Pham v Secretary of State for the Home Department

The Supreme Court considered whether the Secretary of State was precluded by section 40(4) of the British Nationality Act 1981 from making an order under section 40(2) depriving the appellant of British citizenship because that order would render him stateless within the meaning of article 1(1) of the 1954 Convention relating to the Status of Stateless Persons. The court held that the relevant question is whether, as at the date of the deprivation order (22 December 2011), the appellant was not considered a national of Vietnam "under the operation of its law". The court concluded that there was no sufficient evidence that Vietnamese law or an identifiable Vietnamese state practice then treated him as a non-national, and that later statements or refusals by the Vietnamese government could not be treated as determining retrospectively his status on 22 December 2011. Accordingly the deprivation did not render him stateless and section 40(4) did not bar the Secretary of State’s action.

The court declined to decide contentious questions about the application of European Union law and proportionality in relation to deprivation of nationality, holding that those issues were not within the preliminary question before SIAC and were better considered, if necessary, by SIAC on remittal with full factual findings. The appeal was dismissed and the case remitted to SIAC for further consideration of the remaining grounds.

Background and parties: The appellant was born in Vietnam, acquired British citizenship in 1995 and was later suspected by the security services of involvement with terrorism. On 22 December 2011 the Secretary of State made an order depriving him of British citizenship under section 40(2) of the British Nationality Act 1981, and served notice of deportation to Vietnam. The Vietnamese government subsequently declined to accept him. The appellant appealed to SIAC asserting, inter alia, that deprivation would render him stateless because Vietnamese law did not permit dual nationality at the time he acquired British citizenship. The Secretary of State certified reliance on material contrary to the public interest and the appeal lay to SIAC. SIAC initially allowed the appeal on a preliminary issue of statelessness; the Court of Appeal reversed ( [2013] EWCA Civ 616 ) and remitted the matter to SIAC. The appellant then appealed to the Supreme Court.

Nature of the claim and issues: The appellant sought to establish that section 40(4) barred deprivation because he would be stateless, invoking article 1(1) of the 1954 Convention. The agreed issues before the Supreme Court included (i) whether determination that a person is or is not considered a national under article 1(1) should be decided by reference solely to the text of foreign nationality legislation or whether state practice and executive decisions (even if not subject to effective judicial review) fall within the "operation of its law"; and (ii)-(iii) whether deprivation of British citizenship which also removes European Union citizenship engages EU law and a proportionality requirement.

Court’s reasoning: The court analysed Vietnamese nationality law and expert evidence. Although the statutory texts since 1988 did not provide for automatic loss of Vietnamese nationality upon acquisition of foreign nationality, SIAC had found that the Vietnamese executive had in practice declined to acknowledge the appellant as a Vietnamese national after being provided with his particulars. The Supreme Court accepted the relevance of UNHCR guidance that "law" in article 1(1) can be read broadly to include practice, ministerial decrees and implementation in practice. However, the court found insufficient evidence that the Vietnamese government had adopted an identifiable decision or practice which, as at 22 December 2011, could be treated as operating as Vietnamese law so as to render the appellant not a national at that date. SIAC was therefore wrong to treat subsequent Vietnamese statements as determining status retrospectively. On EU law, the court declined to decide whether EU law and the principle of proportionality applied: that question was outside the narrow preliminary issue before SIAC and raised difficult jurisdictional and factual questions which SIAC should first address on remittal.

Procedural posture: Appeal from the Court of Appeal which had remitted the case to SIAC; appeal dismissed and case sent back to SIAC for further consideration of remaining grounds.

Appeal dismissed. The Supreme Court held that the Secretary of State was not precluded by section 40(4) of the British Nationality Act 1981 from depriving the appellant of British citizenship because there was no sufficient evidence that, as at 22 December 2011, he was not considered by Vietnam to be a national "under the operation of its law". The court declined to resolve EU law/proportionality issues and remitted the remaining matters to SIAC for further factual and legal consideration.

SIAC allowed the appellant's preliminary appeal on statelessness (29 June 2012). The Court of Appeal reversed and remitted the case to SIAC ([2013] EWCA Civ 616). The appellant appealed to the Supreme Court ([2015] UKSC 19), which dismissed the appeal and remitted the remaining issues to SIAC.