This is yet another case related to terrorism. It readily demonstrates that people from diverse backgrounds are attracted to Islamic extremism and that the UK is fertile ground for breeding fanatics. The dilemma for the UK, of course, is that an increasing number of young men and women holding British citizenship are so disillusioned with life that they are willing to embrace martyrdom in the name of “radical” Islam. Consequently, Prime Minister David Cameron has announced further powers to prevent jihadis from entering and exiting the UK (see more in “comment” below). Born in Mongai, Vietnam in 1983, the appellant, known only as “B2”, lived in Hong Kong with his parents prior to the family’s arrival in the UK in 1989. After claiming asylum they were granted indefinite leave to remain and later in 1995, when B2 was 12, they also acquired British citizenship. B2 and his parents never held Vietnamese passports and they never took any steps to renounce their Vietnamese nationality. In fact, the only document linking B2 to Vietnam is his birth certificate. (Update: read full SSRN article)
B2 is British educated. He attended a college of design and communications in Kent. He converted to Islam when he was 21 and it is contended that following his conversion he allegedly descended into Islamist extremism and travelled to Yemen (December 2010 – July 2011). The Security Service’s assessment is that (i) during B2’s trip to Yemen, Al-Qaeda in the Arabian Peninsula trained him as a terrorist; and (ii) if at liberty, B2 would pose an active threat to the safety and security of the UK and its population.
The Issue
As explained on the Supreme Court’s website, the issue at the heart of this case is:
Whether the order of the respondent Secretary of State for the Department (SSHD) under section 40(2) of the British Nationality Act 1981 (the 1981 Act) to deprive the appellant of British nationality rendered the appellant stateless within the meaning of section 40(4).
Traditionally (but see Immigration Act provisions below), under section 40(4) of the 1981 Act, the SSHD cannot make an order depriving a person of citizenship status, if she is satisfied that the order would make that person stateless. Moreover, as established by Abu Hamza v SSHD [2010] UKSIAC 23/2005 and Fransman’s British Nationality Law, Third Edition, paragraph 25.4, “stateless” in section 40(4) means de jure stateless, not de facto stateless. The wording of section 40(4) – “if he [the SSHD] is satisfied that” – needs to be construed in accordance with Article 8(1) of the Convention on the Reduction of Statelessness of 1961 (the 1961 Convention) and the statutory language does not make the SSHD’s opinion the decisive benchmark or yardstick.
A panel consisting of Lord Neuberger PSC, Lady Hale DPSC and Lords Mance, Wilson, Sumption, Reed and Carnwath JJSC is scheduled to hear this case on 18–19 November 2014.
The Deprivation Decision
Satisfied that it would be conducive to the public good, on 20 December 2011 the SSHD decided to make an order pursuant to section 40(2) of the 1981 Act – which at the time reflected substitutions made by section 4 of the Nationality, Immigration and Asylum Act 2002 (NIAA) and by section 56(1) of the Immigration, Asylum and Nationality Act 2006 – depriving B2 of his British citizenship. She did so in response to the Security Service’s evaluation that B2 had links to numerous Islamist extremists and was involved in terrorism related activities. When she served notice of decision on B2, pursuant to section 40(5), on 22 December 2011 the SSHD stated that she was satisfied that her intended order would not make B2 stateless. The SSHD also certified pursuant to section 40A(2) of the 1981 Act, that she made her decision in part in reliance on information which she thought should be withheld because its disclosure in the public domain would be contrary to the public interest.
The SSHD then deprived B2 of British nationality on the grounds set out in her earlier notice and made an order under section 40(2) of the 1981 Act and notified B2 – who was detained after service – of her intention to order his deportation to Vietnam. However, the United States of America requested that B2 be extradited to stand trial in that country and, although B2 gave notice of appeal against the deportation decision, the issue is not presently considered live. Conversely, the issue of B2’s nationality is considered live.
Proceedings Below
Consisting of Jackson, Lloyd Jones and Floyd LJJ, the Court of Appeal, [2013] EWCA Civ 616 (24 May 2013), allowed the SSHD’s appeal against the decision of the Special Immigration Appeals Commission (SIAC) where the panel (consisting of Mitting J, Allen UTJ and Mr P Nelson, see here) had allowed B2’s appeal by holding at para 19 that:
The decision of the Secretary of State to deprive the appellant of his citizenship on 22 December 2011 did make him stateless and so is not permitted under section 40(4) of the 1981 Act.
Aggrieved, the SSHD had appealed to the Court of Appeal because in her view her decision made B2 de facto stateless, but not de jure stateless and therefore it cannot make B2 stateless within the meaning of section 40(4) of the 1981 Act. She contended, in the alternative, that this could not have occurred until some time after 22 December 2011, the relevant date.
