In a significant ruling last week, the Supreme Court rejected the home secretary’s attempt to revoke the citizenship of a released terrorism suspect, exposing as it did so hypocrisy, illogicality and illegality in the minister’s stance.
‘Possession of nationality is essential for full participation in society and a prerequisite for the enjoyment of the full range of human rights.’ So says the May 2013 guidance from the Home Office on applications for those seeking to remain in the UK who are stateless. However, as the Supreme Court revealed in its 9 October 2013 judgment against the Home Office in the long-running case involving Hilal Abdul-Razzaq Ali Al-Jedda, the minister seems to have treated Mr Al-Jedda with a lack of care approaching flippancy when it came to the impact of the order depriving him of British citizenship.
Mr Al-Jedda, who is now 56, was a refugee from Saddam Hussein’s Iraq when he came to the UK in 1992. Recognised as a refugee in 1998, he was granted British citizenship in 2000. Under Iraqi law, taking British nationality automatically lost him his Iraqi nationality. In October 2004, US forces captured him in Iraq and gave him over to British forces, who held him without charge for over three years as a suspected member of a terrorist group. He was released in December 2007, but shortly before his release he was served with an order depriving him of British citizenship, and was barred from returning to the UK.
Metaphysical arguments
The right to a nationality is enshrined in Article 15 of the Universal Declaration of Human Rights, and in the 1954 European Convention on Statelessness. As the Supreme Court recognised, in the words of Hannah Arendt adopted by US Chief Justice Warren in 1958, a right to nationality is ‘nothing less than the right to have rights’. Although it has become a lot easier to remove someone’s British citizenship, British law on deprivation of nationality reflects these international obligations by stating that deprivation can’t happen if it would make the person stateless. It would seem quite obvious that under these provisions, the Home Office could not deprive Mr Al-Jedda of his citizenship. But in their anxiety to remove his citizenship, the lawyers came up with a succession of bizarre arguments in the Special Immigration Appeals Commission (SIAC), in the Court of Appeal and in the Supreme Court.
In SIAC, the argument was that a 2004 Iraqi law had automatically returned citizenship to those who, like Mr Al-Jedda, had lost it when they acquired another citizenship. SIAC accepted that argument and dismissed Mr Al-Jedda’s appeal. The Court of Appeal set SIAC’s judgment aside as not based on the facts, whereupon the Home Office lawyers came up with a new argument: that although it might appear that the minister’s order made him stateless, in fact what made him stateless was his failure to apply for the return of his Iraqi nationality, which (they said) would have been granted as of right had he bothered to apply at any time. So if he was stateless it was his fault, not the minister’s. The Court of Appeal and the Supreme Court both rejected this metaphysical argument. The Supreme Court quoted another piece of the Home Office May 2013 guidance, to the effect that the assessment of a person’s nationality ‘is not a historic or a predictive exercise’. For good measure, the court pointed out that under Iraqi law, restoration of lost nationality was by no means automatic: applicants had to show a period of lawful residence, and the authorities could refuse the application.
The minister’s final argument, produced for the first time in the Supreme Court five and a half years after the event, was that the fake Iraqi passport on which Mr Al-Jedda had admittedly left Iraq for Turkey on his release from detention at the end of 2007 was in fact genuine. The court refused to engage with this last desperate throw of the dice – although the possibility remains that the Home Office could try to resurrect this argument to prevent Mr Al-Jedda from returning to the UK.
Al-Jedda’s long saga
This was not Mr Al-Jedda’s first legal battle with the British authorities. His legal saga had begun in 2005, when, through Public Interest Lawyers, he brought a judicial review of his internment in Iraq, arguing that it breached his rights to freedom from arbitrary detention under the European Convention of Human Rights. All the British courts – the High Court, the Court of Appeal and the House of Lords (the precursor of the Supreme Court) ruled against him, and it was only when his case got to the European Court of Human Rights that his rights were vindicated with a ruling against the government.
Impact of legal aid residence test
Ironically, Mr Al-Jedda might not have been able to vindicate his right to retain his British citizenship if the residence test which the government is pushing through for legal aid funding had been in force. The new measure will deny public funding to anyone who is not in the UK lawfully at the time of the decision and has chalked up twelve months’ lawful residence. Although issues involving liberty and proceedings in SIAC are exempt, meaning that Mr Al-Jedda would still have been able to challenge his internment and launch his SIAC appeal against deprivation of citizenship, it is likely that funding would not have been available for the Court of Appeal and the Supreme Court hearings. Without funding, and with Mr Al-Jedda unable to return to the UK to present his case in person, SIAC’s mistaken belief that he had re-acquired Iraqi citizenship would have prevailed and he would have lost British citizenship for good. The government intends to impose the residence test by regulations early in 2014.
Related links
Download a copy of the judgment here (160kb pdf file)
Read a copy of the Public Interest Lawyers press release here