Pham v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Neuberger,Lady Hale,Lord Wilson,Lord Mance,Lord Sumption,Lord Reed |
| Judgment Date | 25 March 2015 |
| Neutral Citation | [2015] UKSC 19 |
| Court | Supreme Court |
| Date | 25 March 2015 |
[2015] UKSC 19
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath
Appellant
Hugh Southey QC
Alex Burrett (Instructed by J D Spicer Zeb, Solicitors)
Respondent
Robin Tam QC
Tim Eicke QC
Melanie Cumberland (Instructed by Treasury Solicitor)
Intervener (Open Society Justice Initiative)
James A Goldston
Simon Cox
Laura Bingham (Instructed by Freshfields Bruckhaus Deringer LLP)
Heard on 18 and 19 November 2014
( with whom Lord Neuberger, Lady Hale and Lord Wilson agree)
The central issue in this appeal is whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within the meaning of article 1(1) of the 1954 Convention relating to the Status of Stateless Persons) he was "a person who is not considered as a national by any state under the operation of its law". If this issue is decided against him he also seeks to argue that the decision was disproportionate and therefore unlawful under European law.
The appellant was born in Vietnam in 1983 and thus became a Vietnamese national. In 1989, after a period in Hong Kong, the family came to the UK, claimed asylum and were granted indefinite leave to remain. In 1995 they acquired British citizenship. Although none of them has ever held Vietnamese passports, they have taken no steps to renounce their Vietnamese nationality. The appellant was educated in this country and attended college in Kent. At 21 he converted to Islam. Between December 2010 and July 2011 he was in the Yemen, where, according to the security services but denied by him, he is said to have received terrorist training from Al Qaida. It is the assessment of the security services that at liberty he would pose an active threat to the safety and security of this country. That assessment has not yet been subject to judicial examination.
On 22 December 2011 the Secretary of State served notice of her decision to make an order under section 40(2) of the British Nationality Act 1981 depriving the appellant of his British citizenship, being satisfied that this would be "conducive to the public good". She considered that the order would not make him stateless (contrary to section 40(4)) because he would retain his Vietnamese citizenship. The order was made later on the same day and served on the appellant, followed by notice of her decision to deport him to Vietnam. Thereafter, the Vietnamese government has declined to accept him as a Vietnamese citizen.
The United States of America have asked for him to be extradited to stand trial in that country. The Home Secretary certified that the request of the USA for the extradition of the appellant was valid. The appellant challenged the request before District Judge Nicholas Evans over several dates during July and October 2013. The District Judge rejected all grounds of challenge in a judgment handed down on 26 November 2013. The Home Secretary made her decision to order the extradition of the appellant on 22 January 2014 and the appellant appealed. The hearing before Aikens LJ and Simon J took place on 15 and 16 July 2014. The parties made further written submissions on 17 and 24 November 2014 and 1 December 2014. The Administrative Court gave its judgment on 12 December 2014, dismissing the appeal ( [2014] EWHC 4167 (Admin). At para 91 Aikens LJ held that the issue of the appellant's citizenship "makes no difference to his relevant article 6 rights". The Administrative Court refused to certify a question of general public importance on 30 th January 2015. Under the relevant provisions of the Extradition Act 2003, the appellant must be extradited within 28 days, that is, no later than 26 February 2015.
On 13 January 2012 he appealed against the decision to remove his British citizenship on legal and factual grounds. His grounds of appeal asserted (inter alia) that he was married to a British citizen with a child, that he was of good character and was not linked to terrorism as claimed, and that the decision was incompatible with his rights under the European Convention on Human Rights. He also claimed that deprivation of British citizenship was prohibited by section 40(4) because it would render him stateless. This was on the grounds that Vietnamese law did not permit dual nationality, and accordingly his Vietnamese citizenship had been lost when he became a British citizen. The Secretary of State had certified (under section 40A(2)) that her decision had been taken in part in reliance on information, disclosure of which would be contrary to the public interest. His appeal accordingly lay to the Special Immigration Appeals Commission (SIAC): Special Immigration Appeals Commission Act 1997, section 2B. By section 4 of that Act the panel may consider not only whether the decision was in accordance with law, but also whether any discretion exercised by the Secretary of State should have been exercised differently.
