Supreme Court: EU Law Fails Vietnamese Jihadist

Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015) – read fully updated article on SSRN.

In the case of Pham (formerly “B2”), Lord Neuberger PSC, Lady Hale DPSC and Lord Mance, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath JJSC unanimously dismissed the suspected terrorist’s appeal. The Supreme Court held that Pham was a Vietnamese national at the time the Home Secretary deprived him of his British citizenship. The key issue for the court was whether the British Nationality Act 1981 (“the 1981 Act”) prevented the Home Secretary from depriving Pham of British citizenship because making an order of that nature would cause him to become stateless. The answer depended on the 1954 Convention relating to the Status of Stateless Persons (“the 1954 Convention”) and whether the alleged Al Qaeda trainee was “a person who is not considered as a national by any state under the operation of its law”. In the Supreme Court, Pham raised a new ground and argued that the deprivation decision was disproportionate and unlawful under EU law. However, the court did not find it necessary to resolve the dispute about EU law.

Born in Vietnam (Mongai) in 1983, Pham 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 they also acquired British citizenship. Pham and his parents never held Vietnamese passports and they never took any steps to renounce their Vietnamese nationality. In fact, the only document linking Pham to Vietnam is his birth certificate. He attended a college of design and communications in Kent and converted to Islam when he was 21 and it is contended that he subsequently descended into Islamic extremism and travelled to Yemen (December 2010 – July 2011).

Overview

The Security Services assessed that during Pham’s trip to Yemen, Al-Qaida in the Arabian Peninsula trained him as a terrorist and he therefore became a threat to the safety and security of the UK. As Lord Carnwath observed, the assessment has not been judicially tested. Pursuant to section 40(2) of the 1981 Act, the Home Secretary decided to make an order depriving Pham of his British citizenship as this would be conducive to the public good. The Special Immigration Appeals Commission (SIAC, see here) allowed Pham’s appeal because the decision made him stateless and was not permitted under section 40(4) of the 1981 Act.

Court of Appeal

Before Jackson, Lloyd Jones and Floyd LJJ, [2013] EWCA Civ 616 (see here), the Home Secretary argued that the decision made Pham de facto stateless (with nationality but denied the protection which should go with it), but not de jure stateless (without nationality under the laws of any state) and therefore it did not make him stateless within the meaning of section 40(4) of the 1981 Act. It was also alternatively argued that this could not have occurred until some time after 22 December 2011, the date of notification and service of the deprivation order. Pham was also notified of the decision to deport him to Vietnam which refused to accept him as its citizen. The Court of Appeal unanimously held that the result of the order was to render Pham de facto stateless but not de jure stateless and the Home Secretary’s appeal succeeded on the first ground and the second ground did not therefore arise.

Extradition to USA: Administrative Court

In the Administrative Court, Pham argued that if his Supreme Court appeal about his disputed citizenship succeeded it may have a significant effect on the application of his article 6 ECHR rights in the context of extradition proceedings. Aikens LJ and Simon J, [2014] EWHC 4167 (Admin) described Pham as “a British resident” and dismissed his appeal; the court held at para 91 that in its “view whether the appellant is a British citizen or not makes no difference to his relevant article 6 rights.” According to the Supreme Court’s judgment, Pham’s extradition was due no later than 26 February 2015.

The Supreme Court

Key issues upon appeal to the Supreme Court involved the interpretation of the 1954 Convention and loss of Union citizenship. The court said that “stateless” in section 40(4) of the 1981 Act has the same meaning as article 1(1) of the 1954 Convention. The parties accepted this construction and Lord Carnwath observed at para 20 that the French and Spanish versions are equally authentic to the English text. Even relatively early on in his judgment at para 30 Lord Carnwath adopted an unsympathetic tone in relation to the accused terrorist’s case by letting it be known that citing the decision of the European Court of Human Rights in Kuric v Slovenia (2013) 56 EHRR 20 (relied on by the intervening Open Society Justice Initiative) threw no light on the issues because it was not concerned with statelessness within the meaning of the 1954 Convention.

