B2 v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Lloyd Jones,Lord Justice Floyd |
| Judgment Date | 24 May 2013 |
| Neutral Citation | [2013] EWCA Civ 616 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2012/1974 |
| Date | 24 May 2013 |
[2013] EWCA Civ 616
Lord Justice Jackson
Lord Justice Lloyd Jones
and
Lord Justice Floyd
Case No: T2/2012/1974
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
MR JUSTICE MITTING
SC1142012
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Southey QC and Mr Alex Burrett (instructed by JD Spicer Zeb) for the Respondent
Mr Robin Tam QC and Ms Melanie Cumberland (instructed by Treasury Solicitors) for the Appellant
Mr Angus McCullough QC and Ms Shaheen Rahman appeared as Special Advocates
This judgment is in seven parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. Statelessness,
Part 5. The Nationality Laws of Vietnam,
Part 6. The status of B2 under Vietnamese Nationality Laws,
Part 7. Decision.
This is an appeal from the Special Immigration Appeals Commission in which the issue is whether the Secretary of State for the Home Department was entitled to deprive a British Citizen originating from Vietnam of British nationality following his alleged involvement in terrorism related activities. The Secretary of State alleges that she was so entitled. The respondent contends that the Secretary of State was not so entitled, because the effect would be to render him stateless.
In this judgment I shall refer to the Special Immigration Appeals Commission as "SIAC". I shall refer to the United Nations High Commissioner for Refugees as "UNHCR".
The respondent to this appeal, who was the appellant before SIAC, is a man referred to in the pleadings as "B2". I shall so refer to him.
I shall refer to the British Nationality Act 1981 as "the 1981 Act". Section 40 of the 1981 Act provides:
"(1) In this section a reference to a person's "citizenship status" is a reference to his status as —
(a) a British citizen,
(b) a British overseas territories citizen,
(c) a British Overseas citizen,
(d) a British National (Overseas),
(e) a British protected person, or
(f) a British subject.
(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
….
(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying —
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68)."
For reasons which will be developed later in this judgment, the word "stateless" is used in two different senses. One is "de jure" stateless and the other is "de facto" stateless. There is no dispute that in the context of section 40 (4) what is meant is de jure stateless.
I shall set out the relevant provisions of Vietnamese law in Part 5 below, using the English translations in the bundle with one exception. That one exception concerns article 2 of Decree No. 37/HDTB. B2's expert witness says that the verb in the first sentence should be translated as "relinquishing", not "losing". When I come to that enactment, I shall adopt the translation preferred by B2's expert.
After these introductory remarks, I must now turn to the facts.
B2 was born in Mongai, Vietnam on 9 th February 1983. When he was a baby his parents took him to Hong Kong, where they lived for some years. In 1989 the family arrived in the UK and claimed asylum. They were granted indefinite leave to remain in this country. In 1995 they acquired British citizenship. The only document which B2 has evidencing his connection with Vietnam is his birth certificate. It appears that B2 and his parents have never held Vietnamese passports. Nor have they ever taken any steps to renounce their Vietnamese nationality.
B2 was aged 12 when he acquired British nationality. He was educated in this country and went on to attend a college of design and communications in Kent. At the age of 21 B2 converted to Islam. It is alleged that thereafter he became an Islamist extremist. In December 2010 B2 travelled to Yemen, where he remained until 25 th July 2011. It is the assessment of the Security Service that while in Yemen B2 received terrorist training from Al Qaida in the Arabian Peninsula. It is also the assessment of the Security Service that B2, if at liberty, would pose an active threat to the safety and security of the United Kingdom and its inhabitants.
On the 20 th December 2011 the Secretary of State decided to make an order pursuant to section 40 (2) of the 1981 Act depriving B2 of his British citizenship, because she was satisfied that this would be conducive to the public good. The reason for her decision was that the Security Service assessed that B2 was involved in terrorism related activities and had links to a number of Islamist extremists.
On the 22 nd December 2011 the Secretary of State served notice of that decision on B2 pursuant to section 40 (5) of the 1981 Act. In that notice the Secretary of State stated that she was satisfied that her intended order would not make B2 stateless.
The Secretary of State further certified, pursuant to section 40 A (2) of the 1981 Act, that her decision had been taken in part in reliance on information which, in her opinion, should not be made public because its disclosure would be contrary to the public interest. The effect of this certificate was that any appeal against the Secretary of State's decision would be an appeal to SIAC, not to the First-tier Tribunal.
