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Deprivation of citizenship justified by treasonous conduct finds Court of Appeal


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A British citizen can be deprived of his citizenship if he shows disloyalty to the state, the Court of Appeal has found in the case of Pham v Secretary of State for the Home Department [2018] EWCA Civ 2064.

The case is interesting, thought-provoking and concerning in equal measure. Taking away a person’s citizenship on discretionary grounds is a hugely important step. It says something about what it means to be a citizen in the first place. Given the significance of this issue, it is a shame to see judges failing to draw on readily available material on these questions of citizenship, identity and belonging in twenty first century Britain.


Pham involves a man thought probably to be a Vietnamese citizen who arrived in the UK aged 6 in 1989 and later naturalised as British in 1995. He converted to Islam and travelled to Yemen where he later admitted to, was convicted of and sentenced for (after being extradited to the United States) providing material and resources to Al Qaeda, conspiring to receive military-type training from a terrorist organisation and knowingly carrying and using a Kalashnikov assault rifle in furtherance of crimes of violence.

Without doubt, Mr Pham was a direct participant in terrorism abroad.

The Pham case has already been up the Supreme Court and back (Pham v Secretary of State for the Home Department [2015] UKSC 19). In the previous proceedings the issue was whether he would be stateless if deprived of his British citizenship. The Supreme Court held that he would not be because he was probably Vietnamese as a matter of Vietnamese law, even though the Vietnamese themselves denied this because they did not want him sent to Vietnam thank you very much.

In the current proceedings the issue was whether the decision to deprive him of his British citizenship was justified. The statutory test in the British Nationality Act 1981 is whether the Home Secretary considers it “conducive to the public good”.

Duh, you might think.

The Special Immigration Appeals Commission and the Court of Appeal have had to go into slightly more detail than that, though. While the open judicial discussion of treason and loyalty to the state is sobering, the focus on genuine issues of what it means to be a citizen is to be welcomed when contrasted with recent tribunal cases involving serious criminality. Those cases have treated citizenship as a mere form of immigration status, applying the same approach to the exile of citizens as to the deportation of migrants.

Citizenship is the right to have rights

The Court of Appeal’s recognition of the importance of nationality and citizenship is to be welcomed, despite it being slightly half hearted. Lady Justice Arden, giving the leading judgment, said:

The right to nationality is an important and weighty right. It is properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection and so on.

The nonchalant “and so on” is arguably doing a lot of work here. Voting? Standing in elections? Access to services? Jury service? Liability to be tried for treason? Belonging? But at least she didn’t say “etc” or “blah blah blah” and some awareness is shown.

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There is arguably some confusion here between nationality and citizenship. Citizenship can be said to concern rights and the relationship between the individual and the state. Nationality is arguably more to do with the international identity of the individual and their place in the system of nation states. Confusion is inevitable, though, as the two concepts overlap and are generally used interchangeably in British nationality law and discourse. The main status bestowed by the British Nationality Act 1981 is British citizenship, after all.

Back in 2008, Lord Goldsmith published a review into British citizenship called Citizenship: Our Common Bond. It is essential reading for those interested in this topic. He recognises issues around the fact that what might normally be considered the rights of citizens, such as the right to vote and to welfare support, are not in fact really tied to modern British citizenship. His proposed solutions — such as making long term residence without citizenship unattractive — are debatable but the report is thoughtful and well researched.

The Goldsmith review really should be read thoroughly by any judges involved in taking away a person’s British citizenship. Otherwise how does the judge know what he or she is actually doing?

Citizenship requires loyalty

The submission of the government in Pham was that citizenship carries an obligation of loyalty to the state. Where a person actively rejects that obligation, he should cease to be a citizen:

by his actions the appellant has repudiated his obligation of loyalty to the United Kingdom and it is right that, given the facts that he has admitted, he should no longer remain a British citizen

The judge below, Mitting J, agreed:

British citizenship is an important right, but it carries with it obligations, fundamentally, of loyalty. They have existed for centuries. The treason legislation would, if applied to the appellant’s acts, have given rise to a viable case against him and in former times he would have faced far more severe consequences than the deprivation of his British citizenship.

Arden LJ also agreed:

In the present case, the appellant has over a significant period of time fundamentally and seriously broken the obligations which apply to him as a citizen and put at risk the lives of others whom the Crown is bound to protect. I do not consider that it would be sensibly argued that this is not a situation in which the state is justified in seeking to be relieved of any further obligation to protect the appellant.

But what is the origin of the supposed duty of loyalty? The link between citizenship and loyalty may seem to be a matter of common sense or political philosophy, but neither is the basis on which the judgment in Pham is made, at least overtly.

And isn’t the duty of loyalty perhaps better policed by treason laws than citizenship deprivation laws? Treason involves real punishment. Deprivation merely removes rights and, as Voltaire observed, ends up casting into our neighbour’s field the stones which incommode us in our own. Why should Vietnam have to host Mr Pham when it was in the United Kingdom that he was radicalised?

Loyalty in British nationality law

The government argued in Pham that the oath of allegiance was the basis of the citizen’s obligation of loyalty (paragraph 43). The oath and pledge reads thus:

“I, {name}, swear by Almighty God that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law … I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen.”