The Court of Appeal unanimously held at paras 93 and 97 that the result of the SSHD’s 22 December 2011 order was to render B2 de facto stateless but not de jure stateless and accordingly her appeal succeeded on the first ground and the second ground did not therefore arise. In delivering the judgment, Jackson LJ assured the parties at para 22 that his “conclusions are based solely on the open evidence and the open decision” and “nothing in the closed judgment” affected the Court’s reasoning.
Statelessness
A sizable chunk of the Court of Appeal’s judgment is devoted to appraising the problem of statelessness. Jackson LJ began his analysis by observing that as a matter of principle, Articles 1 and 2 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930 allow a state to determine under its own laws who its nationals are. The events of the Second World War provided impetus for defining and providing for both refugees and stateless persons and Statelessness and some of its Causes (the 1946 Memorandum) – distinguishing between de jure stateless persons (those who did not have a nationality under the law of any state) and de facto stateless persons (those who had nationality under the law of a state, but were denied the protection of the government of that state) – was therefore published by the Inter-Governmental Committee on Refugees.
After further efforts, the Refugee Convention of 1951 and the Convention relating to the Status of Stateless Persons of 1954 (establishing the obligations of Contracting States to stateless persons within their territories and related matters) came to fruition and under Article 1 the latter adopted the de jure definition of statelessness and de facto stateless persons were erroneously considered refugees. Further efforts to curb statelessness culminated in the 1961 Convention and it obliges Contracting States to grant nationality to persons who would, in a number of specified situations, otherwise be stateless. The 1961 Convention restricts the circumstances in which nationality can be lost. Under Article 8(1) “a Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless” and section 40(4) of the 1981 Act intends to put this obligation on a statutory footing in domestic UK law.
The United Nations High Commissioner for Refugees (UNHCR) is the body designated by the General Assembly to which individuals who claim the benefit of the 1961 Convention may apply for assistance for the purposes of Article 11.
Wrestling with the distinction between de jure and de facto statelessness, at para 32 et seq the Court of Appeal evaluated some criticisms regarding the distinction between these two problematic concepts. Jackson LJ agreed with UNHCR’s legal advisor Paul Weis’s opinion – as argued in The Convention Relating to the Status of Stateless Persons (1961) 10 ICLQ 255-261 – that statelessness is a purely legal concept and that it is more accurate to refer to de jure and de facto unprotected persons. But given that the terminology of the 1946 Memorandum is well-established, the Court proceeded on the basis that:
32. … de jure stateless persons means persons who are de jure unprotected by any state. In other words they fall within Article 1(1) of the 1954 Convention. De facto stateless persons means persons who possess a nationality, but are not protected by any state.
Referring to Weisbrodt and Collins, The Human Rights of Stateless Persons (2006) HRQ 254-263, Jackson LJ observed that de jure statelessness may arise because of mistakes made by law-makers, disparity between the nationality laws of different states, political problems or through other means and that de facto statelessness may also arise in a wide variety of ways. The Court noted that attempts to expand the definition of stateless persons in the 1954 Convention so as to include de facto stateless persons were unsuccessful. Reference was also made to the Massey Report 2010 where it has been argued that some categories of persons who are in fact de jure stateless have been wrongly classified in the literature as de facto stateless. Three types of persons – those not enjoying the rights arising from their nationality, those who are not able to establish their nationality and those who are attributed the nationality of a state other than their state of habitual residence – are invalidly classified as de facto stateless and “should not be considered de facto stateless at all.”
Massey develops six types of categories of persons who have problems proving their nationality and the Court of Appeal’s judgment mentions two of these, namely those whose countries may be unable or unwilling to cooperate in identifying persons who are their nationals and instances where nationality legislation may be unclear or be misinterpreted or misapplied by the executive. To celebrate the golden jubilee of the 1961 Convention, UNHCR convened a round of expert meetings on statelessness the first of which was held in May 2010 in Prato in Tuscany (the Prato Report). The Massey Report served as a prelude to this event. Jackson LJ at para 38 et seq considered that the Prato Report “contains much helpful discussion about the interpretation of Article 1(1) of the 1954 Convention” and the Court extracted paras 3 and 18 which identify the issue as not whether or not the individual has a nationality that is effective but whether or not the individual has a nationality at all. Although subtle, the distinction between not being treated as a national despite recognition and the absence of recognition are conceptually distinct problems because the first dilemma is linked to the rights attached to nationality whilst the second predicament pertains to the right to nationality itself.