In June 2012 SIAC held a hearing to determine, as a preliminary issue, the issue of statelessness. On 29 June 2012 the panel allowed the appeal, holding that the effect of the Secretary of State's decision would be to render him stateless. On 24 May 2013 that decision was reversed by the Court of Appeal ( [2013] EWCA Civ 616: Jackson, Lloyd Jones and Floyd LJJ), which remitted the case to SIAC for further consideration of the other grounds of appeal.
SIAC had given a fully reasoned decision on the statelessness issue in an open judgment. As the Court of Appeal noted, it had supplemented its open decision with a separate short closed judgment, which the Court of Appeal had read at the request of the Secretary of State. Although the panel indicated that an appellate court would need to refer to the closed judgment "fully to understand the reasons for our decision" (para 2), the Court of Appeal found nothing in it which affected their conclusions in the case (para 22, per Jackson LJ). In this court neither party has invited us to look at the closed judgment nor suggested that the closed material contains anything which might affect our conclusions on the questions we have to decide.
SIAC noted the course of dealings between the British and Vietnamese governments in connection with the decision made in December 2011. Although there was evidence of discussions between the two governments beginning in October 2011, the panel found that no information "about the identity, date and place of birth or alleged activities of the appellant" was communicated to the Vietnamese government until 22 December. It continued:
"It is not suggested that the Vietnamese government then had any view about the status of the appellant. There have been extensive discussions between the British and Vietnamese governments about him since then, the relevant parts of which are analysed in the closed judgment. It is a fact that, despite being provided with those details, the Vietnamese government has not expressly accepted that the appellant is (and was on 22 December 2011) a Vietnamese citizen. For reasons explained in the closed judgment, we are satisfied that this omission is deliberate …
There is no evidence or suggestion that the Vietnamese government has taken any action since 22 December 2011 to deprive the appellant of Vietnamese citizenship." (paras 7–8)
They were shown extracts of the relevant Vietnamese laws, and heard evidence from two Vietnamese lawyers, Ambassador Binh for the appellant and Dr Nguyen Thi Lang for the Secretary of State. It is unnecessary to do more than summarise the main points, which are not now in dispute.
Following the end of the Vietnam war, North and South Vietnam were reunited in 1975, eight years before the appellant was born. At that time nationality was governed by Order 53, dating from 1945, which continued in force until 1988. Under that order children born in Vietnam automatically acquired Vietnamese citizenship. The order also provided (with one irrelevant exception) that a Vietnamese citizen would lose that nationality on acquiring foreign nationality, thus in effect prohibiting dual nationality.
That order was replaced by the 1988 Nationality Law, which remained in force until 1998, and was therefore the operative law when the appellant acquired British citizenship in 1995. Article 3 of the 1988 Law provided:
"Recognition of a single nationality for Vietnamese citizens. The State of the Socialist Republic of Vietnam recognizes Vietnamese citizens as having only one nationality being Vietnamese."
Unlike Order 53 the 1988 law did not in terms prohibit dual nationality. SIAC rejected the appellant's submission that it did so by implication (para 10). It found further (para 17) that the possibility of dual citizenship was expressly acknowledged by a 1990 decree by the Council of Ministers, which made specific provision for "Vietnamese citizens who concurrently hold another nationality". Ambassador Binh, who had played a part in drafting the 1988 legislation, gave evidence of the then policy to encourage the return of Vietnamese citizens who had left the country for political or economic reasons (para 15).
Article 8 of the 1988 Law provided that a citizen might lose Vietnamese nationality in four defined circumstances: (1) being permitted to relinquish Vietnamese nationality, (2) being deprived of that nationality, (3) losing that nationality as a result of international treaties, or (4) losing Vietnamese nationality "in other cases as provided for in this Law"....
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