On the issue of the interpretation of the 1954 Convention, Lord Carnwath recognised that the question turning on article 1(1) of the 1954 Convention in Pham’s case was not to be automatically decided purely by reference to Vietnamese nationality legislation because reference may also be made to the practice of the government (even if not subject to effective challenge in the courts). But the court dismissed the appeal because it could not find any:

38. … evidence of a decision made or practice adopted by the Vietnamese government, which treated the appellant as a non-national “by operation of its law”, even adopting the broadest view of those words as interpreted by the UNHCR; nor in any event of one which was effective at the date of the decision.

So in reality, on 22 December 2011, Pham had Vietnamese nationality whereas on learning that he would be deported, Vietnam declined to accept him. Lord Carnwath discerned that the problem with SIAC’s reasoning was flawed because a Vietnamese court could determine a status as at a particular date in the past, but that Vietnamese law did not point towards such a power being vested in the executive, nor did it purport “to make such a retrospective determination” in Pham’s case.

As regards EU law, Pham contended that his case also raised a question about whether the deprivation decision also deprived him of citizenship of the European Union and if so what, if any, role the principles of proportionality would play. The EU law point amplified the procedural advantages provided by ZZ (France) [2013] QB 1136 (see here) that were unavailable under national law. For Pham, because no other state would recognise him as a national and he would be denied all the benefits of any citizenship anywhere, it was disproportionate to deprive him of EU citizenship and deny him his “right to rights”. Proportionality would also be offended because the same aim was achievable by “less onerous means” and the risk posed by Pham was manageable under the Terrorism Prevention and Investigation Measures Act 2011.

The EU law point was not made before the Court of Appeal because it was considered that the decision in G1 (Sudan) [2013] QB 1008 (Laws, Rix and Lewison LJJ) did not allow it to be raised. G1 was naturalised as a British citizen in 2000 (after arriving in the UK as a child and being granted indefinite leave to remain as the child of his refugee father). His participation in protests against Israeli atrocities in Gaza caused his arrest in 2009 but he preferred to skip bail and return to Sudan and, a fugitive from justice, remains there at large. His behaviour evoked the government’s wrath and he was deprived of his British citizenship.

Pham asserted European citizenship rights. In addition to the key case of Rottmann v Freistaat Bayern [2010] ECR I-1449 numerous other authorities such as Kaur [2001] All ER (EC) 250, McCarthy [2011] All ER (EC) 729 Zambrano [2011] ECR I-1177 and Dereci [2011] ECR I-11315 were analysed and applied to his case. Pham and the Open Society Justice Initiative argued that if the Supreme Court was in any doubt on the application of EU law, it should refer the ambiguity to the Court of Justice of the European Union (CJEU).

Dr Rottman acquired German nationality by naturalisation and automatically lost his original Austrian nationality. He was born in Graz (Austria) and moved to Munich (Germany) in 1995 because he was suspected of serious fraud on an occupational basis in the exercise of his profession. (His move was a “cross-border” element.) In 1997, a warrant was issued against him in Austria and during the process of naturalising as a German citizen he did not disclose the criminal proceedings against him in Austria. Consequently, because of his deception, Rottman’s certificate of naturalisation was withdrawn by the Freistaat Bayern (Bavaria, Germany). The issue was whether the deprivation decision – not only depriving Rottman of German citizenship but also of European citizenship – meant that it had to be made in accordance with European principles, including that of proportionality.

In Rottmann, Advocate General Maduro had found that a case involving a foreign element/cross-border dimension would come within the scope of Community law. In his analysis, Lord Carnwath observed that the CJEU concurred with Advocate General Maduro but unlike him did not overtly depend on any cross-border element. The CJEU did not expressly state that a decision in relation to the acquisition or loss of national citizenship is outside the scope of EU law and the Supreme Court found this problematical. The CJEU considered acquisition and loss of nationality to be affairs of domestic competence but also said that in situations covered by EU law the national rules must comply with the principle of proportionality in withdrawing nationality. Particularly at para 45 the CJEU held that “the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law.”