In essence, within the ordinary meaning of Article 1(1), a stateless person is a person who is not considered a national by a state. Moreover, according to the Prato Report, the position under domestic law is relevant and the illegality of depriving a person of their nationality in breach of international law “is not relevant in determining whether the person is a national for purposes of Article 1(1)” because:
The alternative approach would lead to outcomes contrary to the ordinary meaning of the terms of Article 1(1) interpreted in light of the Convention’s object and purpose.
The Court of Appeal’s Rationale
Against that backdrop, at paras 42–71, Jackson LJ embarked upon a complex appraisal of Vietnamese nationality law and his lordship traced the development of the law in that country to include the following legislation: Order 53 of 1945; the 1988 Nationality Law enacted thirteen years after the re-unification of Vietnam in 1975; Decree No. 37/HDBT of 1990; the 1998 Nationality Law which followed after the new constitution of 1992; and the 2008 Nationality Law passed by the XIIth National Assembly of the Socialist Republic of Vietnam.
At the time of his birth, B2 acquired Vietnamese nationality under Order 53 and when his family travelled to Hong Kong and then to the UK this status was retained. Thereafter, no event occurred in the 1980s under Order 53 or the 1988 Nationality Law that deprived B2 of Vietnamese nationality. Equally, when he was naturalised in the UK and acquired British citizenship in 1995, he did not lose Vietnamese nationality and Jackson LJ discerned at para 74 that “B2 did not apply for or secure permission to relinquish Vietnamese nationality in accordance with Article 9 of the 1988 Law.” The upshot was that the 1990 Decree applied to him and he became a dual Vietnamese and British national and whilst he was resident in the UK he nevertheless remained Vietnamese and retained the protection of that country’s government. When the 1998 law entered into force the following year, the position did not change and B2 did not obtain permission or seek permission to renounce his Vietnamese nationality and the entering into force in 2009 of the 2008 law did not change anything.
When the SSHD deprived B2 of his British nationality in 2011, Vietnam rejected him as a Vietnamese citizen and SIAC found this to be deliberate. Yet Vietnam has done nothing since to deprive B2 of his Vietnamese nationality and that country maintains that he is not Vietnamese and did not hold that its nationality at the date of the SSHD’s decision.
Like SIAC, Jackson LJ accepted at para 69 the position of B2’s expert, which was not under attack, that “Vietnam is a communist state, in which the executive controls the courts and not vice versa.” Equally, at para 70 his lordship recalled that SIAC considered it “naïve” to think that executive “decisions [in Vietnam] could be effectively challenged in the courts.”
In answering the critical question – does the SSHD’s decision of 22 December 2011 render B2 de jure stateless or de facto stateless? – the Court of Appeal rather preferred the SSHD’s position that B2 was de facto stateless. (This was so notwithstanding Jackson LJ’s acceptance at para 87 that the arguments “on both sides are powerful ones.”) The Court of Appeal observed that Mitting J’s questioning of the appellant’s expert (Ambassador Nguyen Quy Binh) resulted in the conclusion that the ambiguous state of the 1988 Nationality Law in Vietnam allowed the government to pick and choose “in practice” (but not “openly and legally”) which people of Vietnamese origin it would accept back into Vietnam. It was argued for the SSHD that the same applied to the 2008 Law and B2’s case was a classic example of Vietnam’s regime rendering certain citizens de facto stateless. Holding that the two Massey categories relied upon by B2 were not engaged because Vietnam’s cooperation was not required and that the law of Vietnam was not ambiguous, Jackson LJ also held that B2 had been rendered de facto stateless but not de jure stateless because:
88. The position under Vietnamese nationality law is tolerably clear. B2 retained his Vietnamese nationality through all the events of the 1980s and the 1990s. The 2008 Law did not change B2’s legal status. The fact that in practice the Vietnamese Government may ride roughshod over its own laws does not, in my view, constitute “the operation of its law” within the meaning of Article 1(1) of the 1954 Convention. I accept that the executive controls the courts and that the courts will not strike down unlawful acts of the executive. This does not mean, however, that those acts become lawful.
91. The Vietnamese Government has now, apparently, decided to treat B2 as having lost his Vietnamese nationality. They have reached this decision without going through any of the procedures for renunciation, deprivation or annulment of Vietnamese nationality as set out in the 2008 Law and its predecessors. I do not accept that this can be characterised as the “position under domestic law” as that phrase is used in paragraph 18 of the Prato Report.
92. If the relevant facts are known and on the basis of those facts and the expert evidence it is clear that under the law of a foreign state an individual is a national of that state, then he is not de jure stateless. If the Government of the foreign state chooses to act contrary to its own law, it may render the individual de facto stateless. Our own courts, however, must respect the rule of law and cannot characterise the individual as de jure stateless. If this outcome is regarded as unsatisfactory, the remedy is to expand the definition of stateless persons in the 1954 Convention or in the 1981 Act, as some have urged. The remedy is not to subvert the rule of law. The rule of law is now a universal concept. It is the essence of the judicial function to uphold it.
