Al -Jedda v Secretary of State for the Home Department (Rev 2)

Under section 40(4) of the British Nationality Act 1981, statelessness is assessed by asking whether the deprivation order would make the person stateless when made. A possible future application for another nationality does not alter that question.

An appeal from SIAC on foreign law lies only on a point of law. However, failure to address a material legal issue squarely raised may constitute such an error. The Iraqi legislation required an application before nationality lost through acquisition of a foreign nationality could be restored. It did not restore nationality automatically. The deprivation order therefore made the appellant stateless and had to be quashed.

The appellant had acquired British nationality in 2000 after previously holding Iraqi nationality. Under the former Iraqi nationality law, he lost his Iraqi nationality when he acquired British nationality. In December 2007 the Secretary of State made an order under section 40(2) of the British Nationality Act 1981 depriving him of British nationality.

SIAC dismissed the section 40(2) grounds on 7 April 2009. Its earlier preliminary decision on statelessness, dated 23 May 2008, was quashed on procedural grounds. On a fresh hearing, SIAC decided on 26 November 2010 that the appellant was not stateless because his Iraqi nationality had been automatically restored under the TAL or the 2006 Nationality Law. The appeal concerned whether SIAC had erred in interpreting Iraqi law and whether the appellant’s ability to apply for restoration prevented the order from making him stateless.

Richards LJ gave the leading judgment. Stanley Burnton and Gross LJJ agreed.

1. Appellate review. Under section 7(1) of the Special Immigration Appeals Commission Act 1997, an appeal from SIAC lies only on a point of law. Findings about the meaning of foreign legislation are findings of fact of a distinctive character, and the appellate court cannot intervene merely because it would have reached a different conclusion: Delmia Dairy Industries Ltd v National Bank of Pakistan [1978] 2 Lloyds Rep 223. Nevertheless, SIAC had to address a material international-law argument squarely raised before it. The failure to do so was a material error of law: MA (Somalia) v Secretary of State for the Home Department [2011] UKSC 49.
2. The TAL. The TAL was intended to operate as an effective citizenship law during the transitional period, even without further implementing legislation. However, the second sentence of Article 11(C) was to be interpreted restrictively. In light of the international law of occupation, the TAL’s transitional character, the practical consequences of automatic citizenship, and the later Iraqi constitutional and statutory provisions, restoration of Iraqi nationality required an application. Article 11(C) did not restore nationality automatically.
3. The 2006 Nationality Law. SIAC had departed without adequate justification from the expert evidence. Article 10.3 was the better fit for a person who had voluntarily acquired foreign nationality and thereby lost Iraqi nationality. It required an application and compliance with its conditions. Article 10.1 did not operate retrospectively to restore nationality automatically. It was unnecessary to decide whether a compliant application had to succeed.
4. Statelessness and disposition. Section 40(4) required consideration of the effect of the deprivation order itself. The appellant was not considered an Iraqi national under Iraqi law when the order was made, although he could have applied for restoration. Applying the approach in Abu Hamza v Secretary of State for the Home Department, he was stateless on the relevant date. The appeal was allowed and the Secretary of State’s order was quashed.

• Court of Appeal (Civil Division), [2012] EWCA Civ 358: allowed the appeal and quashed the Secretary of State’s order depriving the appellant of British nationality.
• Special Immigration Appeals Commission, 26 November 2010, Appeal No. SC/66/2008: held that the appellant was not stateless because Iraqi nationality had been automatically restored.
• Special Immigration Appeals Commission, 7 April 2009: dismissed the grounds challenging the public-good basis for deprivation under section 40(2) of the British Nationality Act 1981.
• Earlier SIAC determination, 23 May 2008: reached a preliminary decision on statelessness, which was subsequently quashed by the Court of Appeal on procedural grounds.