In G1 (Sudan), Laws LJ at para 39 found EU citizenship to be “wholly parasitic” on citizenship of the member state(s). This was “surely problematic” and the court failed to see how the legislative machinery allocated “the grant or withdrawal of State citizenship to the competence of the Union or subject it to the jurisdiction of the Court of Justice.” Laws LJ did not construe Rottmann as conferring a “panoply of black-letter EU law” into the process of G1’s case. Rather, he held that the effectiveness of G1’s remedies needed to be judged with reference to the standards of the common law.

An additional point of competence under the EU Treaty intersected with the constitution, and identified its participants, because “[t]he conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State.” Surely, in the absence of a cross-border element, it was wrong to give the CJEU the jurisdiction to judge any procedural conditions governing, conferring, withholding or revoking citizenship without first knowing whether Parliament (under the European Communities Act 1972 or elsewhere) had relinquished its role to the CJEU to modify the UK’s laws.

From that perspective, it was highly unlikely that EU law obtruded national law. In truth, Rottmann and the CJEU did not rule the UK, Laws LJ did and he did not accept that UK law allowed the CJEU as having jurisdiction to modify the mechanics of the 1981 Act.

Pham relied on Zambrano and Dereci to argue that the Treaty precluded national measures producing the effect of depriving citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens. But as demonstrated by Harrison (Jamaica) [2012] EWCA Civ 1736, the idea was controversial and it sufficed to say that Laws LJ’s weighty questions in G1 (Sudan) remained unanswered.

Against this, like Laws LJ, Lord Carnwath at para 58 expressed concern as regards the difficult issue of “whether the European Communities Act 1972 or any successor statute had conferred any authority on the Court of Justice to exercise such a jurisdiction”. Prior to making a reference to the CJEU, this important issue needed to be aired in the Court of Appeal or the Supreme Court. But even before reaching that stage, as a fact-finding tribunal, SIAC first needed to:

59. … identify the respects in which a decision on these legal issues might be necessary for disposal of the case, including how the EU requirement of proportionality would differ in practice in the present case from proportionality under the European Convention on Human Rights, an issue already before SIAC, or from applying domestic law principles.

Accordingly, the scope of Pham’s appeal was limited and no EU law point was in play and the case was therefore confined to the narrow question of statelessness within the meaning of section 40 of the 1981 Act.

Lord Carnwath endorsed the earlier approach in Kennedy [2014] UKSC 20, where the majority espoused a flexible approach to principles of judicial review, particularly where important rights are at stake. He held that it was all the more important in a case involving the removal of citizenship that the nature and intensity of review may not differ whether under domestic law or EU law. In relation to the question whether – as demonstrated by ZZ (France) where the CJEU prescribed strict rules for limiting disclosure on grounds of national security – EU law provided greater procedural safeguards than domestic law, at para 61 Lord Carnwath found it “impossible to judge in the abstract what practical effect that might have and this is best considered by SIAC.”

Lord Mance also reasoned that prematurely resolving the dispute over EU law was “unnecessary” and “inappropriate”. He moreover noted that the McCarthy, Zambrano and Dereci line of authorities concerned rights attaching to Union citizenship while it subsists (rather than its withdrawal) and that Pham’s reliance on Rottmann was misplaced because as indentified by Laws LJ in G1 (Sudan), EU law is part of UK law only to the extent that Parliament has legislated that it should be under the European Communities Act 1972. As Lord Mance said:

it is clearly very arguable that there are under the Treaties jurisdictional limits to European Union competence in relation to the grant or withdrawal by a Member State of national citizenship.