Immigration Act 2014
It is interesting that section 66 (Deprivation of citizenship: conduct seriously prejudicial to the interests of the UK) of the Immigration Act 2014 (the 2014 Act) adds to the SSHD’s existing armoury as regards depriving a person of their citizenship. Under the 1981 Act, deprivation was achievable in cases where either a person has acquired British citizenship using fraud, false representation or concealment of a material fact (section 40(3)) or, as in the case of B2, where the SSHD is satisfied that deprivation is “conducive to the public good” and the person would not be left stateless as a result (sections 40(2) and 40(4)).
Section 66(1) of the 2014 Act amended section 40 of the 1981 Act by inserting new subsection (4A) to create a sub-category of cases which enables the SSHD to deprive, by order, a person of their British citizenship status – irrespective of whether or not it will render them stateless – where the person has:
- Acquired citizenship as a result of naturalisation; and
- Conducted themselves in a manner seriously prejudicial to the vital interests of the UK (and so for this reason it is conducive to the public good to deprive that person).
The order requires the SSHD to have reasonable grounds to believe that the person is able, under the law of a country or territory outside the UK, to become a national of such a country or territory. Section 66(2) of the 2014 Act provides that when deciding to make an order under of section 40(2) of the 1981 Act, the SSHD may take into account the manner in which a person conducted himself before the section 66 provision came into force.
However, since power remains concentrated in the hands of the executive, section 40B is inserted into the 1981 Act by section 66(3) of the 2014 Act to ensure that the SSHD is required to arrange a review – and its outcome to be laid before Parliament initially after one year and subsequently after every three years – of the use of the section 40(4A) power.
Overall, section 66 of the 2014 Act aims to deal with the most serious cases – related to national security, terrorism, espionage or taking up arms against British or allied forces. Provided that there are reasonable grounds to believe that the person concerned is able to become a national of another country or territory, section 66 empowers the SSHD to deprive an individual of British citizenship acquired by means of naturalisation irrespective of whether or not deprivation will render the person stateless. The UK, which ratified the 1961 Convention on 29 March 1966, believes that section 66 of the 2014 Act achieves superior alignment with the 1961 Convention (which allowed states to declare on ratification that they retain the right to deprive a person and render them stateless in specific circumstances). Upon ratification, the UK explicitly retained the right to deprive where the person either:
- Has, in regard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another state, or
- Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.
Without a doubt, B2 should be a firecracker case in the UK Supreme Court. Of course, the larger socio-political questions in all of the above are: what motivates this fresh generation of jihadis, many of whom are not even born into Islam, to travel faraway to harsh and inhospitable places like Afghanistan, Yemen, Syria, Somalia etc to participate in absolute insanity? Equally, do they even care if they are deprived of British citizenship?
Comment
As is well-known, just over a year ago in SSHD v Al-Jedda [2013] UKSC 62 – an infamous case about an Iraqi who entered the UK and claimed asylum and whose epic legal battles adorn the law reports for us to admire – remembering the manner in which the Jews of Germany were stripped of their citizenship of the German Reich under the Reich Citizenship Law of 1935, the Supreme Court chose to describe statelessness as “evil”. (This is a fitting description indeed because in its Global Action Plan to End Statelessness 2014-2024, UNHCR explains that “at least 10 million people worldwide continue to suffer the privations and indignity of being denied nationality.”) The Court therefore upheld the Court of Appeal’s decision to quash the SSHD’s order purporting to deprive Mr Al-Jedda of British citizenship because its effect would be to make him stateless as he had automatically lost his Iraqi nationality under that country’s law. The Court held that the question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship.
Interestingly, Lord Wilson JSC – with whom Lord Neuberger PSC, Lady Hale DPSC, and Lords Carnwath and Mance JJSC agreed – also mentioned B2’s case as authority in relation to the use of the word “satisfied” in section 40(4) and the Court observed at para 30 that in performing its function the appellate body must “determine for itself whether the ground exists and/or whether the order would make the person stateless … and not simply to determine whether she had reason to be satisfied of those matters.”
In Al-Jedda, both the Supreme Court at para 22 and the Court of Appeal at paras 137-40 observed that by adding subsection (4) to section 40 of the 1981 Act, “Parliament went further than was necessary in order to honour the UK’s existing international obligations”. Section 4(1) of the NIAA amended section 40 of the 1981 Act and introduced the prohibition on rendering someone stateless on grounds relating to their behaviour after acquiring citizenship. The amendment, which entered into force on 1 April 2003, essentially reflected the terms of Article 7(1)(d) of the European Convention on Nationality 1997, which the UK was considering signing but did not sign.
