Secretary of State for the Home Department v Al-Jedda
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Stanley Burnton,Lord Justice Gross |
| Judgment Date | 29 March 2012 |
| Neutral Citation | [2012] EWCA Civ 358 |
| Docket Number | Case No: T2/2011/1371 |
| Date | 29 March 2012 |
| Court | Court of Appeal (Civil Division) |
[2012] EWCA Civ 358
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Keith, Senior Immigration Judge Jordan and Mr CD Glyn-Jones
Appeal No: SC/66/2008
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Stanley Burnton
and
Lord Justice Gross
Case No: T2/2011/1371
Richard Hermer QC and Tom Hickman (instructed by Public Interest Lawyers) for the Appellant
Jonathan Swift QC and Rodney Dixon (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 13–15 December 2012
Introduction
The appellant, Mr Al-Jedda, came to the United Kingdom in 1992 as a refugee from the regime of Saddam Hussein. He was granted asylum and in 2000 he was granted British nationality. In 2004 he travelled to Iraq, where he was detained by British forces on grounds of suspected involvement with terrorism. He sought unsuccessfully to challenge his detention. On 30 December 2007 he was released from detention without charge. Just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under section 40(2) of the British Nationality Act 1981 depriving him of his British nationality. The appellant wants to return to the United Kingdom but the consequence of the order is that he has no right to do so. At the time of the judgment under appeal he was living with his family in Turkey.
Section 40 of the 1981 Act provides:
"(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."
The appellant lodged an appeal to the Special Immigration Appeals Commission ("SIAC") against the Secretary of State's order, on grounds directed both to subsection (2) and to subsection (4) of section 40. The grounds relating to subsection (2) were dismissed by SIAC on 7 April 2009. Prior to that, on 23 May 2008, SIAC had determined on a preliminary issue in relation to subsection (4) that the order depriving the appellant of his British nationality did not make him stateless. That decision, however, was subsequently quashed by the Court of Appeal on procedural grounds. Following a fresh hearing before a constitution presided over by Keith J, SIAC reached the same determination in a judgment handed down on 26 November 2010. That is the judgment against which the present appeal is brought.
Even though the focus of subsection (4) is on whether the Secretary of State is satisfied as to the effect of the order, it was common ground below that, in the context of an appeal to SIAC (as opposed to an application for judicial review) it was for SIAC to decide for themselves whether the order depriving the appellant of his British nationality made him stateless, and that there was no question of affording any deference to the view expressed by the Secretary of State that the order did not make him stateless: see SIAC's judgment at [8].
At the time when he first came to the United Kingdom, the appellant had Iraqi nationality. The effect of his being granted British nationality in 2000 was that, under the law of Iraqi as it existed at the time, he lost his Iraqi nationality. The main issue for SIAC to determine was whether his Iraqi nationality had been automatically restored to him by one or other of a number of Iraqi legislative instruments enacted following the occupation of Iraq by coalition forces in 2003. This required SIAC to consider the effect of the legislation as a matter of Iraqi law, and for that purpose to receive expert evidence on the subject. As SIAC put it at [13]:
"Whether the effect of the order depriving Mr Al-Jedda of his British nationality was to make him stateless is a matter of English law, but the answer turns on the Iraqi law of nationality. It is trite law that the determination of foreign law is a question of fact to be decided on expert evidence …."
At the hearing before SIAC both the appellant and the Secretary of State relied on expert evidence from Iraqi lawyers. Dr Abdul Rahman Mohsin, an experienced practitioner in nationality law, was instructed on behalf of the appellant. Mr Ammar Naji, who was a practising lawyer and the honorary legal adviser to the British Ambassador to Iraq but who had no practical experience in nationality cases, was instructed on behalf of the Secretary of State. SIAC made a number of observations at [13]-[17], to which no exception is taken, about the general approach to such evidence and about the two experts themselves. Their comments on the experts included these:
"17. Dr Mohsin gave evidence in Arabic through an interpreter. Mr Naji gave evidence in English. We have borne in mind that some parts of Dr Mohsin's evidence might not have got across quite as he intended, and that Mr Naji was giving evidence in a language which was not his first language. Having said that, the expertise of the witnesses (save for when it came to questions of international law) was not in doubt, and we are satisfied that they were doing their best to give their evidence impartially. No doubt for cultural reasons, Dr Mohsin had some difficulty in giving direct answers to the questions he was asked when his opinions were tested, and that undermines to some extent the value of the opinions he expressed."
