Pham v The Secretary of State for the Home Department

Under section 40(2) of the British Nationality Act 1981, the Secretary of State’s opinion as to what is conducive to the public good must be current. The provision does not make a present risk of harm to national security a condition precedent to deprivation of citizenship.

Serious past conduct which fundamentally repudiates the obligations of loyalty inherent in citizenship may justify deprivation, subject to an individualised assessment. Even assuming that EU proportionality applied, deprivation was not disproportionate where the only foreseeable practical disadvantage was loss of consular protection and there was no evidence that domestic remedies in the country of imprisonment were inadequate.

SIAC may consider incontrovertible evidence when striking out an appeal under Rule 11B.

The appellant, a British citizen who had been born a Vietnamese national, was deprived of British citizenship because the Secretary of State assessed him to have been involved in terrorism-related activities and linked to Islamist extremists. He had travelled to Yemen, received terrorist training and later admitted conduct connected with AQAP. Following extradition, he received a 40-year sentence in the United States.

In an earlier stage of the same litigation, the Supreme Court held that deprivation did not make him de jure stateless and remitted the appeal. SIAC, constituted by Mitting J, struck out the remitted appeal as having no prospect of success: [2012] UKSIAC 114/2012.

The central questions were whether historic repudiation of the obligations of citizenship could justify deprivation without a current national-security risk, whether proportionality had been addressed, and whether SIAC could consider evidence on a Rule 11B strike-out application.

1. Appeal dismissed. Section 40(2) of the British Nationality Act 1981 required a current opinion by the Secretary of State that deprivation was conducive to the public good. It did not require a current risk of harm as a separate pre-condition. The opinion could properly rest on the conclusion that the state should not be required to continue protecting a citizen who had fundamentally repudiated the obligations of loyalty by serious terrorist conduct.

2. The reciprocal rights and duties of citizenship supported that construction. The Court drew support from Rottman v Friestadt Bayern, C-135/08, and from the public-policy reasoning in R v Bouchereau, Case 30/77. Past conduct may, in an individual case, itself justify the relevant present public-interest conclusion. The Court did not need to decide whether SIAC assessed the case as at the date of the deprivation order or the hearing.

3. The Court assumed, without deciding, that EU proportionality governed the decision. On that assumption, deprivation was plainly proportionate. The appellant’s conduct had gravely breached the obligations of citizenship. His only foreseeable practical disadvantage during imprisonment was loss of consular protection. There was no evidence that the United States legal system could not provide any remedy to which he was entitled. SIAC had in any event carried out the necessary balancing exercise.

4. Rule 11B of the Special Immigration Appeals Commission (Procedure) Rules 2003 was not confined to defects apparent on the notice of appeal. Its reference to the Secretary of State’s reply permitted SIAC, in an appropriate case, to consider incontrovertible evidence at the preliminary stage. There was therefore no procedural objection to the strike-out.

• Supreme Court: In an earlier stage of the same litigation, the Supreme Court held that the appellant was not de jure stateless for section 40 purposes and remitted the appeal to SIAC: [2015] UKSC 19.
• Court of Appeal (Civil Division): Dismissed the appeal from SIAC and upheld the strike-out: [2018] EWCA Civ 2064.
• Special Immigration Appeals Commission: Mitting J struck out the remitted appeal as disclosing no prospect of success: [2012] UKSIAC 114/2012.