Later on 22 nd December 2011 the Secretary of State made an order under section 40 (2) of the 1981 Act, depriving B2 of British nationality on the grounds set out in her earlier notice. On the same day that order was served on B2 together with a notice of the Secretary of State's intention to order B2's deportation to Vietnam.
As soon as these documents had been served on B2, he was detained.
The deportation decision has subsequently been overtaken by events. This is because the United States of America have asked for B2 to be extradited to stand trial in the USA. The extradition hearing has not yet taken place. In the circumstances, although B2 has given notice of appeal against the deportation decision, this matter is not currently a live issue.
On the other hand, the question of B2's nationality remains very much a live issue. In order to challenge the Secretary of State's deprivation decision, B2 commenced the present proceedings.
By a notice of appeal dated 13 th January 2012 B2 appealed to SIAC against the Secretary of State's decision to deprive him of British nationality.
One of the grounds upon which B2 challenges the Secretary of State's deprivation decision is that this decision, if upheld on appeal, would leave him stateless.
SIAC held a preliminary hearing to determine the statelessness issue in June 2012. The panel comprised Mr Justice Mitting, Upper Tribunal Judge Allen and Mr P. Nelson. Most of the evidence relevant to the statelessness issue was open. Accordingly, most of the hearing before SIAC was held in public. There was, however, one short private session to deal with certain closed documents.
Two Vietnamese lawyers were called to give expert evidence about Vietnamese law. Ambassador Nguyen Quy Binh gave evidence on behalf of B2. Dr Nguyen Thi Lang gave evidence on behalf of the Secretary of State. I shall refer to relevant parts of their expert evidence, as necessary, in Parts 5 and 6 below.
On 29 th June 2012 the panel handed down its decision. The panel allowed B2's appeal on the basis that the effect of the Secretary of State's decision would be to render him stateless. Accordingly the panel held that the Secretary of State was not permitted to deprive B2 of British nationality. SIAC supplemented its open decision with a separate short closed decision. At the request of the Secretary of State the court has also read the closed judgment. There is nothing in the closed judgment which affects my conclusions in this case. I therefore put the closed decision out of my mind. The parties can rest assured that my conclusions are based solely on the open evidence and the open decision.
The Secretary of State was aggrieved by SIAC's decision. Accordingly she appeals to the Court of Appeal. The Secretary of State's principal ground of appeal is that her decision has made B2 de facto stateless, but not de jure stateless. Therefore her decision cannot make B2 stateless within the meaning of section 40 (4) of the 1981 Act. In the alternative, the Secretary of State contends that, even if B2 became de jure stateless, this could not have happened until some time after the relevant date, namely 22 nd December 2011. Accordingly the Secretary of State asks this court to reverse SIAC's decision on one or other of those two grounds.
Before tackling the issues in this appeal, I must first say something about the concept of statelessness.
In 1930 the Hague Convention on Certain Questions Relating To The Conflict of Nationality Laws established the principle that it was for each state to determine under its own laws who are its nationals. See articles 1 and 2.
In 1946, following the displacement of many ethnic groups during the Second World War, work was put in hand to define and provide for both...
To continue reading
Request your trial
-
Pham v Secretary of State for the Home Department
...Lady Hale, Deputy President Lord Mance Lord Wilson Lord Sumption Lord Reed Lord Carnwath THE SUPREME COURT Hilary Term On appeal from: [2013] EWCA Civ 616 Appellant Hugh Southey Alex Burrett (Instructed by J D Spicer Zeb, Solicitors) Respondent Robin Tam QC Tim Eicke QC Melanie Cumberland ......
- Ngiam Geok Mooi v Pacific World Destination East Sdn Bhd
-
Hilal Al-Jedda, appeal by
...Mr Swift submits that there is nothing in the decision of the Court of Appeal in B2 v The Secretary of State for the Home Department [2013] EWCA Civ 616 (a case upon which Mr Hickman placed considerable reliance) which on analysis assists Mr Al-Jedda’s case. In that case, the Secretary of S......
-
Viorel Micula v Romania
... ... 54(1) of the ICSID Convention provides: Each Contracting State shall recognise an award rendered pursuant to this Convention as binding ... (see, for example, Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 at 523, HL, per Lord ... not substance (see R (o/a Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 1719 at ... 's international obligations (cp Bulale v Secretary of State for the Home Department [2009] QB 806 ). Therefore, had it been necessary to do so, ... ...