It is apparent from the judgment as a whole that SIAC's choice between the views expressed by the two experts on the various substantive issues was based on specific consideration of their evidence in relation to the particular issues rather than on any general assessment, based for example on the impression they made when giving evidence, that one of the experts was more reliable than the other.
SIAC referred at [18]-[19] to evidence produced at a very late stage of the proceedings, in the form of a letter to Dr Mohsin from Major-General Al-Yasiri, Iraq's Director General of Nationality, and extracts from a textbook by Major-General Al-Yasiri on Iraqi nationality law. Whilst before SIAC there was an objection by the Secretary of State to the admissibility of that evidence, SIAC said that they would take it into account for the time being; and they proceeded to take it into account in their consideration of the substantive issues without any further ruling on its admissibility. Sensibly, the objection as to admissibility has not been maintained before us.
SIAC concluded that the appellant had had Iraqi nationality restored to him automatically either by the Law of Administration for the State of Iraq for the Transitional Period ("the TAL"), adopted on 8 March 2004 by the Governing Council of Iraq during the period of occupation by coalition forces, or by Iraqi Law No.26 of 2006 ("the 2006 Nationality Law") which came into force on 7 March 2006 following the end of the occupation, the expiry of the transitional period and the approval of a new Iraqi Constitution.
SIAC's conclusion rested on findings as to the meaning of the relevant Iraqi legislation which are findings of fact, albeit findings of fact "of a very different character from the normal issue of fact" ( Delmia Dairy Industries Ltd v National Bank of Pakistan [1978] 2 Lloyds Rep 223, 286 per Megaw LJ). An appeal to this court from SIAC's decision lies only on a point of law: see section 7(1) of the Special Immigration Appeals Commission Act 1997. Mr Jonathan Swift QC, for the Secretary of State, laid proper stress on the limited scope that this gives to an appellate court for interfering with SIAC's conclusion: it is not sufficient for this court to decide, however strongly, that it would have reached a different conclusion as to Iraqi law. Mr Richard Hermer QC, for the appellant, was fully cognisant of that limitation and put his case firmly on the basis that SIAC's findings of fact were vitiated by errors of law in the underlying analysis.
Whether or not Mr Hermer is correct in his identification of errors of law, I should say at once that the clarity of SIAC's judgment and the evident care taken in its drafting make it an extremely helpful platform for consideration of what I have found to be the difficult issues raised in this appeal.
I will proceed by examining the relevant Iraqi legislation and the main findings made by SIAC in relation to it, before turning to consider the appellant's criticisms of SIAC's reasoning.
The Iraqi legislation and SIAC's findings on it
The legislation pre-2003
SIAC dealt at [20]-[23] with Iraqi nationality between 1923 (when Iraq became an independent State) and 1963, in particular the Law of Nationality of 1924 ("the 1924 Nationality Law"). Under that law the appellant, who was born in 1957, acquired Iraqi nationality at birth.
The Law of Nationality of 1963 ("the 1963 Nationality Law") and related regulations ("the 1965 Regulations") were examined by SIAC at [24]-[32]. Articles 2, 3 and 4 of the 1963 Nationality Law "considered" certain people to be Iraq nationals through birth or parentage. Article 11 prohibited dual nationality, in terms similar to those previously contained in Article 13 of the 1924 Nationality Law. It provided:
"1. Each Iraqi who has acquired a foreign nationality in a foreign country upon his free choice will be denied the Iraqi nationality.
2. If the person who lost the Iraqi nationality upon paragraph (1) has returned to Iraq in...
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