For Lord Mance, the national law of the member state concerned determined the question of whether an individual possesses the nationality of that state: the point was historical. Unless domestic law gave the CJEU unrestricted and unappealable power to decide and enlarge the scope of EU law, it was ultimately for the national court to assess consistency with its own domestic constitutional arrangements, including what jurisdictional limits exist on the competence of EU institutions. Adopting Professor Dr Lübbe-Wolff’s (of the Bundesverfassungsgericht) belief that proportionality is a “rationalising heuristic tool … directing attention to different aspects of what is implied in any rational assessment of the reasonableness of a restriction”, the eminent jurist ironed out the creases and held that context determines the appropriate intensity of review irrespective of whether the review is conducted under EU, ECHR or common law.

In light of Blackstone’s Commentaries on the Laws of England, Bancoult (No 2) [2008] UKHL 61 and Pomiechowski [2012] UKSC 20, Lord Mance explained that depriving someone of British citizenship was a radical step on any view, especially where the person had no attachment to any other country. His Lordship concurred with Lord Carnwath and Lord Sumption that proportionality could in principle be an appropriate standard of review at common law for a decision removing a status as fundamental as citizenship.

Lord Sumption advanced an absorbing analysis from the viewpoint of CCSU [1985] AC 374. Explaining that the decision in Pham’s case was “a single indivisible act”, he expressed reservations about applying the test of proportionality to the European citizenship component and not to British nationality. The deprivation decision affected Pham’s British and European citizenship and the alternative of regarding “European citizenship as a mere attribute of national citizenship” made Union citizenship wholly parasitic on national citizenship but contradicted the CJEU’s sweeping statements about treating European citizenship as “fundamental”.

On the three classic CCSU grounds of review, without a review of proportionality, acquiring or losing British citizenship dictated the acquisition or loss of European citizenship. Lord Sumption saw Pham’s case as a “particularly striking illustration” of the problems posed by the application of a different test for EU or human rights issues than for domestic issues. He reasoned that such a divergence of approach “has produced rather arbitrary distinctions between essentially similar issues” which depend on which source of law is invoked as a ground of challenge. Lord Sumption therefore found rather unsatisfactory to apply a proportionality test to the decision so far as it affects Pham’s EU citizenship but not his British citizenship. He also pounced on the opportunity to reiterate his thoughts in Lord Carlile [2014] 3 WLR 1404 (see here) and concluded at para 101 that “if anyone has rendered Mr Pham stateless, it is not the Home Secretary on 22 December 2011 but the Vietnamese government thereafter.”

Comment

In E. Fripp’s excellent The Law and Practice of Expulsion and Exclusion from the United Kingdom (2015), Lord Hope of Craighead KT explains that six decades ago the legal aspects of deportation, removal, exclusion and deprivation “were so simple that it would hardly have been contemplating devoting an entire book to them. How things have changed. The world has become larger and more volatile.” Apart from further exposing the tension between the UK courts and the CJEU in the field of citizenship, this judgment also demonstrates the more gruesome and constantly intensifying conflict between Islam and the West. Despite all the ills of the world and irrespective of politics, religion and ideology, it is quite sad that ungrateful people (B2, G1 and hundreds of others) who were granted asylum and given British passports by the UK should want to repay its generosity with terrorism.

Bitter facts such as these lay the foundation for section 66 of the Immigration Act 2014. As regards cases where the citizenship status results from the person’s naturalisation, section 66 inserts section 40(4A) into the 1981 Act and empowers the Home Secretary to deprive someone of British citizenship if she considers their conduct to be seriously prejudicial to the interests of the UK and there are reasonable grounds for believing 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.

By section 66(2), in exercising the section 40(4A) power the Home Secretary may take account of the manner in which a person conducted him or herself before the new deprivation provision entered into force on 28 July 2014. It will be interesting to see how the new power will be exercised and we can only wonder how long it will take for the first case to reach the Supreme Court? As Lord Hope sagaciously observes in his foreward to Fripp et al:

… No book devoted to this area of the law can expect to survive for very long without being kept up to date. So I hope that this will be the first edition of many, as it earns for itself a permanent and welcome place on our bookshelves.