So section 66 of the 2014 Act turns the clock back to the pre-April 2003 position and is a retrograde measure despite the logic that the UK had been too generous in the past. But then again, from the SSHD’s perspective, since an abundance of British passport holders are so disgruntled with the “British way of life” that they are turning to jihad to murder innocent people, perhaps it is not a step backwards after all?
As noted above, the situation is particularly explosive because during his G20 trip to Australia, a country which has just passed its own Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, David Cameron announced fresh powers to stop suspected “gap year” jihadis from re-entering the UK unless they agreed to strict controls. On the other hand, he has not said that his plans, which envisage carriers’ liability for airlines transporting radicalised individuals, would make British born jihadis stateless.
One problem with existing legislation as regards deprivation of citizenship is that it is toothless against British born jihadis and can only be used against suspected terrorists such as B2 who have become British citizens through the process of naturalisation. The UK’s new Counter-Terrorism Bill, which is expected to be published by the end of this month, and has been in the offing since September, is also aimed at empowering the authorities to stop jihadis from exiting the UK. These measures have been vetted as “legal” by Lord Carlile – who has ironically just suffered quite a massive defeat at the government’s hands in R (Lord Carlile of Berriew & Ors) v SSHD [2014] UKSC 60 where the Supreme Court dismissed his appeal regarding the Iranian dissident Mrs Maryam Rajavi, the head of the Mojahedin e-Khalq organisation, entering the UK at the invitation of hundreds of parliamentarians.
United Kingdom Immigration Law Blog 
It will be interesting to see what the Prime Minister says about making British born citizens stateless who are fighting in foreign wars overseas?
It’s amazing of our government that they can confiscate passports of British citizens but EU citizens of similar character are welcome. How would it stop terrorism?
See http://eulawanalysis.blogspot.co.uk/2014/11/rottmann-rules-uk-can-british.html Simon Cox’s most excellent coverage of the actual hearing itself: if unfortunately you could not watch it like me!
http://curia.europa.eu/juris/document/document.jsf?docid=75336&mode=lst&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=350436 ]
EU law point:
In Case C‑135/08, REFERENCE for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany), made by decision of 18 February 2008, received at the Court on 3 April 2008, in the proceedings Janko Rottmann v Freistaat Bayern
As Mr Cox says: “EU law is also at stake. Aside from statelessness, Pham complained of his loss of EU citizenship under Article 20 TFEU. Pham relied on C-135/08 Rottmann to argue that this result meant the British deprivation decision could only be taken with due regard to EU law, in particular, proportionality.”
G1 v Secretary of State for the Home Department [2012] EWCA Civ 867 (04 July 2012)
http://www.bailii.org/ew/cases/EWCA/Civ/2012/867.html
THE THIRD GROUND OF APPEAL
Mr Southey submits that the appellant has suffered discrimination by being prevented from attending his statutory appeal, in contrast to the position of an alien appealing against the revocation of his leave to remain who would be entitled to be present. Save for one point on Article 14 of the European Convention on Human Rights, to which I will come, the argument wholly depends on the application of European legislative measures which forbid discrimination – Article 18 of the Treaty on the Functioning of the European Union (TFEU) and Article 21 of the Charter; Mr Southey referred also to Article 31(4) of the Citizens Directive. The first question is whether these or any provisions of EU law are engaged in the case at all.
Does the Law of the European Union Apply?
Mr Southey submits that the way in, so to speak, lies in the fact that because the loss of national citizenship entails the loss also of EU citizenship (conferred by Article 9 of the Treaty on European Union and Article 20(1) of TFEU), the deprivation of the citizenship of a national of an EU Member State “falls within the ambit of EU law”. He relies principally on the decision of the Court of Justice of the European Union in Rottmann v Bayern [2010] ECR 1-1449.
Mr Rottmann was an Austrian citizen by birth. He moved from Austria to Munich and applied for German nationality, which he obtained by naturalisation. He thereby lost his Austrian citizenship. But he had deceived the German authorities in the course of the naturalisation procedure (by concealing the existence of criminal process against him in Austria). His German citizenship was withdrawn with retroactive effect. The result, on the face of it, was that Mr Rottmann became stateless and lost his citizenship of the EU which was, of course, an incident of his citizenship of a Member State – originally Austria. The Administrative Court of Bavaria sought a preliminary ruling of the Court of Justice. The first question asked was in these terms:
“Is it contrary to Community law for Union citizenship… to be lost as the legal consequence of the fact that the withdrawal in one Member State…, lawful as such under national… law, of a naturalisation acquired by intentional deception, has the effect of causing the person concerned to become stateless because… he does not recover the nationality of another Member State… which he originally possessed, by reason of the applicable provisions of the law of that other Member State?
