After 5 years and more of litigation, the Supreme Court has confirmed that taking away British citizenship is impermissible if it results in statelessness.
This particular case involving Mr Al-Jedda goes back to 2008, when SIAC heard and dismissed his appeal against the Secretary of State’s decision to deprive him of British citizenship on conducive to public good grounds. Under section 40(2) of the British Nationality Act 1981, that power cannot be exercised if the Secretary of State, ‘is satisfied that the order would make a person stateless’.
The Court of Appeal ( EWCA Civ 358) ultimately found that, according to Iraqi law, Mr Al-Jedda automatically lost his Iraqi citizenship when he was granted British citizenship in 2000, and that he had not automatically regained his original nationality, either under the Transitional Administration Law promoted by the Occupying Powers, or under Iraq’s 2006 Nationality Law.
The Secretary of State nevertheless contended that, if it were open to the person concerned to apply for citizenship in another State, and if that application would necessarily be granted, then it would not be her order that made him stateless, but his own failure to apply for that other citizenship. The Supreme Court reviewed the relevant international law on nationality and statelessness, as well as the domestic implementation of the provisions on deprivation, and noted that the United Kingdom had recently adopted guidelines and revised Immigration Rules to deal with stateless persons seeking to remain.
The Court subjected the premise underlying the Secretary of State’s argument to rigorous scrutiny, finding it very close to unrealistic (§§23, 25). As the Court of Appeal had indulged the Secretary of State by allowing her to advance the premise, the Supreme Court was prepared to do the same. However, it categorically rejected the suggestion that Mr Al-Jedda’s putative statelessness was of his own making (§32). Though the ‘inquiry may prove complex’, the question finally was a simple one: Did the person concerned hold another nationality at the date of the order of deprivation? Mr Al-Jedda did not, and to allow an alternative interpretation, namely, the possibility of acquiring or reacquiring a nationality, ‘would mire the application of the subsection in deeper complexity’; it was ‘a gloss as substantial as it [was] unwarranted’ (§33).
The full judgment can be read here: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0129_Judgment.pdf
Guy Goodwin-Gill and Tom Hickman acted for Mr Al-Jedda, led by Richard Hermer QC; instructed by Public Interest Lawyers.