London, 30 May 2013

On 24 May 2013, the UK Court of Appeal delivered its judgment in the case of B2 v The Secretary of State for the Home Department, overturning a ruling of the Special Immigration Appeals Commission. The Court, in deciding whether the deprivation of the respondent’s nationality following allegations of involvement in terrorism related activities would result in making him stateless, erroneously held that it would not, despite confirmation from the competent authorities in Vietnam (the only other country to which B2 had a potential claim to a nationality) that B2 was not a Vietnamese national. 

Instead, the Court found that the respondent would be de facto stateless as a result. ERT expresses concern with regard to this regressive judgment which demonstrates a failure of the Court to interpret the customary international law definition of statelessness in accordance with authoritative guidance of the UN High Commissioner for Refugees (UNHCR).

The case concerned section 40(2) of the British Nationality Act 1981 on the deprivation of British citizenship and section 40(4) of the Act which prohibits deprivation of citizenship if it would make the person stateless. This provision gives effect to Article 8(1) of the 1961 Convention on the Reduction of Statelessness, which has been ratified by the UK.

B2, a British citizen of Vietnamese origin, travelled to Yemen in December 2010, where the Security Service assessed he received terrorist training from Al Qaida and would therefore pose a threat to the safety and security of the UK. Consequently, on 22 December 2011 the Secretary of State made an order depriving B2 of his British nationality and ordered his deportation to Vietnam, after which B2 was detained. However, the Vietnamese Government stated that B2 is not a Vietnamese national and was not such on 22 December 2011.

The Court, after analysing relevant provisions of Vietnamese nationality law, held that if it is clear that under the law of a foreign state an individual is a national of that state, then he is not de jure stateless, but that if the government of a foreign state chooses to act contrary to its own law, it may render the individual de facto stateless. The Court further held that under these circumstances they “must respect the rule of law and cannot characterise the individual as de jure stateless”.

The judgment of the Court of Appeal is based on a flawed interpretation of the definition of statelessness found in Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons and recognised as customary international law. According to Article 1(1), “the term stateless person means a person who is not considered as a national by any State under the operation of its law.” UNHCR has provided authoritative guidance on the interpretation of Article 1(1), in its  Guidelines on Statelessness No. 1. It is unfortunate therefore, that the Court failed to refer to the Guidelines which are “intended to provide interpretive legal guidance for governments, NGOs, legal practitioners, decision-makers and the judiciary”. Instead, the Court referred to a UNHCR discussion paper on de facto statelessness and to the conclusions of the UNHCR Prato expert meeting on the definition of statelessness – both of which contributed to, but have in effect been superseded by, the UNHCR Guidelines.

The Guidelines note that the term “de facto statelessness” is not defined in any international instrument and state that “care must be taken that those who qualify as ‘stateless persons’ under Article 1(1) of the 1954 Convention are recognised as such and not mistakenly referred to as de facto stateless persons”, which is what the Court has done in this instance.

Had the Court referred to the Guidelines, it would have found that contrary to its assertion that “[t]he fact that in practice the Vietnamese Government may ride roughshod over its own laws does not (...) constitute 'the operation of its law' within the meaning of article 1.1 of the 1954 Convention”, UNHCR Guidance expressly states that such situations do result in statelessness.

According to the UNHCR Guidelines:

16. Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice (...) This is a mixed question of fact and law.

17. Applying this approach of examining an individual’s position in practice may lead to a different conclusion than one derived from a purely objective analysis of the application of nationality laws of a country to an individual’s case. A State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to “law” in the definition of statelessness in Article 1(1) therefore covers situations where the written law is substantially modified when it comes to its implementation in practice.

30. Where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national.

Consequently, it is evident that the role of the Court of Appeal in this instance should not have been to assess if Vietnamese nationality law as interpreted by the British courts would result in B2 being recognised as a national of Vietnam, but rather to assess whether the competent authorities in Vietnam consider B2 to be a national under Vietnamese law or not. The communication of the Vietnamese Government to this effect therefore stands alone as evidence that the deprivation of his British citizenship has rendered B2 stateless in breach of the UK’s domestic and international law obligations.

To read the Court’s judgment,  click here

To read ERT’s case summary,  click here

To read UNHCR’s Guidelines on Statelessness No. 1,  click here