London, 23 October 2013

Two important judgments have recently been given in cases with significant implications for statelessness. The judgments highlight two ends of the spectrum in the battle to eradicate statelessness caused by discrimination on grounds of descent.

In the first case, following Judgment TC/0168 of the Constitutional Court of the Dominican Republic on 23 September 2013, it is estimated that up to half a million people will be either stripped of their Dominican citizenship or have recognition of their citizenship refused, rendering them stateless. In the second case, on 9 October 2013, the UK Supreme Court issued its judgment in Secretary of State for the Home Department v Al-Jeddah reiterating that the UK could not strip a British national of their citizenship in any circumstances if doing so would render that person stateless.

Dominican Republic

ERT has long been concerned about the invidious direct discrimination faced by Dominicans of Haitian descent in the Dominican Republic. On 23 September 2013, the Constitutional Court handed down a controversial ruling which caused further concern. The ruling allows the removal of the right to nationality for all citizens of foreign descent dating back to 21 June 1929. It has been estimated that the decision affects at least a quarter of a million citizens, the majority of these being Dominicans of Haitian descent. The case concerned Ms Juliana Deguis Pierre, who was born in the Dominican Republic of Haitian parents and registered as Dominican by birth. In 2004 a new General Law on Migration put an end to the automatic recognition of Dominicans of foreign descent as nationals. This law was applied retroactively, meaning that thousands of Dominicans, including Ms Pierre, were in practice stripped of their citizenship and left in a legal limbo. Ms Pierre took her case to the Constitutional Court. The Constitutional Court held that Ms Pierre, and anyone in the same situation, did not meet the requirements to be registered as a Dominican national and when implemented she along with hundreds of thousand will be stripped of their citizenship and rendered stateless.

ERT considers that this decision and the General Law on Migration directly discriminate against a large group of Dominicans on the grounds of their descent and is in violation of the Dominican Republic’s obligations under international and regional human rights law. In particular, we note that the decision contravenes the 2005 judgment of the Inter-American Court of Human Rights in Yean and Bosico Children v Dominican Republic in which the court found that the Dominican Republic’s failure to grant nationality to two children born to Dominican mothers of Haitian descent was discrimination on grounds of their descent. ERT further shares the deep concern of the Inter-American Commission on Human Rights, UNICEF, the Open Society Foundations and others that the latest decision will have a devastating effect on hundreds of thousands of people who now face the threat of deportation and who will now struggle to exercise their civil and political and socio-economic rights. ERT joins calls for the Dominican Republic to recognise the citizenship of those affected and to adopt legislation to ensure that others are not rendered stateless by its procedures in future.

United Kingdom

By contrast, on 9 October 2013 the UK Supreme Court issued a robust judgment in which it held that the Secretary of State’s decision to deprive a citizen of his British nationality was unlawful. Mr Al-Jedda arrived in the UK from Iraq in 1992 and sought and was granted asylum. In 2000 he was granted British nationality and so, under Iraqi law, automatically lost his Iraqi nationality.  In 2004, Mr Al-Jedda travelled back to Iraq where he was arrested by US forces and held without charge by British forces until 30 December 2007on suspicion of membership of a terrorist group. Mr Al-Jedda claimed that the imprisonment amounted to a violation of his right to liberty and security and his claim was eventually upheld by the European Court of Human Rights on 12 December 2007. On 14 December 2007, before his release, the Secretary of State, considering it to be conducive to the public good to do so and in accordance with section 40(2) of the British Nationality Act 1981, stripped Mr Al-Jedda of his British citizenship.

Mr Al-Jedda appealed the decision to strip him of his citizenship to the Special Immigration Appeals Commission (SIAC) in 2008 arguing that the decision rendered him stateless and so was in violation of section 40(4) British Nationality Act 1981. The Commission rejected Mr Al-Jedda’s claim, holding that he had regained Iraqi citizenship under an Iraqi law in force between 2004-2006 and so was not rendered stateless. In 2010, the Court of Appeal held SIAC’s finding was wrong in law and overturned the Secretary of State's order. The Secretary of State appealed to the Supreme Court alleging that Mr Al-Jedda’s statelessness was due to his failure to re-apply for Iraqi citizenship between 2004 – 2006 and not due to his loss of British nationality.

The Supreme Court interpreted the British Nationality Act 1981 with reference to two UN Conventions ratified by the UK – the Convention relating to the Status of Stateless Persons 1954 and the Convention on the Reduction of Statelessness 1961 – and to the 2012 UN High Commissioner for Refugees’s (UNHCR) “Guidelines on Statelessness No 1”, part of which had been incorporated word for word into UK Home Office guidance in May 2013. The Supreme Court held that removing Mr Al-Jedda’s nationality was unlawful. Specifically:

• The Court did not accept that it was, in fact, a certainty that had Mr Al-Jedda applied for citizenship from 2004-2006 he would have been granted it. The relevant Iraqi law contained requirements such as the need to reside in Iraq for a year and, in all circumstances, gave the state discretion to deny citizenship, even where the criteria were met.
• However, even if it had been, in determining whether the decision rendered Mr Al-Jedda stateless, the only issue is whether or not, at the time of the decision, he had another nationality. It was not relevant whether, albeit without a nationality at the date of the decision, Mr Al-Jedda could acquire another nationality with ease. To hold otherwise would be to mire the application of the law on deprivation of citizenship in further complexity.
• Although the wording of Article 7 of the 1961 Convention permitted the legislature to deprive a person of citizenship in circumstances where, on so doing, that person may “acquire” citizenship elsewhere the UK legislature had chosen not to include such wording in its national law and the Court would not “place a gloss, as substantial as it is unwarranted” on section 40(4). 
• UNHCR Guidance, incorporated into UK Home Office guidance, made it clear that a person is either a national or not at the time of a decision. The status of an application to acquire citizenship elsewhere could have no bearing on the decision. “The Secretary of State’s own guidance eloquently [exposed] the fallacy behind her appeal”.

ERT welcomes the Supreme Court’s clear and unequivocal judgment which upholds the principle that the deprivation of citizenship will not be acceptable where it results in a person being rendered stateless. ERT recognises that any laws which permit a deprivation of citizenship may indirectly discriminate against naturalised citizens of foreign origin as the state is more likely to argue that they would not be rendered stateless by a deprivation. ERT hopes that other national courts will take note of this judgment and provide equally robust protection to those most at risk of being rendered stateless.

To read the Dominican Republic Constitutional Court's judgment (in Spanish) click here

To read ERT’s case summary of the Al-Jedda judgment click here

To read the UK Supreme Court's judgment click here