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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Secretary of State for the Home Department v Al -Jedda [2013] UKSC 62 (9 October 2013) URL: https://www.bailii.org/uk/cases/UKSC/2013/62.html Cite as: [2014] AC 253, [2014] Imm AR 229, [2013] 3 WLR 1006, [2013] WLR(D) 371, [2014] 1 AC 253, [2014] HRLR 2, [2013] UKSC 62, [2014] 1 All ER 356, [2014] INLR 131 |
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Michaelmas Term
[2013]
UKSC 62
On appeal from: [2012] EWCA Civ 358
JUDGMENT
Secretary of State for the Home Department (Appellant) vAl-Jedda
(Respondent)
Before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Wilson
Lord Carnwath
JUDGMENT GIVEN ON
9 October
2013
Heard on 27 June2013
Appellant Jonathan Swift QC Rodney Dixon (Instructed by Treasury Solicitors) |
Respondent Richard Hermer QC Guy Goodwin-Gill Tom Hickman (Instructed by Public Interest Lawyers) |
|
Intervener James A. Goldston Laura Bingham Simon Cox (Instructed by Open Society Justice Initiative) |
LORD WILSON (with whom Lord Neuberger, Lady Hale, Lord Mance and Lord Carnwath agree)
A: INTRODUCTION
"40. Deprivation of citizenship
(1) ...
(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of –
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.
(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying –
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c 68).
(6) ..."
So the issue is whether the Secretary of State's order in respect of the respondent was invalidated by subsection (4) above.
B: HISTORY
"120. I am prepared to assume that if an application were made for the restoration of the appellant's Iraqi nationality it would be bound to succeed, though the point is by no means free from doubt. I also put to one side the objections raised by Mr Hermer as to the practicality of the appellant making an application at all: he submitted that an application would have to be made by the appellant in person, and for that purpose the appellant would have to enter Iraq legally and would therefore require a visa, which would lie in the discretion of the State and could be refused on national security grounds.
121. I would reject the Secretary of State's argument for the straightforward reason that section 40(4) requires the Secretary of State (and, on appeal, the court) to consider the effect of the order made under section 40(2): would the order make the person stateless? If Iraqi nationality was not restored to the appellant automatically under the Iraqi legislation considered above, he was not an Iraqi national at the time of the order: his only nationality at that time was British nationality. The effect of the order would therefore be to make him stateless. That would be the effect of the order irrespective of whether he could previously have acquired another nationality had he chosen to do so, or whether he could do so in the future."
It is against this determination that the appeal is brought.
C: STATELESSNESS
"(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."
The European Convention on Human Rights 1950 does not identify a right to a nationality but the European Court of Human Rights recognises that the arbitrary denial of citizenship may violate the right to respect for private life under Article 8 of the Convention (Karassev v Finland, Application No 31414/96, 12 January 1999). In his dissenting judgment in Perez v Brownell, 356 US 44, 64 (1958), Warren CJ described a right to nationality as "man's basic right for it is nothing less than the right to have rights". Although the international growth of human rights during the past fifty years has to some extent succeeded in establishing that a person's right to have rights stems, instead, from his existence as a human being, worldwide legal disabilities with terrible practical consequences still flow from lack of nationality: see the illuminating article by Weissbrodt and Collins entitled "The Human Rights of Stateless Persons", Human Rights Quarterly, 28 (2006) 245.
- Statelessness occurs for a variety of reasons, including discrimination against minority groups in nationality legislation, failure to include all residents in the body of citizens when a state becomes independent (state succession) and conflicts of laws between states. The dissolution of the Soviet Union and the Yugoslav Federation in the early 1990's, for example, caused internal and external migration that is reported to have left hundreds of thousands stateless throughout Eastern Europe and Central Asia. In some countries, citizenship is lost automatically after prolonged residence in another country. The absence of proof of birth, origins or legal identity can also increase the risk of statelessness.
- Statelessness has been estimated to affect up to 12 million people worldwide. Possession of nationality is essential for full participation in society and a prerequisite for the enjoyment of the full range of human rights. Those who are stateless may, for example, be denied the right to own land or exercise the right to vote. They are often unable to obtain identity documents; they may be detained because they are stateless; and they can be denied access to education and health services or blocked from obtaining employment."
