Al-Jedda: Judicial Commitment to the Universal Application of the Right to a Nationality
The Immigration, Asylum and Nationality Act 2006 provides that the Secretary of State may, as a general rule, deprive an individual of British citizenship where she is satisfied that this would be conducive to the public good. However, this is subject to an exception: such deprivation of citizenship is not permitted where the Secretary of State is satisfied that it would make the individual stateless. The question in the case of Al-Jedda v Secretary of State for the Home Department was whether such a deprivation would be permissible if it were open to the individual to apply for citizenship of another state at the time of his deprivation of British citizenship.
The individual in this case had Iraqi nationality, and in 2000 he was granted British nationality. Under Iraqi law, the acquisition of British nationality led to the individual losing his Iraqi nationality. From 2004 to 2007 he was detained by British forces in Iraq, on suspicion of being a member of a terrorist group. As a result, the UK was held, in the case of Al-Jedda v UK, to have violated his right to liberty under Article 5 ECHR. The order by the Secretary of State, depriving the individual of British citizenship, was subsequently made prior to his release from internment.
The Court noted the root of the “evil of statelessness” in the deprivation of nationality of German Jews under the Third Reich. Article 15 of the Universal Declaration of Human Rights provided that everyone had a right to a nationality, and that no one should be arbitrarily deprived of his nationality nor denied the right to change nationality. The Court held that the arbitrary denial of citizenship could also violate the right to respect for private life under Article 8 of the European Convention on Human Rights.
As well as this general law, there also exists specific international law on statelessness: the 1954 Convention Relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. It was from these international instruments that the prohibition on deprivation of nationality where this would cause the individual to become stateless entered into UK domestic law.
Turning to address the present individual’s situation, the Court doubted whether, in reality, he would be able to have his Iraqi nationality restored. This was because the relevant provisions of Iraqi law provided that, for Iraqi nationality to be re-acquired, an individual would have to fulfil certain residence and other requirements, and that in any event the Iraqi authorities still retained a discretion to refuse to re-grant Iraqi nationality. However, even putting this doubt to one side, the Court nevertheless unanimously held that the order which the Secretary of State sought to make was impermissible. It rejected her argument that, as the relevant legislation only prohibited such an order where she was “satisfied” that it would make the individual stateless, it would allow the deprivation of nationality causing statelessness in some circumstances. As Lord Wilson pointed out in paragraph 30, “a requirement that I should be satisfied of a fact does not enlarge or otherwise alter the nature of the fact of which I should be satisfied.” As a result, the Court held that the effect of the legislation was unambiguous: in all cases where an order depriving an individual of his nationality would cause him to become stateless, it would not be allowed.
An alternative argument advanced by the Secretary of State was that the legislation required an “active” or “real” cause of statelessness to be identified. In the present case, she argued, the “real” cause of the individual’s statelessness wasn’t the order, but rather, the individual’s failure to secure immediate restoration of his Iraqi nationality. However, this argument was also rejected. The Court held that the purpose of the legislation was to facilitate a straightforward factual inquiry: did the individual hold another nationality at the date of the order? To adopt the Secretary of State’s interpretation of the legislation would, it held, lead to unnecessary complexity in determining the potency of causes of the individual’s statelessness.
Given the Court’s emphasis on international and domestic efforts to combat the evil of statelessness, it was correct to insist on a straight-forward reading of the Act. Where exceptions and discretions are allowed to creep in, the risk is that the Secretary of State is able to manipulate her powers in order to serve political ends. It is no coincidence that the individual in this case was a terrorist suspect. This judgment is therefore to be praised as reflecting judicial commitment to ensure that human rights are available to all individuals, no matter their situation.
Claire Overman is studying for the BPTC at Kaplan Law School, having completed the BCL at the University of Oxford. She is a frequent contributor to the OxHRH Blog.