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The judgment in Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62 was handed down in October. It is the first decision on the issue of deprivation of citizenship to reach the Supreme Court and follows the Court of Appeal decisions in B2 v Secretary of State for the Home Department, [2013] EWCA Civ 616 and L1 v Secretary of State for the Home Department [2013] EWCA Civ 906.
The appellant in Al Jedda was an Iraqi refugee who was granted British nationality in 2000. In 2004, he travelled to Iraq and was detained by British forces because they suspected that he was involved with terrorism.[1] In December 2007, shortly before his release without charge, the Secretary of State made an order depriving him of his British citizenship. The current proceedings arose from this decision.The British Nationality Act 1981, s 40(4) prohibits the Secretary of State making a deprivation order “if she is satisfied that the order would make a person stateless”. The power to deprive is otherwise extremely broad; the only requirement being that the Secretary of State is satisfied that deprivation is “conducive to the public good”.
The Secretary of State contended that Mr Al-Jedda could have applied for his Iraqi nationality to be restored. She went on to argue that it was therefore Mr Al Jedda’s failure to apply for his nationality to be restored and not her order which resulted in him becoming stateless.
The Supreme Court was unconvinced by the Secretary of State’s view that Mr Al-Jedda could have applied for his Iraqi nationality to be restored and rejected it as “unrealistic”. The Secretary of State’s argument that Mr Al-Jedda’s statelessness was the result of his own inaction was given short shrift by the Supreme Court, which held that the law “does not permit, still less require, analysis of the relative potency of causative factors of the individual’s statelessness”.
An important part of the judgment is the Supreme Court’s clarification that the requirement that the Secretary of State be “satisfied” that the effect of the order would be to make the individual stateless does not import a subjective standard. In other words, the Secretary of State cannot herself decide what statelessness means.
The Supreme Court found that the “straightforward” question to be answered was whether Mr Al Jedda held another nationality at the date of the order. This was clear from a plain reading of the statute and the Secretary of State’s own guidance. The Supreme Court concluded that to accept the Secretary of State’s argument would “mire the subsection in deeper complexity”.
After the hearing but before judgment was handed down, the Secretary of State presented evidence of a valid Iraqi national passport purportedly issued to Al-Jedda. Al-Jedda contended that the passport was fake or fraudulently obtained since he had engaged an agent to procure it on his behalf. The Supreme Court acknowledged that the Secretary of State might make a further deprivation order on the basis that, in light of the passport, the new order would not make Mr Al-Jedda stateless. However, they declined to resolve the issue whether the passport denoted a valid grant of nationality to Mr Al Jedda or to comment on the legality or merit of making a further deprivation order.
Within weeks of the Supreme Court’s judgment being handed down, the Secretary of State made a second order depriving Mr Al Jedda of his British citizenship. Mr Al Jedda has issued new proceedings challenging the Secretary of State’s decision to make a second deprivation order.
In November, it was reported that the Secretary of State is planning to change the law in order to enable her to deprive an individual of their British citizenship, even if it would make them stateless. The Government’s mantra is that British citizenship is not a right but a privilege. The Supreme Court, however, emphasised the “evil of statelessness” and the increasing recognition in international law of the importance of citizenship.
The UK is a signatory of the 1961 UN Convention on the Reduction of Statelessness, which permits deprivation of citizenship resulting in statelessness only where the individual concerned has conducted themselves in a manner “seriously prejudicial to the interests of the State”. The UK made the requisite declaration that it would be reserving the right to deprive in such circumstances but limited its application to “naturalised” persons. Since then, the threshold for deprivation has been lowered from “seriously prejudicial to the vital interests of the state” to the Secretary of State being satisfied that “deprivation is conducive to the public good”. This is compliant with the 1961 Convention only because of the limitation in s 40(1) which prohibits a deprivation order being made where it would result in statelessness. Removing this limitation without more would put the UK in breach of its obligations under the 1961 Convention. It is doubtful whether the Secretary of State would wish to return to its position under the declaration given its limited application, however it is unclear whether it is open to the Secretary of State simply to apply the “seriously prejudicial to the interests of the State” standard for deprivation.
Current UK legislation provides for a broader power to deprive an individual of nationality than would be permitted under the 1997 European Convention on Nationality. The UK has thus far declined to ratify the 1997 Convention for precisely this reason.
Having previously taken a leading role in seeking to reduce statelessness, it is unfortunate that the UK government is now resiling from this approach in favour of the increased use of deprivation measures as a tool in the “war on terror”.