D: PREMISE
"117. In my judgment, the relevant factors come down strongly in favour of the view that the Iraqi courts would find the appellant's situation to be covered by Article 10(3), not by Article 10(1), and that the restoration of his Iraqi nationality depends on his meeting the conditions of Article 10(3), including the making of an application for its restoration."
Article 10(3) provides:
"An Iraqi who renounces his Iraqi nationality may regain it, if he legally returns to Iraq and stays there for at least one year. The Minister may, on expiry thereof, consider him to have acquired Iraqi nationality from the date of his return if he submits an application to regain Iraqi nationality before the end of the aforementioned period."
It is clear, therefore, that paragraph (3) of the article would have required the respondent (a) to return to Iraq legally, (b) to stay there for at least one year, as well as (c) to apply in the course of the year for restoration of his Iraqi nationality. In the event that the respondent fulfilled these requirements, the Minister "may" restore Iraqi nationality to him, with retrospective effect to the date of his return; and, although the Court of Appeal made no finding in this regard, Mr Swift has not taken issue with the contention of Mr Hermer QC, on behalf of the respondent, that in the end all the experts who gave evidence at the second hearing before the Commission were agreed that, as one would expect, the word "may" connotes that the Minister nevertheless retains a discretion to refuse the application.
(a) from an early stage of the protracted proceedings referable to his appeal against the Secretary of State's order, he had averred that, in order to travel from Iraq to Turkey on 3 February 2008, he had used a "fake" Iraqi passport: see, for example, his witness statement dated 10 October 2008 which was placed before the Commission;
(b) in 2008 he had also filed a report by a Turkish lawyer who stated that she had reviewed a scanned copy of what purported to be an Iraqi passport referable to him issued in Baghdad on 28 January 2008 and stamped with a Turkish entry visa dated 3 February 2008;
(c) in the course of cross-examination of him at a hearing before the Commission in January 2009 Mr Swift had never sought to challenge his assertion that the Iraqi passport by which he had travelled to Turkey was fake;
(d) in January 2008, in Kirkuk, he had in fact acquired two fake passports, one in his name and one in another name, on the black market by payment of about US$750 which he borrowed from his family;
(e) he had provided his payee with details about himself and photographs of himself but not with a certificate of Iraqi nationality because he did not have one;
(f) the fake passport in his own name, which the payee provided to him, was indeed numbered G1739575 and it stated that it had been issued on 28 January 2008; this was the passport which he had elected to use for his travel to Turkey on 3 February 2008;
(g) he is unaware of the documents which his payee may have completed or caused to be completed in the course of procuring the passports;
(h) he, the respondent, never completed the application form a copy of which the Secretary of State has produced to the court and he has never previously seen it;
(i) the passport G1739575 is therefore fake, by which he appears to mean that it was forged, or, more probably, that it was fraudulently obtained; and
(j) since 2000 he has never held Iraqi nationality and in the above circumstances the passport is no evidence to the contrary.
E: ARGUMENT
"A declaration made by a person in pursuance of this section shall not be registered unless the Secretary of State is satisfied that the person who made it will after the registration have or acquire some citizenship or nationality other than British citizenship; and if that person does not have any such citizenship or nationality on the date of registration and does not acquire some such citizenship or nationality within six months from that date, he shall be, and be deemed to have remained, a British citizen notwithstanding the registration."
For present purposes the significance of the subsection is that, as an addition to the person who will "have" another nationality on the date of registration, Parliament, reflecting the terms of the 1961 Convention, there refers to the person who will "acquire" another nationality. Parliament would have been capable of making an analogous addition to section 40(4). After the words "would make a person stateless", it could have added the words "in circumstances in which he has no right immediately to acquire the nationality of another state". But it did not do so; and the Secretary of State therefore invites the court to place a gloss, as substantial as it is unwarranted, upon the words of the subsection.
"3.4 ... An individual's nationality is to be assessed as at the time of determination of eligibility under the 1954 Convention. It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making an Article 1(1) determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a national for the purposes of Article 1(1) of the 1954 Convention. Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition."
The Secretary of State's own guidance eloquently exposes the fallacy behind her appeal.