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Al-Jedda, “statelessness” and the meaning of words
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The judgment in Secretary of State for the Home Department v Al-Jedda  UKSC 62 was handed down this month. It is the latest in a series of higher court decisions on the issue of deprivation of citizenship and the first to reach the Supreme Court. Many immigration practitioners are concerned about the draconian nature of the power to deprive and its increased use as a counter-terror measure in recent years.
Mr Al-Jedda is no stranger to the English and European courts. In R (Al-Jedda) v Secretary of State for Defence  UKHL 58, the House of Lords rejected his claim in that his internment in Iraq had violated his rights under Article 5 of the European Convention on Human Rights, a decision with which the Grand Chamber of the Strasbourg Court disagreed in Al-Jedda v United Kingdom  ECHR 1092.
The present proceedings arose out of the Secretary of State’s order of December 2007 purporting to deprive Mr Al-Jedda of his British citizenship. Section 40(4) of the British Nationality Act 1981 prohibits the Secretary of State making a deprivation order “if he is satisfied that the order would make a person stateless.” The Secretary of State contended that it was Mr Al-Jedda’s failure to apply for restoration of his Iraqi nationality and not her order which would make him stateless. The Supreme Court unanimously rejected this contention.
The Secretary of State’s appeal was based on the premise that at the date of the deprivation order Mr Al-Jedda could have applied for and obtained the immediate restoration of his Iraqi nationality. Lord Wilson, giving the judgment of the court, suggested the premise was unrealistic because under Iraqi law Mr Al-Jedda would have had to return to Iraq legally and stay there for at least a year and even then the Iraqi Minister retained a discretion to refuse his application.
Lord Wilson set out the international and domestic legal background. He recognised the “evil of statelessness” and the importance of nationality (“the right to have rights” as it was described by US Chief Justice Warren). The Supreme Court’s judgment, though, turned on the simple meaning of section 40(4) of the 1981 Act. The court held that the inquiry is a “straightforward exercise”: it is whether the person holds another nationality at the date of the order. For the Secretary of State to assert that the person could re-acquire another nationality would “mire” subsection (4) in “deeper complexity”.
The court rejected the Secretary of State’s argument that the word “satisfied” enables her or, on appeal, the Tribunal to look to the ability of the person to secure restoration of his previous nationality. The “nature of the fact” of statelessness remains the same regardless of whether the Secretary of State is satisfied of it. This is good news for those, including the Joint Committee on Human Rights, for whom the potentially subjective nature of the test was a cause of concern. The Supreme Court has rejected the Secretary of State’s Humpty Dumpty method of construction: “statelessness” does not mean just what the Secretary of State chooses it to mean.
Home Office guidance states that an individual’s nationality “is neither a historic nor a predictive exercise.” Lord Wilson observed that the Secretary of State’s own guidance “eloquently exposes the fallacy behind her appeal.”
The Supreme Court’s decision follows two recent Court of Appeal decisions on deprivation of citizenship. In July in L1 v Secretary of State for the Home Department  EWCA Civ 906, Laws LJ held that when the Secretary of State had deliberately delayed the deprivation decision until the Appellant had left the country, fairness required SIAC to hold that his time for appealing should be extended by reason of “special circumstances”. L1 followed the hard decision in B2 v Secretary of State for the Home Department,  EWCA Civ 616 in which Jackson LJ held that if the Government of the foreign state (in that case Vietnam) chooses to act contrary to its own law and not recognise one of its nationals, the individual may be de facto but is not de jure stateless and so can be deprived on his British citizenship under section 40(4). The Court of Appeal said that if this outcome was “unsatisfactory” the remedy was to expand the definition of stateless persons in the 1954 Convention: it was not for the British courts to subvert the rule of law.
After the hearing in the Supreme Court, the Secretary of State claimed that in 2008 Mr Al-Jedda had successfully applied for an Iraqi passport. This raises the prospect that the Secretary of State will now make a further deprivation order on the basis that, in light of the passport, the order would not make him stateless. Mr Al-Jedda’s lengthy legal battles may not be over.
Written with Grace Capel, a pupil at Garden Court Chambers.