One would rightly think that the Special Immigration Appeals Commission (“SIAC” or “the commission”) – a creature of statute – is reserved primarily for individuals who have something to do with Islamic extremism. Reading (only) the first three paragraphs of the decision, one really could be be forgiven for thinking that this case has nothing to do with extremist Islamic ideology. But then the commission hits you with it in para 4 that B2 converted to Islam and became an extremist. Since B2 admitted having gone to Yemen (December 2010 – July 2011), the security service assessed that left to his own devices he would pose a threat to the safety and security of the UK because he received terrorist training from Al Qaeda in the Arabian Peninsula. This was the SSHD’s open case.
The fact that B2 is a British citizen of Vietnamese origin makes this case all the more interesting. Born in 1983 in Vietnam, B2 was a Vietnamese national under article 2.1 of Order No 53 of the Chairman – Ho Chi Minh, top-left picture – of the Provisional Government of the Democratic Republic of Vietnam.
According to B2, shortly after his birth he travelled to Hong Kong (where his family remained for seven years) by sea along with his parents. Subsequently, they arrived in the UK in 1989, claimed asylum, got indefinite leave to remain and became British citizens in 1995. Although B2 had a Vietnamese birth certificate, him and his parents never held Vietnamese passports and never took any steps to renounce Vietnamese citizenship.
In December 2011, the SSHD deprived B2 of his British citizenship on conducive grounds for reasons of national security. After serving notice on B2 about that decision, the SSHD made an order – under section 40(2) of the British Nationality Act 1981 (the 1981 Act) – to deprive him of his British citizenship. Along with the order, the SSHD also served notice of her decision to deport B2 to Vietnam under section 3(5)(a) of the Immigration Act 1971 (the 1971 Act). He was subsequently detained and appealed against both decisions to SIAC. B2 argued that the SSHD could not rely on section 40(2) of the 1981 Act because that would make him stateless which was not allowed under section 40(4) of that Act. The instant preliminary proceedings were ordered by SIAC to decide that issue and it explained that there was also a closed judgment “to which any appellate court would need to refer fully to understand the reasons for our decision”: para 2.
Noting B2’s legal arguments in relation to statelessness, the commission reminded itself of its earlier judgment in Hamza v SSHD  UKSIAC 23/2005 (05 November 2010) and it was satisfied that the reference in section 40(4) of the 1981 Act is to de jure statelessness as defined in article 1.1 – the term “stateless person” means a person who is not considered as a national by any state under the operation of its law – of the Convention relating to the Status of Stateless Persons 1954. The parties accepted that if, at the time of the deprivation decision, Vietnam did not consider B2 to be its national, then the deprivation order would be barred under section 40(4) because it would make him stateless.
So, extremely interestingly, the central question before the commission was “whether, as at 22nd December 2011 [the day the deprivation order was made], the appellant was or was not considered as a national by the Vietnamese state under the operation of its law”: para 5. B2’s case was novel because the normal approach to nationality disputes was that a court would decide, in accordance with the law of the country concerned, whether a person was its national.
In fact – as confirmed by S1, T1, U1 & V1 v SSHD  UKSIAC 106/2011 (27 October 2011), paras 17 & 18 – that was so even if the executive arm of the state refused to recognise an individual’s nationality. The problem with Vietnam was that despite the content of its nationality legislation and the appellate procedures connected therewith, nationality issues in respect of overseas Vietnamese were decided exclusively by the executive arm of the Vietnamese state. The Vietnamese Ambassador Nguyen Quy Binh (acting as B2’s expert in the instant proceedings and a proponent of dual nationality), who was involved in the drafting of the 1988 nationality law, affirmed that much. The conventional approach to the issue of statelessness, thus, would have produced an incorrect answer to the preliminary question.
SIAC accepted the view proposed by the ambassador over the SSHD’s expert Dr Nguyen Thi Lang’s opinion: she maintained that in practice and principle Vietnamese law was flexible enough to recognise dual nationality for overseas Vietnamese who had not renounced their Vietnamese citizenship. Because 3 million Vietnamese fled that country’s catastrophic wars with the French, the US and others, the issue of dual nationality remained taboo. But the recent thaw in relations with the western world meant that the Vietnamese diaspora provided fertile ground for capital and knowledge both of which were required by Vietnam to enter the global market place.
The commission traced the development of Vietnamese nationality law to note that the from 1945 to 1988, Order Number 53 prevailed and its architecture was such that a Vietnamese citizen would lose Vietnamese nationality on being granted a foreign nationality. Dual nationality was possible for persons who had become French nationals. They were deemed to be Vietnamese citizens but lost their right to vote and stand for election if they did not renounce French nationality by declaration.
The later 1988 nationality law (operative when B2 acquired British citizenship in 1995) recognised a single nationality for Vietnamese but was supplemented by a decree of the Council of Ministers which envisaged protecting Vietnamese – under international law and customs while abroad and at parity with Vietnamese citizens while in Vietnam – who had acquired another state’s nationality. The ambassador maintained this law was deliberately ambiguous so as to allow the executive to “take whatever decisions it wished”: the return of rich and talented Vietnamese could be facilitated and unwanted individuals could also be excluded. SIAC acknowledged this as “the true position”: para 18.
The subsequent 1999 nationality law reiterated the recognition of a single nationality for Vietnamese citizens but introduced the idea of “Vietnamese living abroad.” The state was encouraged to have closer ties with such people. Yet the court was only entitled to exercise jurisdiction in nationality disputes between individuals and the president remained competent in matters relating to naturalisation, restoration, relinquishment and deprivation. The subsequent 2008 nationality law preserved the single nationality provisions in a qualified form. It was more generous about retention and restoration rights but, yet again, failed to entrust the court with a decision-making role. Instead, the president was given this power.
Whilst SIAC found the text of Vietnamese law to be confusing, it was not prepared to be bewildered by the law because, more significantly, the president or council of ministers’ decisions were not challengeable in court. The SSHD’s expert Dr Lang’s view that executive decisions could be challenged and overturned in Vietnam’s administrative court was considered “naïve” by the commission which favoured Ambassador Binh’s opinion that executive decisions are not open to challenge in the courts: para 18. No precedent or reported case existed in this respect.
SIAC answered (para 19) the preliminary question by holding that:
[T]he decision of the Secretary of State to deprive the appellant of his citizenship on 22ndDecember 2011 did make him stateless and so is not permitted under section 40(4) of the 1981 Act.
The commission explained that the British and Vietnamese governments only exchanged thoughts on B2 after the deprivation order was made. The “extensive discussions” which ensued were elaborated in the closed judgment and Vietnam’s omission to recognise B2 as its national was “deliberate” because the country did not have sufficient information to make a sensible decision in the matter: para 7.
Thus, the question whether or not Vietnam considered B2 its national when the deprivation order was made was best answered by determining Vietnam’s “settled attitude” to him once it had all the information which it needed to formulate its view. Following the receipt of the required information, nothing indicated that Vietnam had taken steps to deprive B2 of Vietnamese citizenship and so, “arbitrary” as it may be “to western eyes”, SIAC was “satisfied that that is the stance of the Vietnamese government.” Moreover, “[g]iven that both Vietnamese law and state practice give it that power, we must accept that it is effective”: para 19.