B2 v Secretary of State for the Home Department

For the prohibition in section 40(4) of the British Nationality Act 1981, a person is stateless only if they are de jure stateless. The Secretary of State’s own opinion is not decisive. The court must determine whether deprivation will in fact leave the person without a nationality under the operation of any state’s law.

Where the facts and foreign law establish that the person retains a foreign nationality, an executive refusal by that foreign state to recognise or protect that person, contrary to its own law, creates de facto rather than de jure statelessness. It does not engage section 40(4).

B2 was born in Vietnam and acquired British citizenship with his family in 1995. In December 2011 the Secretary of State made an order under section 40(2) of the British Nationality Act 1981 depriving him of British citizenship on public-good grounds connected with alleged terrorism-related activities.

B2 appealed to the Special Immigration Appeals Commission (SIAC). SIAC allowed the appeal, holding that deprivation would render him stateless. The Secretary of State appealed. The central issue was whether, under Vietnamese nationality law and the subsequent stance of the Vietnamese Government, B2 became de jure stateless or merely de facto stateless when deprived of British citizenship.

1. Appeal allowed. SIAC had erred in treating the anticipated consequences of the deprivation order as creating statelessness within section 40(4) of the British Nationality Act 1981. B2’s underlying appeal was remitted to SIAC.

2. Section 40(4) must be construed consistently with article 8.1 of the Convention on the Reduction of Statelessness of 1961. The words “if he is satisfied that” do not make the Secretary of State’s opinion the legal test. The Secretary of State may not make a deprivation order if its actual consequence is to make the individual de jure stateless.

3. “Stateless” in section 40(4) means de jure, not de facto, statelessness. Applying article 1.1 of the Convention relating to the Status of Stateless Persons 1954, the question is whether the person has a nationality under the operation of the relevant state’s law, rather than whether that nationality is effective in practice.

4. B2 acquired Vietnamese nationality at birth and retained it when he acquired British citizenship. Neither the Vietnamese nationality legislation in force nor any lawful procedure for relinquishment, deprivation or annulment had removed it by 22 December 2011.

5. The Vietnamese Government’s deliberate refusal to accept B2 as a national, without following its own statutory procedures, could render him unprotected in fact. It did not alter the legal position under Vietnamese law. B2 was therefore de facto stateless, but not de jure stateless, and section 40(4) did not prevent the order.

• Court of Appeal (Civil Division): in [2013] EWCA Civ 616, allowed the Secretary of State’s appeal and remitted B2’s underlying appeal to SIAC.
• Special Immigration Appeals Commission: on 29 June 2012, allowed B2’s appeal on the basis that deprivation of British citizenship would render him stateless.