Earlier this year, Laura Bingham contributed a blog for ENS on the much talked-about Al-Jedda case, in which the UK Supreme Court was asked to decide whether a man suspected of supporting terrorism could be denationalised, or whether safeguards against statelessness blocked such action. Today, the Supreme Court handed down its decision, marking a clear 'victory against statelessness', as Simon Cox explains below [this comment piece was originally posted here].
Is a person stateless if they can acquire citizenship, but have not done so? In an important judgment given today, the Supreme Court of the United Kingdom held that such a person is stateless under the United Nations Conventions on Statelessness.
The case before the court is about Hilal Al-Jedda. Originally Iraqi, he became a naturalised British citizen. The Home Secretary wanted to take away his British citizenship because of alleged terrorist activities. Under British law, he cannot be deprived of that citizenship if that would make him stateless. This law had been passed to give effect to the 1961 UN Convention on the Reduction of Statelessness. The Court of Appeal decided that Al-Jedda had already lost his Iraqi citizenship and that this meant he could not have his British citizenship taken away.
The Home Secretary appealed to the Supreme Court saying that it was not her decision to take away his British citizenship which would make Al-Jedda stateless. She argued that, under article 8(1) of the 1961 Convention, a state does not make a person stateless where they have the right to recover a previous nationality by making an application.
The Supreme Court doubted that this was the situation for Al-Jedda, but decided to address the issue anyway. To answer it, the Court looked at the 1954 UN Convention on the Status of Stateless Persons, Article 1(1) of which defines a stateless person as one ‘who is not considered as a national by any State under the operation of its law.’
The UN High Commissioner for Refugees has a mandate from the UN to prevent statelessness and protect stateless persons. The UNHCR has issued guidance that, under Article 1(1), a person who currently has no citizenship is stateless, regardless of why they do not have any citizenship. The court was urged to agree with UNHCR by both Al-Jedda and the Open Society Justice Initiative, which the court had given permission to intervene.
In a unanimous judgment given by Lord Wilson, the Supreme Court accepted the case put by Al-Jedda and the Justice Initiative. The court pointed out that up to 12 million people worldwide are affected by statelessness, noting that “worldwide legal disabilities with terrible practical consequence still flow from lack of nationality”. The judges recognised the value of a clear approach to the statelessness conventions. They recognised that the definition in those conventions of stateless person has become “internationally authoritative”. They held that it would leave the law ‘mired in deeper complexity’ if states could rely on possible future acquisition of nationality to defeat claims to statelessness status.
UNHCR and civil society organisations have long advocated for this interpretation of ‘stateless person’. In many cases, people with no nationality have been denied protection by the state where they live because of arguments that they can become citizens of some other state. A rule requiring such people to apply to that other state to prove their statelessness would allow states to disregard them. They could become caught between two states, neither of which is willing to protect them.
A clear rule that these people are stateless is essential. It requires them to be given protection under the statelessness conventions by the state where they are living. This formal status can assist them to acquire a citizenship and so be fully protected.
The judgment is the first time a supreme court has addressed this issue. Judgments of the UK Supreme Court are highly regarded worldwide by courts and states. The judgment marks an important step in securing legal protection for stateless people.