It was submitted to the Court of Justice that the rules on the acquisition and loss of nationality fall within the competence of the Member States (judgment, paragraph 37). In particular:
“38 The German and Austrian Governments also argue that when the decision withdrawing the naturalisation of the applicant in the main proceedings was adopted, the latter was a German national, living in Germany, to whom an administrative act by a German authority was addressed. According to those governments, supported by the Commission, this is, therefore, a purely internal situation not in any way concerning European Union law, the latter not being applicable simply because a Member State has adopted a measure in respect of one of its nationals. The fact that, in a situation such as that in the main proceedings, the person concerned exercised his right to freedom of movement before his naturalisation cannot of itself constitute a cross-border element capable of playing a part with regard to the withdrawal of that naturalisation.”
The Court held:
“39 It is to be borne in mind here that, according to established case law, it is for each member state, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality: see Micheletti (Case C-369/90) [1992] ECR I-4239, para 10; Belgian State v Mesbah [1999] ECR I-7955, para 29 and Chen v Secretary of State for the Home Department (Case C-200/02), para 37.
…
42 It is clear that the situation of a citizen of the Union who… is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law.
43 As the Court has several times stated, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (Grzelczyk [2001] ECR I-6193, paragraph 31; Baumbast and R [2002] ECR I-7091, paragraph 82).
44 Article 17(2) EC attaches to that status the rights and duties laid down by the Treaty, including the right to rely on Article 12 EC in all situations falling within the scope ratione materiae of Union law…
45 Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law (Micheletti and Others [1992] ECR I-4239 paragraph 10…).
46 In those circumstances, it is for the Court to rule on the questions referred by the national court which concern the conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status.
47 In this regard, the national court essentially raises the question of the proviso formulated in the Court’s case-law cited in paragraph 45 above, to the effect that the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law…
48 The proviso that due regard must be had to European Union law does not compromise the principle of international law previously recognised by the Court… that the Member States have the power to lay down the conditions for the acquisition and loss of nationality, but rather enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation such as that at issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law.”
The court went on to hold that a withdrawal of naturalisation on account of deception practised in obtaining it “corresponds to a reason relating to the public interest” (paragraph 51) and “cannot be considered to be an arbitrary act” (paragraph 53: the court refers to “the general principle of international law that no one is arbitrarily to be deprived of his nationality”); but it was for the national court to consider whether the decision in the particular case “observes the principle of proportionality” (paragraph 55). I should cite paragraph 56:
“56 Having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.”
Mr Southey submits that the reasoning in Rottmann applies to the present case, and its effect is that in the procedures applicable to his appeal the appellant must be accorded the benefit of the anti-discrimination measures prescribed by EU law. In a note submitted after the hearing he relied also on the decisions of the Court of Justice in Zambrano [2012] 2 WLR 886 and McCarthy [2011] 3 CMLR 10. These cases were, however, concerned with decisions of a Member State which would or might affect the enjoyment of rights enjoyed by EU citizens whose entitlement to citizenship was not itself in question. They do not, I think, assist in ascertaining the scope of the Rottmann judgment, though I shall make further brief reference to both of them.
Mr Eicke submits that Rottmann was concerned with a special state of affairs. Mr Rottmann’s EU citizenship originally derived from his Austrian nationality, which he had from birth. Only the circumstances of his moving to Germany (and so, Mr Eicke would say, his exercise of free movement rights) led to the deprivation of his EU citizenship, albeit through his own fault. The present case, by contrast, concerns a wholly internal situation to which the decision in Rottmann does not apply.
I have with great respect found some difficulties with the reasoning in Rottmann. On the one hand there are passages which appear to suggest that national courts must “have due regard to European Union law” in adjudicating upon a question of deprivation of citizenship (because that entails the deprivation of EU citizenship) even where there is no cross-border element in the case: Mr Southey would I think emphasise in particular the terms of paragraphs 45 and 48. But there are also elements suggesting that the particular history – the applicant’s having lost his Austrian nationality upon moving to Germany and seeking naturalisation there – informed the court’s reasoning, notably paragraphs 42 (“…after he has lost the nationality of another Member State that he originally possessed…”) and 56 (“whether it is possible for that person to recover his original nationality”).
