Proof of Foreign Nationality and Citizenship Deprivation: Pham and Competing Approaches to Proof in the British Courts
| Published date | 01 November 2022 |
| Author | Rayner Thwaites |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12741 |
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Modern Law Review
DOI:10.1111/1468-2230.12741
THE
MODERN LAW REVIEW
Volume 85 November 2022 No. 6
Proof of Foreign Nationality and Citizenship
Deprivation: Pham and Competing Approaches to Proof
in the British Courts
Rayner Thwaites∗
This paper analyses competing approaches to proof of foreign nationality in the British courts,in
the context of challenges to deprivation of citizenship.I argue that prevalent British approaches
to proof, as on display in the Pham litigation and subsequent cases,are in unproductive tension
with a fundamental principle of nationality law, namely that it is for each state to determine
under its law who are its nationals. Prevalent British approaches elide this principle, eectively
wresting interpretive authority over foreignnationality lawaway from the relevant foreign state.
I argue for approaches focused on direct ascertainment of foreign nationality, as opposed to its
reconstruction according to British standards.
INTRODUCTION
This paper analyses competing approaches to proof of foreign nationality in
the British courts, in the context of challenges to deprivation of citizenship.
I argue that prevalent British approaches to proof are in unproductive tension
with a fundamental principle of nationality law,namely that it is for each state to
determine under its law who are its nationals.Prevalent British approaches elide
this principle, eectively wresting interpretive authority over foreign nationality
law away from the re levant foreign state, wh ether or n ot t his is the intent . These
∗Sydney Law School, University of Sydney. Particular thanks to Michelle Foster, Helen Irving,
Campbell McLachlan,Kevin Waltonand the anonymous reviewers for comments,and to Ellen Moore
for invaluableresearch at the outset. Research for this article was generously supported by an Australia
Research Council Discovery Early Career Researcher Award (DE160101123, Conditional Citizen-
ship?).Thinking on this article star ted with a series of presentations in 2018:to the Cross-Border Issues
in Australasian Courts workshop, Victoria University of Wellington & Otago University, February
2018 (with thanks to Maria Hook and Bevan Marten); the sta seminar,University of Sydney, and the
Statelessness Seminar Series, Peter McMullin Centre on Stateless, University of Melbour ne, both in
September 2018 and; the Transformation of Citizenship Conference, University of Graz,November
2018, and also the Julius Stone Institute Seminar Series, University of Sydney,November 2020. My
thanks to participants and commentators. All URLs were last visited 22 February 2022.
© 2022 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1301–1328
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Proof of Foreign Nationality and Citizenship
approaches have detrimental consequences for clarity of nationality status (and
with it legal protection and responsibility) and international cooperation.
There has been a rapid proliferation of citizenship deprivation laws in liberal
democracies (and elsewhere) in the two decades since the terrorist attacks of
11 September 2001.1These deprivation schemes are commonly introduced in
countries which advocate compliance with international law,more particularly
compliance with the prohibition on the creation of statelessness contained in
the 1961 United Nations Convention on the Reduction of Statelessness2(the
1961 Convention). Observance of this prohibition has meant that only dual
nationals, those holding another nationality in addition to the nationality of
the depriving state, can be stripped of citizenship. Under the British laws im-
plementing these convention obligations,if the subject of a British deprivation
decision can prove that he or she does not possess a foreign nationality,3then
the decision is invalid.
What is a British court’s role in interpreting foreign nationality law in the
deprivation context? I answer this question through an analysis of the Pham
litigation.4TheSupreme Court decision that concluded that litigation,5remains
the leading British authority on proof of nationality in deprivation cases. The
nature of its rulings on that point are contested, its legacy unclear. While other
aspects of the decision have attracted signicant commentary – its contribution
to common law judicial review,6or its treatment of statelessness at international
law7– there is scant writing on its approach to foreign nationality in the English
legal context, or that addresses its relation to private international law.8These
1 Deprivation powers were in place before 11 September 2001. The number and breadth of
those powers and the frequency of their use has increased dramatically since then: see In-
stitute for Statelessness and Inclusion, ‘Expanding Deprivation of Nationality Powers in the
Security Context: Global Trends’ in The World’s Stateless: Depr ivation of Nationality at https:
//www.institutesi.org/resources/worlds-stateless- 2020, 211.
2 Convention on the Reduction of Statelessness, opened for signature on 30 August 1961, 989
UNTS 175 (entered into force on 13 December 1975).The United Kingdom signed the 1961
Convention on 30 August 1961 and ratied it on 29 March 1966.
3 Subject to a qualication introduced by amendments in 2014,on which see n 17 below.
4 The litigation concluding with the Supreme Court’s decision in Pham vSecretary of State for the
Home Department [2015] 1 WLR 1591 (Pham (SC)). Subsequent British litigation between Minh
Pham and the Secretary of State, addressed to other issues (other than the preliminary question
of whether deprivation of British citizenship would leave him stateless),is beyond the scope of
this paper,but is noted in n 32 below.
5Pham (SC) ibid.
6 The case was greeted as ‘a landmark in the emergence of proportionality as a
common-law head of review’: M. Elliott, ‘Proportionality and contextualism in
common-law review: The Supreme Court’s judgment in Pham’ 17 April 2015 at
https://publiclawforeveryone.com/2015/04/17/proportionality-and- contextualism-in-
common-law-review-the-supreme- courts-judgment- in-pham/, and has become a key ref-
erence in wider debates about substantive review. See,for example: R. Williams, ‘Structuring
Substantive Review’ [2017] PL 99. Pham’s contribution to substantive review in English public
law falls outside the scope of this paper.
7 See for example C.Wilson-Brown,‘Dening Statelessness: Rights and Wrongs in UK Immigra-
tion Law’ (2017) 8 Queen Mary Law Jour nal 1,and F.T.Temprosa,‘Statelessness as Rhetor ic: The
Case for Revisioning Statelessness in our Statist World’ (2020) 38 Berkeley Journal of International
Law 240.
8 The exception is E. Fripp,‘Conducive deprivation of British citizenship status and statelessness:
further problems’(2013) 27 Journal of Immigration, Asylum and Nationality Law 315,wr itten before
1302 © 2022 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1301–1328
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