Poor Judgement, Bad Judgment

Amal de Chickera
/ 9 mins read

I was preparing to write a blog entry on the upcoming UNHCR NGO Consultations – on the importance of NGOs working on statelessness strengthening collaboration with UNHCR, on the need for similar collaboration and partnership with UN human rights bodies, on our collective anticipation before the first ever retreat on statelessness and the fact that three ENS steering committee members will be on the panel of the increasingly popular statelessness session at the Consultations.

However, in a fleeting cyber-moment, an email from fellow ENS steering committee member Laura van Waas alerted me to a decision of the UK Court of Appeal on 24 May, and my plans were dashed. Instead of a positive blog on partnership building, I have for you an angry one on a bad judgment and its potential impact.

The case of B2 v The Secretary of State for the Home Department concerned section 40 (2) of the 1981 British Nationality Act on the deprivation of British citizenship and section 40(4) of the Act which does not allow deprivation of citizenship if it would make the person stateless. This provision gives effect to Article 8(1) of the 1961 Convention on the Reduction of Statelessness, which provides that: "A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless."

The Equal Rights Trust (ERT) has issued a statement critiquing the judgment, which reflected poor judgement on the part of the judiciary for its failure to draw from the authoritative UNHCR Guidelines on Statelessness No. 1, which anticipate and deal with precisely the kind of scenario the Court found presented before it. One could argue that even without the benefit of the UNHCR Guidelines, the Court should have held differently, particularly if it had interpreted the summary conclusions of the UNHCR Prato expert meeting (which it did consider) accurately.

The facts of the case were as follows: B2, a British citizen of Vietnamese origin, was determined by the Security Service to be a threat to the safety and security of the UK. Consequently, on 22 December 2011 the Secretary of State made an order depriving B2 of his British nationality and ordered his deportation to Vietnam, after which B2 was detained. However, the Vietnamese Government stated that B2 is not a Vietnamese national and was not such on 22 December 2011.

The decision of the Court was based on its analysis of the facts, relevant UK and Vietnamese laws, the definition of statelessness under international law, the Prato conclusions and a UNHCR briefing paper on de facto statelessness. The Court was of the opinion that under Vietnamese law, B2 was a national of the country and therefore he could not be made ‘de jure stateless’ as a result of the deprivation of his UK nationality. The Court did concede that the Vietnamese authorities did not recognise B2 as a national, but overcame this slight inconvenience by determining that if the government of a foreign state chooses to act contrary to its own law, it may render the individual de facto stateless. The Court went even further, and held that under these circumstances it was the duty of the UK Courts to “respect the rule of law”, and therefore the Court “cannot characterise the individual as de jure stateless”.

The ERT statement provides the following critique of the judgment which sets out the regressive and unhelpful nature of this decision:

“Had the Court referred to the Guidelines, it would have found that contrary to its assertion that “[t]he fact that in practice the Vietnamese Government may ride roughshod over its own laws does not... constitute “the operation of its law” within the meaning of article 1.1 of the 1954 Convention”, UNHCR Guidance expressly states that such situations do result in statelessness.

According to the UNHCR Guidelines:

16. 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 ... This is a mixed question of fact and law.

17. Applying this approach of examining an individual’s position in practice may lead to a different conclusion than one derived from a purely objective 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.

30. where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national.

Consequently, it is evident that the role of the Court of Appeal in this instance should not have been to assess if Vietnamese nationality law as interpreted by the British courts would result in B2 being recognised as a national of Vietnam, but rather to assess whether the competent authorities in Vietnam consider B2 to be a national under Vietnamese law or not. The communication of the Vietnamese Government to this effect therefore stands alone as evidence that the deprivation of his British citizenship has rendered B2 stateless in breach of the UK’s domestic and international law obligations.”

This judgment has allowed the UK to deprive one of its own citizens of his nationality, even though he has become stateless as a result. Not only is this unlawful, if successfully implemented, it would also arguably amount to an arbitrary deprivation of nationality.