Moreover this uncertainty as to the decision’s scope betrays, to my mind, a deeper difficulty, which may be explained as follows. The distribution of national citizenship is not within the competence of the European Union. So much is acknowledged in Rottmann itself (paragraph 39, cited by Advocate General Sharpston in her Opinion in Zambrano, paragraph 94), as is “the principle of international law… that the Member States have the power to lay down the conditions for the acquisition and loss of nationality” (Rottmann paragraph 48). Upon what principled basis, therefore, should the grant or withdrawal of State citizenship be qualified by an obligation to “have due regard” to the law of the European Union? It must somehow depend upon the fact that since the entry into force of the Maastricht Treaty in 1993 EU citizenship has been an incident of national citizenship, and “citizenship of the Union is intended to be the fundamental status of nationals of the Member States” (Rottmann paragraph 43 and cases there cited).
But this is surely problematic. EU citizenship has been attached by Treaty to citizenship of the Member State. It is wholly parasitic upon the latter. I do not see how this legislative circumstance can of itself allocate the grant or withdrawal of State citizenship to the competence of the Union or subject it to the jurisdiction of the Court of Justice. Article 17(2) of the EC Treaty (“Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby”), referred to at paragraph 44 of the Rottmann judgment, does not purport to have any such consequence. A generalised aspiration to the enjoyment of a “fundamental status” can surely carry the matter no further. In the result I am none the wiser as to the juridical basis of an obligation to “have due regard” to the law of the European Union in matters of national citizenship.
Nor is it clear what is meant by such an obligation, or by the proposition that decisions as to the loss or acquisition of citizenship are “amenable to judicial review carried out in the light of European Union law” (Rottmann paragraph 48). Some passages (see paragraphs 53 and 55) suggest that the court has in mind, primarily at least, only the application of general principles: proportionality and the avoidance of arbitrary decision-making. But if that is right, I apprehend it would not be enough for Mr Southey. His argument was grounded on provisions of black-letter EU law: TFEU Article 18, Article 21 of the Charter, and Article 31(4) of the Citizens Directive.
In these circumstances I consider with respect that the Rottmann decision has to be read and applied with a degree of caution. It cannot in my judgment be applied so as to require that in a case such as this the adjudication of a decision to deprive an individual of citizenship must be conducted subject to any rules of law of the European Union. On the facts, as Mr Eicke submitted, there is no cross-border element whatever. There has been no actual, attempted or purported exercise of any right conferred by EU law. From first to last this is a domestic case. Quite aside from the difficulties as to the scope of EU competences,
“it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to situations which have no factor linking them with any of the situations governed by European Union law and which are confined in all relevant respects within a single Member State…” (McCarthy, paragraph 45)
For all these reasons Rottmann cannot in my judgment be read as importing any part of Mr Southey’s panoply of black-letter EU law into the process of the appellant’s appeal under s.40A. The effectiveness of the appellant’s available remedies is given by the standards of the common law. Those standards, to be found in the principles of our public law, are well apt to vindicate “the general principle of international law that no one is arbitrarily to be deprived of his nationality” (Rottmann paragraph 53).
There is a further dimension to which I ought to refer. The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution; for they identify the constitution’s participants. If it appeared that the Court of Justice had sought to be the judge of any procedural conditions governing such matters, so that its ruling was to apply in a case with no cross-border element, then in my judgment a question would arise whether the European Communities Act 1972 or any successor statute had conferred any authority on the Court of Justice to exercise such a jurisdiction. We have not heard argument as to the construction of the Acts of Parliament which have given the Court powers to modify the laws of the United Kingdom. Plainly we should not begin to enter upon such a question without doing so. That in my judgment is the course we should have to adopt if we considered that the Court of Justice, in Rottmann or elsewhere, had held that the law of the European Union obtrudes in any way upon our national law relating to the deprivation of citizenship in circumstances such as those of the present case. But I do not think it has.
For the reasons I have given the law of the EU cannot, in my judgment, assist Mr Southey.
The Appellant’s Substantive Argument
Subject to the point on ECHR Article 14, these conclusions (if my Lords agree with them) dispose of the third ground of appeal against the appellant. However I should make brief reference to the substance of Mr Southey’s EU case on discrimination, both for completeness and to elucidate the Article 14 argument.
MK (Tunisia), to which I have already referred, shows that an alien resident in the UK who leaves the country and is served with a decision cancelling his leave to remain is entitled to return here to exercise his statutory right of appeal against the cancellation. That arises, as the judgments show, by force of s.3D of the Immigration Act 1971. Mr Southey submits that the appellant is effectively in like case, but is the victim of the absence of any analogous provision relating to persons abroad with an extant appeal against deprivation of their citizenship.
