Pham v Secretary of State for the Home Department [2015] UKSC 19

Pham, born in Vietnam and naturalised British, was stripped of UK citizenship over alleged Al Qaida links. He claimed this rendered him stateless as Vietnam refused to recognise him. The Supreme Court dismissed his appeal, holding he retained Vietnamese nationality under Vietnamese law.

Facts

The appellant was born in Vietnam in 1983, acquiring Vietnamese nationality at birth. His family came to the United Kingdom in 1989, claimed asylum and were granted indefinite leave to remain, subsequently acquiring British citizenship in 1995. None of the family renounced Vietnamese nationality. After converting to Islam at the age of 21, the appellant travelled to Yemen between December 2010 and July 2011, where the UK security services assessed that he received terrorist training from Al Qaida.

On 22 December 2011, the Secretary of State served notice of her decision under section 40(2) of the British Nationality Act 1981 to deprive the appellant of British citizenship, being satisfied that this was conducive to the public good. She considered that he would retain Vietnamese citizenship and therefore not be rendered stateless contrary to section 40(4). Subsequently, the Vietnamese government declined to accept him as a Vietnamese citizen. The United States also sought his extradition.

Issues

The Supreme Court identified three issues:

• Whether, in determining if a person is considered a national of a State under the operation of its law (under article 1(1) of the 1954 Convention relating to the Status of Stateless Persons), the question is decided by reference to the text of nationality legislation, or whether ‘operation of law’ includes governmental practice not subject to effective judicial challenge.
• Whether deprivation of British citizenship, entailing loss of EU citizenship, falls within the ambit of EU law and what consideration must be given to proportionality.
• Whether, if EU law applied, it would necessarily be disproportionate to deprive the appellant of British citizenship.

Arguments

Appellant

Mr Southey QC submitted that the Court of Appeal had been unduly influenced by ‘rule of law’ concerns and had failed to apply the UNHCR guidance, which indicated that ‘operation of its law’ refers to law in practice, even where formal legal processes are absent. He further argued that the deprivation engaged EU law because the appellant would lose Union citizenship, requiring proportionality review, and that there were less onerous means of addressing any security risk, such as TPIMs.

Respondent

Mr Tam QC for the Secretary of State argued that, on the relevant Vietnamese legislation, the appellant remained a Vietnamese citizen on 22 December 2011, and that any subsequent refusal by the Vietnamese government to recognise him could not retrospectively render him stateless at the date of deprivation. He also contended that the EU law issues fell outside the scope of the preliminary issue directed by SIAC.

Judgment

Statelessness

Lord Carnwath (with whom Lord Neuberger, Lady Hale and Lord Wilson agreed) held that the term ‘stateless’ under section 40(4) corresponds to article 1(1) of the 1954 Convention. While accepting that ‘law’ should be interpreted broadly, encompassing ministerial decrees and customary practice as set out in UNHCR guidance, the Court found insufficient evidence that the Vietnamese government had adopted any position, practice or decision treating the appellant as a non-national ‘by operation of its law’ as at 22 December 2011. SIAC’s finding that the Vietnamese government’s later ‘settled attitude’ could feed back retrospectively was rejected; there was no provision in Vietnamese law for executive determinations to operate retrospectively in this manner.

EU law issues

The Court declined to determine the EU law issues, finding they fell outside the scope of the preliminary issue. Lord Mance examined the relationship between EU citizenship and national citizenship, noting that EU citizenship is derivative of national citizenship and that there are likely jurisdictional limits on EU competence over grant or withdrawal of national citizenship, having regard to Declaration No 2 to the Maastricht Treaty and the UK’s 1982/2007 declarations. The question raised by Laws LJ in R (G1) v Secretary of State regarding the European Communities Act 1972 may need to be considered in future, but did not require resolution here.

Proportionality

Lord Mance, Lord Sumption and Lord Reed each addressed proportionality at common law. They observed that reasonableness review at common law involves considerations of weight and balance, with the intensity of scrutiny depending on context. Where fundamental rights such as citizenship are engaged, a strict standard of review applies, and the practical difference between common law review and EU/Convention proportionality may be limited.

Implications

The decision confirms that, for the purposes of section 40(4) of the British Nationality Act 1981 and article 1(1) of the 1954 Convention, the assessment of statelessness focuses on the position under the relevant foreign state’s nationality law (broadly construed to include practice) at the date of the Secretary of State’s decision. A foreign state’s subsequent refusal to recognise an individual does not retrospectively render the individual stateless at the earlier date.

The judgment also flags, but leaves open, important constitutional questions about the limits of EU competence over national citizenship and the role of UK courts in reviewing such limits under the European Communities Act 1972. Lord Mance’s observations on the principle of conferral and the dualist nature of UK constitutional arrangements are likely to be influential in future cases concerning the scope of EU law.

The case is also significant for its treatment of proportionality at common law, with the Justices indicating that common law reasonableness review is sufficiently flexible to scrutinise interferences with fundamental rights, including citizenship, in a manner comparable to proportionality under EU and Convention law. The matter was remitted to SIAC for further consideration on the remaining grounds, with directions that it should address the issues on alternative hypotheses regarding EU law.

Verdict: Appeal dismissed. The Supreme Court upheld the Court of Appeal’s order remitting the case to SIAC for consideration of the remaining grounds of appeal. The deprivation of British citizenship did not render the appellant stateless within the meaning of section 40(4) of the British Nationality Act 1981, as he retained Vietnamese nationality under the operation of Vietnamese law at the date of the Secretary of State’s decision.

Source: Pham v Secretary of State for the Home Department [2015] UKSC 19