The Court’s decision has a sobering effect on the euphoria after the introduction of a UK statelessness determination procedure - if the Court of Appeal can get it so wrong, what new ways of denying statelessness status will be found by immigration case workers? But hopefully this will just be a short-term blip that will be rectified upon appeal. It is also worth noting that the Supreme Court will soon be hearing the Al-Jedda case, which provides an opportunity for a more expansive and progressive interpretation of Article 1(1), in line with UNHCR guidance.

I wish to conclude by raising five interconnected concerns which emerge from the issues dealt with by the Court and the reasoning and outcome of the judgment.

  1. The issue of whether the deprivation of nationality was an appropriate and proportionate response by the Secretary of State was not addressed by the Court, which only dealt with the question of whether statelessness would ensue. Even if this more fundamental issue was addressed, it would have been done so in that wonderfully opaque, rule of law defying manner of the secret court hearing due to national security considerations. The fact that the Secretary of State thought it appropriate to deprive a British citizen of his nationality, purely based on an “assessment of the Security Service that B2, if at liberty, would pose an active threat to the safety and security of the United Kingdom and its inhabitants” is extremely concerning. B2 is not a convicted terrorist (even if he was, the deprivation of his nationality seems an unnecessary and harsh punishment) but rather someone who the Security Service assessed was involved in terrorism related activities. The deprivation of nationality should not be so easy and routine. The state should only be allowed to do so in the most extreme of circumstances (if at all) and then too, only after a fair trial and criminal conviction. Section 40(2) of the 1981 Act allows for deprivation of nationality if the “Secretary of State is satisfied that deprivation is conducive to the public good.” The broadness and vagueness of the notion of ‘public good’ renders it an inappropriate basis for a decision with such life-altering implications.
  2. Let’s consider a hypothetical (for nothing has been proven) worst case scenario. That B2 is a hard-core terrorist capable of the most heinous acts. Granted, he was born in Vietnam – but left the country as an infant with his family. He arrived in the UK when he was six years old and has lived there for 24 years. His ties are British and his worldview has been shaped by his life in Britain. If he is a terrorist, it is his experience in the UK that triggered something in his mind and drove him down that path. It is the UK that has a responsibility to deal with him through the criminal justice process so he can be punished and rehabilitated in accordance with the law. Depriving him of his nationality and attempting to send him to Vietnam is almost akin to exporting terrorism.
  3. While section 40(4) ostensibly serves the purpose of fulfilling the UKs international law obligations under the 1961 Convention, it is indirectly discriminatory. It is more likely that naturalised citizens or citizens whose parents are immigrants would have access to another nationality, as opposed to those born in the UK to parents who are also citizens. Consequently, the effect of Sections 40(2) and 40(4) is that citizens with an immigrant background are more likely to be subject to deprivation of their UK citizenship, purely because they have access to another nationality, irrespective or any other factors including their links to that country, their right to a family and private life, the principle of non-refoulement and other human rights considerations. Even if applied properly, sections 40(2) and 40(4) have the discriminatory impact of creating two categories of citizen – those who cannot be deprived of their nationality, and those who can. While the UK has an obligation to comply with the 1961 Convention, it has an equally strong obligation to comply with international human rights standards, which  is not reflected in the 1981 Act and does not seem to have been considered by the Court of Appeal.
  1. The tone and outcome of the judgment makes it abundantly evident that ‘protection’ was not a priority for the Court. Instead, the Court seems to have viewed the issue almost as a matter of national pride – taking upon itself the task of interpreting Vietnamese law, while disregarding the position of the only authority that was competent to decide whether B2 was a national of Vietnam or not – the Vietnamese government. That the Court felt compelled to find B2 to be de facto stateless in order to comply with the ‘rule of law’ is particularly ironic. So preoccupied was the Court with the state of the rule of law in Vietnam, that it issued a judgment which undermines the rule of law in the UK.
  2. Finally, spare a thought for B2, the invisible individual, reduced to a letter and a number, suspected but not charged or convicted of being a terrorist and confined to a detention cell since December 2011. While the UK continues in its futile attempts to remove him and Vietnam continues in its refusal to accept him, he will languish in detention. It is a cruel twist of fate that inflicts indefinite detention on B2 the non-national who is being removed from the country, when B2 the pre-charge terrorist suspect would have been legally protected from being detained for more than 14 days.    
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