TFEU Article 18 (second paragraph) provides:
“Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”
Article 21(2) of the Charter provides:
“Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”
I should notice also Article 51(2) of the Charter:
“This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”
Chapter VI of the Citizens Directive (200458/EC) deals with free movement restrictions imposed on grounds (inter alia) of public security. Article 31(1) requires that there should be a right of appeal (“redress procedure”) against expulsion decisions. Article 31(4) provides:
“Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.”
The terms of Article 18 TFEU and Article 21(2) of the Charter to my mind underline my conclusion that these provisions cannot apply in the present case. Their scope or reach is firmly located within the EU competences: “within the scope of application of the Treaties/Treaty”. In the case of the Charter, the point is given added emphasis by Article 51(2). In ZZ v Secretary of State [2011] EWCA Civ 440 Maurice Kay LJ said this at paragraph 16:
“[W]hat the Charter does not and cannot do is to give birth to rights, freedoms and principles in areas in which the Treaties claim no rule-making competence but acknowledge the exclusive competence of Member States. This is spelt out in art 51(2) of the Charter…”
Article 31(4) of the Citizens Charter is not on its face an anti-discrimination provision. Mr Southey’s submission is, however, that it has to be applied without discrimination. But any comparator to be set alongside the appellant for the purpose of such an exercise would be, as I see it, a European citizen who is a citizen of another Member State.
Mr Southey relied on the case of Impact v Minister for Agriculture and Food (C-268/06). He submitted that paragraphs 43 – 45 of the judgment show that procedures in the field of EU rights should be no less effective than equivalent procedures where there is no EU element, and the equivalent non-EU case here would be the alien appellant in MK (Tunisia). But the submission’s premise is that we are in the field of EU rights; and I have held that we are not.
I should add that in any event I entertain some doubt whether such difference in treatment as there is between a person in the appellant’s position and an alien whose leave to remain has been cancelled – the MK (Tunisia) case – constitutes discrimination. The two situations are not readily comparable. The alien and the citizen (or ex-citizen) claim rights which are different in nature. Citizenship is a personal status primarily obtained by descent; the citizen might never have set foot in the country of his nationality. By contrast the rights of the resident alien consist in or arise from his presence here or his claim to be present. The citizen may be said to be less vulnerable than the alien: he cannot be deprived of his citizenship if that would render him stateless (s.40(4) of the 1981 Act). The fact that the appellant or claimant in each case seeks a like outcome – his return here to pursue an appeal – is not itself a basis upon which to hold that their situations are comparable.
But the principal ground on which I would reject Mr Southey’s discrimination argument based on EU law is that EU law has no application to the case.
ECHR Article 14
The appellant seeks to deploy Article 14 of the European Convention on Human Rights, which as is well known provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
As the text demonstrates, Article 14 only regulates the distribution of other substantive rights set out in the Convention. Citizenship is not one of them. Recognising as much, Mr Southey submits that the appellant’s Article 8 right to respect for his private or family life is affected, and by that route Article 14 is engaged. But this case has nothing whatever to do with Article 8. The appellant is not asserting a claim to re-enter the United Kingdom in order to enjoy rights conferred by Article 8 (however much he might deploy arguments based on Article 8 in the course of his substantive appeal). The attempts to engage Article 14 through the gateway of Article 8 is in my judgment artificial and adventitious.
NEW POINT
Mr Southey has raised a fresh argument in his skeleton, for which he does not have permission. It is put thus:
“The notice of the decision to make an order to deprive the appellant of his citizenship did not, contrary to the rights of a foreign national identified in E1 v Secretary of State [2012] EWCA Civ 357, inform the appellant that he may appeal from within the United Kingdom until he has been deprived of citizenship by order and/or excluded.” (revised skeleton paragraph 3.24)
In my judgment this is unarguable. Regulations 4 and 5 of the Immigration Notices of Regulations 2003 which were critical to the decision in E1, have no application to a decision to deprive someone of British citizenship because, as I have already indicated, it is not an “immigration decision” within the meaning of s.82 of the 2002 Act. The only notice requirements which do apply to such a decision are those provided for in s. 40(5) of the 1981, which I have read, and which were fulfilled in this case in conformity with Regulation 10 of the of Nationality Regulations which I need not set out.
Nor is there any force in an argument about notice seen as an adjunct of any other part of Mr Southey’s case. He submits that if the appellant had been told in the notice of the decision to deprive him of his citizenship that he had an in-country right of appeal, he could have exercised it before the order was made on 14th June. But the rules gave him no right to such a notice; its absence cannot generate a discrimination argument; and for reasons I have given EU law cannot help him.
CONCLUSION
I would dismiss the appeal.
http://www.freemovement.org.uk/statelessness-deprivation-of-nationality-and-eu-citizenshipwhat-is-b2-in-the-supreme-court-really-all-about/