“Everyone has the right to a nationality”

Burden of proof in statelessness cases and the meaning of “by operation of its law”

31 January 2020 | Alison Harvey, Barrister at No5 Chambers
Photo by Adrián Tormo on Unsplash

The UK’s practice of depriving persons of their British citizenship when they are outside its territory belies its assurance, in the form of a duly issued passport, that it will take back its miscreant citizenry and not inflict them on other states. The practice has been highlighted in the Shamima Begum case where a British child travelled to Syria to join Daesh and was stripped of her British citizenship while there.

In the Immigration Act 2014 the UK extended its powers of deprivation to allow the Secretary of State, for the first time since 2002, to deprive persons of their British citizenship on character grounds where this would leave them stateless, provided that she has reasonable grounds for believing that the person is able to become a national of another country. In Ms Begum’s case, however, there has been debate about whether the government needs to rely on that provision, or whether she is already a Bangladeshi citizen.

In the case of E3 & N3 (Exclusion : Preliminary issue) [2018] UKSIAC SC_146_2017, the Special Immigration Appeals Commission ruled that E3 and N3 had been born Bangladeshi but had failed to take steps to retain their citizenship before they reached the age of 21, so that when they reached that age, it had lapsed. The Secretary of State would, contrary to her argument that they were already Bangladeshi nationals, have rendered them stateless had she deprived them of their citizenship.

The Secretary of State appealed to the Court of Appeal which, in Secretary of State for the Home Department v E3 & Anor [2019] EWCA Civ 2020 ruled in her favour.

Foreign law is a matter of fact in the UK courts and the Commission had heard expert evidence upon the nationality laws of Bangladesh. Moreover, the Secretary of State submitted the response of Bangladeshi authorities to a Note Verbale, No POL/02/18 sent by the British High Commission, Dhaka, to the Bangladesh authorities.

A matter of particular interest in this case is on which party the burden of proof lies in proving that a person is stateless. The answer of the Special Immigration Appeals Commission was “the Secretary of State”. The Court of Appeal did not agree. Lord Justice Flaux held at paragraph 64 that once the Secretary of State had shown that she was satisfied that the Appellant would not be made stateless by the decision, the burden fell on the Appellant to establish that he had “in fact” been rendered stateless.

In short, the E3 and N3 had to show that the Note Verbale did not accurately present the law of Bangladesh, rather than the Secretary of State establishing conclusively that it did. The case was remitted to the Special Immigration Appeals Commission to determine the appeal applying this standard of proof.

What does it mean to say that you have “in fact” been rendered stateless? In the course of its judgment the Court of Appeal tangles with the notorious decisions, its own and that of the Supreme Court, in Pham v Secretary of State [2014] UKSC 19, in which violence was done to the meaning of “by operation of its law” in Article 1(1) of the 19543 UN Convention on the Status of stateless persons.

In Pham, which was ultimately decided on the basis that Mr Pham had lost his Vietnamese citizenship before the UK attempted to deprive him of his British citizenship, obiter comments suggested that “by operation of its law” had to mean, contrary to UNHCR guidance, the letter of the law, rather than what happens “in fact”. Students of statelessness law despaired.

The Special Immigration Appeals Commission in E3 and N3 held that is would hesitate to come to the conclusion of Lord Carnwath in Pham that, in the words of the Commission in E3 and N3, “state practice could be relevant even if the government in question acted arbitrarily and in defiance of the law”. It recalled Lord Mance’s doubts in Pham that “a practice that was inconsistent with or said to supersede law could be relevant at all” and Lord Sumption JSC’s not being convinced “that practice could stand for law in the 1954 Convention.”.

This is dangerous stuff, as it was in Pham and it is to be hoped that the Supreme Court will get a chance to sort out it. If you are considered a threat to national security, it is only too likely that a State may act "arbitrarily and in defiance of the law” in refusing to recognise you. You are none the less stateless for that.

The 2014 UNHCR Handbook on protection of stateless persons under the 1954 Convention relating to the Status of Stateless Persons provides at paragraph 23

Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice and any review/appeal decisions that may have had an impact on the individual’s status. This is a mixed question of fact and law.

Applying this approach of examining an individual’s position in practice may lead to a different conclusion than one derived from a purely formalistic analysis of the application of nationality laws of a country to an individual’s case. A State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to “law” in the definition of statelessness in Article 1(1) therefore covers situations where the written law is substantially modified when it comes to its implementation in practice.

A footnote reminds the reader that this approach reflects the general principles of law set out in Articles 1 and 2 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws:

Article 1 It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.

Article 2 Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.

Whether a State “recognises” the nationality laws of another State on acquisition and loss as legitimate (the furore over economic citizenship springs to mind) within the meaning of Article one is a very different question from whether it accepts that the State refuses to recognise a person as its national and that that person therefore does not enjoy the protection of that State.

Article 2 of the Hague Convention deals with that later question. The approach it, and UNHCR, take, is the only one that avoids, in the words of Lord Macdonald of River Glaven in the 17 March 2014 House of Lords’ debates on the Bill that became the Immigration Act 2014:

“ a bleak, hopeless status, or rather a complete lack of status, that the British Government should have no role in encouraging, first, because of the positively terminal impact that the imposition of statelessness is bound to have on the ability of the rightless to function in a way that is even remotely human in the modern world and, secondly, because it is clear that such an imposition as a policy measure can have no sensible part in a co-ordinated international effort to combat security threats. …”

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