With respect, this submission cannot be right and indeed the Court makes no comment on it. Those born British citizens or registered as British citizens as children do not swear the oath of allegiance. Mr Pham himself did not swear the oath as he was a child when he become British in 1995, aged 12.

Instead Arden LJ addresses the origins of the obligation rather briefly, finding:

it derives from feudal law where the obligation of the liege was to protect, and the obligation of the subject was to be faithful.

With respect, long dead concepts of feudal law are not necessarily a sound basis for any current obligation of loyalty by citizens. Acquisition and loss of nationality and citizenship has been governed by statute since 1914. But no statute has ever set out either the rights or the obligations of British citizens.

In the absence of anything explicit, there are three ways in which an obligation of loyalty might possibly be implied from the statute:

  1. Deriving subject status from allegiance
  2. The oath of allegiance
  3. The power of deprivation of citizenship being based on a test of loyalty.

None of these continue to apply today, all having been deliberately or accidentally abolished over the years.

Subjects and allegiance

Common law defined “British subjects” by reference to their allegiance to the Crown. If a person was born in the Crown’s “dominions and allegiance” then the person was born a British subject. Allegiance and subjecthood were basically the same thing.

The British Nationality and Status of Aliens Act 1914 explicitly preserved the link, at section 1(1)(a) referring to “Any person born within His Majesty’s dominions and allegiance…”

The British Nationality Act 1948 created a new citizenship status and dropped any explicit reference to allegiance. However, the status of “British subject” was preserved as a sort of umbrella status which continued to exist for citizens and the common law duty of allegiance could arguably be read into it.

British subjects ceased to exist for all intents and purposes with the British Nationality Act 1981, and so there was no longer any statutory link to the old common law duty of allegiance.

Oath of allegiance

The oath of allegiance has existed in statute since the Naturalization Act 1844, when naturalisation was first formalised in law. As we have already seen, though, the oath is only sworn by adults naturalising or registering as British. Mr Pham himself did not have to swear it when he became British because he was a child at the time.

The vast majority of British citizens will never swear the oath. If you do not swear it, it is hard to argue that you are bound by it.

Deprivation and allegiance

Deprivation of citizenship did not exist in common law and the concept was first introduced by the 1914 Act. Deprivation on the basis of disloyalty or disaffection was first introduced by the British Nationality and Status of Aliens Act 1918, but only for naturalised citizens.

For those born British, the sanction for disloyalty lay in the treason laws.

The British Nationality Act 1948 maintained that approach: deprivation of citizenship for disloyalty or disaffection was possible but only for naturalised citizens. This was continued by the British Nationality Act 1981.

Things started to change in 2002, however. Protection against deprivation for British citizens born British was removed. The test for deprivation was re-written from one focussed on state of mind and loyalty to the state to a more “objective” standard of doing “anything seriously prejudicial to the vital interests of the United Kingdom.” The mens rea previously normally required for deprivation of citizenship was dropped.

Arguably, the last vestiges of the link were accidentally abolished in 2006 when the test for deprivation of citizenship was downgraded from requiring proof of at least quasi-treasonous activity to merely requiring that the Home Secretary considered deprivation to be “conducive to the public good.” This is the same formulation of words that applies to the deportation of migrants, although arguably the same words should be interpreted very differently in the two different contexts.

At that point it really becomes very hard to read into the deprivation power an implied obligation of loyalty.

Modern treason

Where nationality is derived from or at least linked to allegiance, it seems reasonable to imply into that status an obligation of loyalty by its holder. Historically, the obligation was not policed through deprivation of citizenship, though, but rather through prosecutions for treason. The concept of deprivation of citizenship simply did not exist in common law.

To put it another way, disloyalty would not lead to casting out of the territory but to punishment within the territory.

The offence of treason was codified in the Treason Act 1352. This remains law today, although punishment is no longer death. There are several ways in which treason can be committed, including “being adherent to the King’s enemies”, and “levying war against the sovereign in his realm”. To commit the offence, though, it is necessary for the person to owe allegiance to the Crown.

Do British citizens who do not swear an oath of allegiance and whose status is no longer based on allegiance really still owe that allegiance to the Crown?

The last prosecution for treason was in 1981, although Lord Goldsmith tells us in his review that was under the Treason Act 1842 and the conviction was for discharging a gun near the sovereign. Allegiance is not a component of that particular treason offence.

One of the recommendations in Lord Goldsmith’s review of the mess of current laws governing the rights and obligations of citizenship is that the treason laws should be updated. The current law is expressed in an archaic fashion and has not been updated to reflect the shift from subjects to citizens over the course of the twentieth century. There are some crimes against the state and its people which should be marked out for the special, elevated condemnation of a conviction for treason. And a well drafted law of treason might provide an explicit modern foundation for a citizen’s duty of loyalty to the British state and its people.

The Law Commission reviewed the treason laws back in 1977 (you can read the report here) and recommended reform, and just this summer there have been cross party calls for reform.

None of this is to say that Mr Pham should not have been deprived of his British citizenship. On the face of it, the statutory test is a low one and was clearly met on the facts that Mr Pham admitted. But a Court of Appeal level authority in which it is held that British citizens owe a duty of loyalty to the state on the basis of feudal law is neither a welcome nor a progressive development in nationality law.

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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.