Pham v Secretary of State for the Home Department

The statutory prohibition on depriving a person of citizenship where that would make the person stateless is assessed when the deprivation order is made. For this purpose, nationality under the operation of a state’s law is not necessarily determined solely from legislation. Governmental decisions or established practices may be relevant, even where they cannot be challenged effectively.

The state must, however, have adopted a position or practice concerning the individual or an identifiable class. A later refusal to recognise nationality does not retrospectively establish statelessness without a legal basis for that effect.

Deprivation under the British Nationality Act 1981 is a radical interference with a fundamental status. The court indicated that it therefore attracts strict, context-sensitive review, potentially employing proportionality analysis.

Pham v Secretary of State for the Home Department concerned an appellant born in Vietnam who later acquired British citizenship. The Secretary of State deprived him of that citizenship under section 40(2) of the British Nationality Act 1981, believing that he retained Vietnamese nationality. The Vietnamese Government subsequently declined to accept him as a Vietnamese citizen.

The Special Immigration Appeals Commission held that the deprivation order would make the appellant stateless and was prohibited by section 40(4). The Court of Appeal reversed that decision in [2013] EWCA Civ 616 and remitted the remaining grounds to the Commission.

The principal question before the Supreme Court was whether the appellant was considered a Vietnamese national under the operation of Vietnamese law when the deprivation order was made. Further questions concerned the possible application of European Union proportionality and procedural requirements to the loss of Union citizenship.

1. Disposition. The Supreme Court unanimously dismissed the appeal and confirmed the Court of Appeal’s order remitting the remaining grounds to the Special Immigration Appeals Commission.
2. Meaning of statelessness. Lord Carnwath, with whom Lord Neuberger, Lady Hale and Lord Wilson agreed, held that the inquiry under article 1(1) of the Convention relating to the Status of Stateless Persons 1954 was not necessarily confined to the written nationality law. Governmental practice could be considered even where it was not effectively challengeable in the courts. The state must nevertheless have adopted a decision, position or practice concerning the individual or an identifiable category. Familiar domestic conceptions of the rule of law were not controlling, but mere executive inaction was insufficient.
3. Application and timing. Vietnamese legislation did not provide for the appellant’s automatic loss of nationality when he became British. No decision or relevant practice depriving him of Vietnamese nationality had been established by the date of the Secretary of State’s order. The Vietnamese Government’s later refusal to recognise him could not retrospectively determine his status. Lord Mance and Lord Sumption reached the same conclusion in separate judgments. The Secretary of State’s order therefore did not render the appellant stateless for section 40(4) purposes.
4. European Union issues. The court declined to determine whether loss of British and consequent Union citizenship fell within European Union law. Those questions were outside the preliminary issue defined by the Commission and lacked the necessary factual findings. The Commission should consider proportionality and any disclosure issue on alternative domestic, Convention and European Union hypotheses so that any later appellate consideration is factually informed.
5. Domestic review. The majority indicated that citizenship is a fundamental status and deprivation under section 40(2) is a radical measure attracting correspondingly strict, context-sensitive review. Common-law reasonableness can involve weight and balance, and the structured considerations associated with proportionality may be valuable. Lord Mance also identified unresolved constitutional questions concerning the extent to which the European Communities Act 1972 conferred competence over national citizenship. Lord Reed separately considered it arguable, without deciding, that section 40(2) might contain an implied requirement that interference be no greater than objectively necessary.

• United Kingdom Supreme Court: In [2015] UKSC 19, unanimously dismissed the appeal and confirmed the remittal to the Special Immigration Appeals Commission.
• Court of Appeal: In [2013] EWCA Civ 616, reversed the Commission’s determination on statelessness and remitted the remaining grounds.
• Special Immigration Appeals Commission: On 29 June 2012, allowed the preliminary appeal because it considered that deprivation of British citizenship would make the appellant stateless.