Al-Jedda v Secretary of State for the Home Department (Open Society Justice Initiative intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Neuberger,Lady Hale,Lord Mance,Lord Carnwath |
| Judgment Date | 09 October 2013 |
| Neutral Citation | [2013] UKSC 62 |
| Date | 09 October 2013 |
| Court | Supreme Court |
[2013] UKSC 62
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Wilson
Lord Carnwath
Appellant
Jonathan Swift QC
Rodney Dixon
(Instructed by Treasury Solicitors)
Intervener
James A. Goldston
Laura Bingham
Simon Cox
(Instructed by Open Society Justice Initiative)
Respondent
Richard Hermer QC Guy Goodwin-Gill
Tom Hickman (Instructed by Public Interest Lawyers)
Heard on 27 June 2013
Lord Wilson (with whom Lord Neuberger, Lady Hale, Lord Mance and Lord Carnwath agree)
1. The Secretary of State for the Home Department cannot make an order which deprives a person of his British citizenship on the ground that it is conducive to the public good if she is satisfied that the order would make him stateless. This appeal seeks to raise the question: if at the date of the Secretary of State's order it were open to the person to apply for citizenship of another state and if that application would necessarily be granted, is it her order which would make him stateless or is it his failure to make the application which would do so?
2. The Secretary of State appeals against an order of the Court of Appeal (Richards, Stanley Burnton and Gross LJJ) dated 29 March 2012, by which it quashed her order dated 14 December 2007 which purported to deprive Mr Al-Jedda ("the respondent") of his British citizenship.
3. The Secretary of State made her order pursuant to section 40(2) of the British Nationality Act 1981 ("the Act"). In its current form, which reflects substitutions made by section 4 of the Nationality, Immigration and Asylum Act 2002 and by section 56(1) of the Immigration, Asylum and Nationality Act 2006, section 40 of the Act provides as follows:
"40. Deprivation of citizenship
(1) …
(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.
(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of -
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.
(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).
(6) …"
So the issue is whether the Secretary of State's order in respect of the respondent was invalidated by subsection (4) above.
4. The respondent was born in Iraq in 1957 and inherited Iraqi nationality. In 1992 he and his first wife came to the UK and sought asylum. In 1998 they and their four children were granted indefinite leave to remain in the UK and on 15 June 2000 they were granted British nationality. The effect of his acquisition of British nationality was that the respondent automatically lost his Iraqi nationality pursuant to article 11 of the Iraqi Nationality Law No 43 of 1963.
5. In 2002, following divorce from his first wife and while he was temporarily abroad, the respondent married a second wife, by whom he had a child; and there he also entered into a polygamous marriage with a third wife, by whom he had three children. In 2008 he was divorced from his second wife. He is currently living in Turkey with his third wife and all eight of his children.
6. In September 2004 the respondent travelled from the UK to Iraq. In October 2004 US forces in Iraq arrested him and transferred him into the custody of British forces. For more than three years, namely until 30 December 2007, British forces detained him in Iraq, without charge, on grounds of his suspected membership of a terrorist group. Following his release he remained in Iraq until 3 February 2008, when he travelled to Turkey. In proceedings for judicial review which he had issued in 2005 the respondent contended that his internment violated his rights under article 5(1) of the European Convention on Human Rights. His contention was rejected both by the Divisional Court of the Queen's Bench Division and on his appeal to the Court of Appeal and also, by order dated 12 December 2007, on his further appeal to the House of Lords (R (Al-Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58, [2008] AC 332). Much later, however, namely on 7 July 2011, the Grand Chamber of the European Court of Human Rights held that his internment had violated his rights under article 5(1): Al-Jedda v United Kingdom (2011) 53 EHRR 789.
7. In 2006 the respondent had brought a separate claim for habeas corpus in which he asserted that his internment had become unconstitutional under Iraqi law. Following his release from detention he re-pleaded his claim as one for damages. In due course the claim was dismissed and the Court of Appeal upheld the dismissal ( Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758, [2011] QB 773).
8. The order by which the Secretary of State deprived the respondent of British citizenship was therefore made shortly prior to his release from internment. As required by section 40(5) of the Act, her order was preceded by a letter, dated 12 December 2007, by which she notified him that she had decided to make the order on the ground that, for four reasons which she specified, she was satisfied that it would be conducive to the public good. Pursuant to section 40A(2) of the Act, she certified in the letter that the decision was taken wholly or partly in reliance on information which in her opinion should not be made public, with the result that, under section 2B of the Special Immigration Appeals Commission Act 1997, his right of appeal lay to that Commission ("the Commission") rather than to the First Tier Tribunal ("the Tribunal").
9. In the domestic proceedings which, as described above, ended in the House of Lords on 12 December 2007, it was recorded as a fact that the respondent had dual British and Iraqi nationality (Lord Bingham of Cornhill, para 1). Apparently it was not then understood that, upon acquiring British nationality, the respondent had lost his Iraqi nationality. When, however, on 11 January 2008 he issued his notice of appeal to the Commission against the Secretary of State's order dated 14 December 2007, one of his grounds of appeal was that the order had made him stateless and was therefore void. The Commission resolved to treat this ground as a preliminary issue and, having refused the respondent's application for an adjournment, it determined it on 23 May 2008. The Commission found that, upon acquiring British nationality, the respondent had indeed lost his Iraqi nationality; and that fact then became no longer in issue. The Commission, however, proceeded to conclude (or, more strictly, to hold that the respondent had not established otherwise on the balance of probabilities) that he had regained Iraqi nationality under article 11(c) of the Law of Administration for the State of Iraq for the Transitional Period ("the TAL") which had been in force between June 2004 and May 2006. The Commission therefore rejected the respondent's contention that the Secretary of State's order had made him stateless. By further judgments, open and closed, dated 7 April 2009, the Commission rejected the respondent's remaining grounds of appeal against the order; and the dismissal of the appeal enabled the respondent to appeal to the Court of Appeal against the rejection of his contention that the order had made him stateless. On 12 March 2010 the Court of Appeal upheld his submission that the Commission had been wrong to refuse his application for an adjournment of the hearing in May 2008 and the court directed it to rehear the issue ( [2010] EWCA Civ 212).
10. On 26 November 2010 the Commission, differently constituted, again concluded that the respondent had regained Iraqi nationality prior to the date of the Secretary of State's order, which had therefore not made him stateless. It found that he had regained it automatically either under article 11(c) of the TAL or under article 10(1) of the Iraqi Law of Nationality 2006 which had in effect replaced the TAL. In the light of its conclusion the Commission observed that it had no need to address the Secretary of State's alternative contention, raised before it for the first time, that, if on 14 December 2007 the respondent had not been an Iraqi national, it had been open to him to regain it by application and that it had been his failure to make the application, rather than her order, which had made him stateless.
11. By its order under current appeal, the Court of Appeal set aside, as erroneous in law, the Commission's conclusion that prior to 14 December 2007 the respondent had automatically regained Iraqi nationality, whether under article 11(c) or under article 10(1). This court has not permitted the Secretary of State to challenge the Court of Appeal's disposal of that issue. But the effect of its disposal was to require that court to address the Secretary of State's alternative contention, which she had preserved by a respondent's notice. In a judgment with which Stanley Burnton and Gross LJJ agreed, Richards LJ rejected the alternative contention in the following terms:
"120. I am prepared to assume that if an application were made...
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