Case Preview: Secretary for State of the Home Department v B2
18 Tuesday Nov 2014
This week a seven strong bench of the Supreme Court will hear an important appeal concerning statelessness, Secretary for State of the Home Department v B2. The issue on appeal concerns the proper approach to the question of statelessness for the purpose of the British Nationality Act 1981, s 40 where a country has stated that one of its purported citizens is in fact not a citizen, whereas the UK has determined that as a matter of law that person is a citizen.
B2 was born in Vietnam and came to the UK in 1989 acquiring British citizenship at the age of 12. In 2011 the Secretary of State for the Home Department made an order under s 40(2) of the 1981 Act depriving B2 of British nationality on the ground that it would be conducive to the public good, because he was assessed to be involved in terrorism-related activities. B2 appealed to the Special Immigration Appeals Commission arguing that the decision was in breach of s 40(4), because it rendered him stateless on the basis that the government of Vietnam denied that he was a citizen. B2 was successful before SIAC.
The Secretary of State appealed. She did not dispute that Vietnam did not recognise B2 as a citizen, but argued instead that the decision was not relevant because as a matter of Vietnamese law, B2 should be considered as a citizen. As such the denial by Vietnam of his status was unlawful and therefore he was not stateless. The Court of Appeal allowed her appeal.
The Supreme Court has to decide the correct test to apply to determine the question of statelessness – should it be purely an objective test (based on the law), or a subjective test (based on what the state in fact decides)?
The case has very wide implications given that a number of states in the world routinely refuse to give proper effect to their citizenship laws and deny nationality. If the UK government is correct in its assertion, this will mean that a person who is wrongly but de facto denied citizenship from their country of nationality will be stateless if they either have no other nationality or else are stripped of their nationality (as was the case for B2).
The Open Society Justice Initiative are intervening in the appeal which is being heard 18-19 November 2014.