rein. For reasons set out in a closed judgment, it concluded that the Vietnamese executive no longer considered the Appellant to be a Vietnamese national by operation of its law. SIAC thought that that “settled attitude”, which was reached after the Home Secretary had made her decision, nevertheless represented the true position at the date of that decision.
The CA disagreed. Jackson LJ said at  that “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’…”. While the executive’s position may render the Appellant stateless as a matter of fact, it did not do so as a matter of law, and law is what the Convention is concerned with.
The SC unanimously agreed with the CA. Lord Carnwath, with whom Lord Neuberger, Lady Hale and Lord Wilson agreed, found some of the guidance hard to reconcile with the language of the Convention itself. He accepted that the question need not be decided solely by reference to legislative texts, but concluded, at :
“… there is in my view no evidence of a decision made or practice adopted by the Vietnamese government, which treated the appellant as a non-national “by operation of its law”, even adopting the broadest view of those words as interpreted by the UNHCR…”
He went on to say that, even if there had been such a decision, it was not effective at the time of the Home Secretary’s decision and could not be applied retrospectively. As Lord Sumption put it at :
“…if anyone has rendered Mr Pham stateless, it is not the Home Secretary on 22 December 2011 but the Vietnamese government thereafter”.
The appeal under this ground was accordingly dismissed.
The Appellant further argued that, by depriving him of British citizenship, the Home Secretary would also necessarily be depriving him of his EU citizenship. In those circumstances, both she and the courts were bound to have “due regard” to EU law when making and reviewing that decision. He argued that it was necessarily disproportionate to deprive him of EU citizenship where this would result in him being denied the benefits of any citizenship anywhere, and that the decision was therefore unlawful under EU law.
The SC declined to address these issues because they were not identified in the preliminary issue ordered by SIAC and therefore were not within the scope of the appeal. This was not a mere technicality: it was important, said Lord Carnwath at , for the tribunal of fact (i.e. SIAC) to specify how the issues it identified for preliminary determination were relevant to its disposal of the case. Lord Sumption added, at , that these issues were unsuitable for determination by the SC in the absence of any relevant findings of fact or any decision on those issues from the courts below.
Their Lordships did hint that, had the issue been properly before them, they might well have found that it was not within the scope of EU law at all. The Appellant relied on C-135/08 Rottmann v Freistaat Bayern  ECR I-1449,  QB 761 in which the European Court held that, while it is for member states to specify the conditions for national citizenship, when exercising their powers “in the sphere of nationality” they must have due regard to EU law; and that the exercise of that power, in so far as it affects EU rights, is amenable to judicial review carried out “in the light of European Union law”, apparently even where the case has no cross-border element (see at -).
Laws LJ in R (G1) v Secretary of State for the Home Department  EWCA Civ 867,  QB 1008 (by which both SIAC and the CA were bound) identified some difficulties with the decision in Rottmann. Since EU citizenship is wholly parasitic upon national citizenship, which is not within the competence of the EU, he questioned how the state’s competence could be qualified by an obligation to “have due regard” to EU law; or whether the CJEU even had jurisdiction to consider such matters. He also identified an ambiguity as to whether review “in the light of European Union law” refers only to general principles or also to “black-letter” provisions of EU law. Lord Carnwath in Pham saw “considerable force” in these criticisms (at ) while Lord Mance thought that it was “very arguable that there are under the Treaties jurisdictional limits to European Union competence in relation to the grant or withdrawal by a Member State of national citizenship” (at ). The issue, however, had to be left for another time.
These EU law issues drew some interesting observations on the nature and scope of proportionality in the context of domestic law, EU law and, indirectly, under the ECHR.
Lord Carnwath at , and Lord Mance (with whom Lord Neuberger, Lady Hale and Lord Wilson also agreed) at , both referred to the flexible, context-dependent approach to judicial review in domestic law endorsed in Kennedy v Charity Commission  UKSC 20,  2 WLR 808. Both thought that a particularly strict standard of review would be appropriate in a case involving the removal of a status as fundamental as citizenship. Lord Mance thought it unlikely that the nature, strictness or outcome of such a review would be different whether it was conducted under EU or domestic law; Lord Carnwath left that for SIAC to determine.
Lord Sumption also questioned whether review under ordinary public law principles was necessarily liable to produce a different result from proportionality review in such a case. He set out, at -, a host of case law and academic writing suggesting that domestic standards of review have evolved such that, in a case like this where both the individual right and the public interest potentially at stake are “at the weightiest end of the sliding scale”, the result may well be the same whether the rights originate in domestic law, EU law or under the ECHR. He concluded at :
“…For these reasons, it would assist the future course of these proceedings if in dealing with the remaining issues SIAC were to take the common law test as its starting point and then say in what respects (if any) its conclusions are different applying article 8 of the Human Rights Convention or EU law. It may well turn out that in the light of the context and the facts, the juridical source of the right made no difference.”
Lord Reed came to much the same conclusion, though he expressed it slightly differently. He distinguished between proportionality as a general ground of review of administrative action, and as a basis for scrutinising justifications put forward for interferences with legal rights. In the former context, the domestic “heightened Wednesbury” test and the European proportionality test were not identical, though they may in some cases yield the same result. In the latter context the courts have adopted what is, in substance, a proportionality test, by interpreting relevant legislation as authorising only the minimum interference with rights which is necessary to achieve the legitimate aim pursued. He concluded that, while the outcome under either approach may be the same whether the rights derive from domestic or EU law, that would be for SIAC to determine.
The case will now be remitted to SIAC to determine the remaining issues, including those under the ECHR: the Appellant’s Article 8 right to respect for private and family life will obviously need to be balanced against the threat which he allegedly poses to national security. While de facto statelessness may not satisfy the definition under article 1(1) of the 1954 Convention, it will be relevant to the question of proportionality under Article 8 ECHR. The difficult issues relating to EU law could come back before the appeal courts and might be the subject of a reference to the CJEU, once SIAC has duly set out their relevance to the case and reached its own view. If so, this is likely to be of interest to human rights lawyers if the courts offer further views on the distinction (insofar as there is one) between proportionality in the context of domestic law, EU law and specifically under the ECHR.
Since the Home Secretary’s decision in this case, a new s40(4A) has been inserted into the 1981 Act by the Immigration Act 2014. This gives the Home Secretary the power to deprive a naturalized person of citizenship even where this would render him or her stateless, if he or she has conducted him or herself in a manner which is “seriously prejudicial to the vital interests of the United Kingdom” and where there are reasonable grounds for believing that the person is able to become a national of another country or territory under its law. Such a widely drawn provision, with potentially extreme consequences for some individuals, is surely ripe for challenge: watch this space.
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