British citizenship and the vagaries of foreign nationality laws

Dr Devyani Prabhat, Lecturer in Law, School of Law

Dr Devyani Prabhat, Lecturer in Law, School of Law

The security of someone’s status as a British citizen would not generally be expected to depend upon the operation of foreign nationality laws. It seems logical that there should be something fundamentally British about British citizenship. However, it is often the case that when decisions are made by the special court – the Special Immigration Appeals Commission (SIAC) – the vagaries of foreign laws play a part in determining who gets to continue as a British citizen and who does not. One such case was decided this month by the UK Supreme Court after having been heard by the SIAC in 2008 on appeal from an order made by the Secretary of State in 2007. This is the case of Mr Al Jedda. ([2013] UKSC 62; judgement delivered on 9th October 2013).

Al Jedda remains British today owing to Iraqi nationality laws rather than any profound legal or philosophical content of British citizenship. His lawyers did not have to argue about civic consciousness or any form of social contract with the British state, nor did the government lawyers bring up those issues. They were not relevant. The case turned instead on technical points of Iraqi law.

Al Jedda’s original Iraqi citizenship was lost on acquiring British citizenship as Iraqi law did not permit dual nationality at the time he obtained British citizenship. Later Iraqi law changed to permit dual nationality but Al Jedda would have had to re-apply under the changed law for his Iraqi nationality to be regained. He did not re-apply for re-instating his old citizenship.

Al Jedda could have been deprived of his British citizenship by the Secretary of State if he had had Iraqi nationality. Without Iraqi nationality such an order is not possible as it would make him stateless (being neither British nor Iraqi) and would violate the Convention relating to the Status of Stateless Persons. The Secretary of State argued that Al Jedda could have applied to re-acquire his Iraqi nationality and his failure to do so is what makes him stateless rather than the order to deprive him of British citizenship.

passportThe Court rejected this argument. Whether Al Jedda had another existing nationality was the important point and not whether he could have obtained or regained another nationality. In order to come to this conclusion the court had looked at detailed submissions and arguments surrounding Iraqi domestic nationality laws.

The case was hailed by human rights lawyers and activists for having finally addressed statelessness and the process of British citizenship being taken away. However, it is also an apt example of the many problems of proceedings which deprive people of citizenship and how they challenge the core meaning of British citizenship. What remains as sacrosanct about this relationship between members of a state and the state if its existence only depends on the timings and technicalities of foreign laws? Is it fair to submit only dual nationality holders and those who might unwittingly be dual nationality holders to this process? Should not this process be scrapped altogether rather than being inapplicable on technical grounds for specific cases? And finally, it took over 6 years from the deprivation order (in 2007) for the case to wind its way up to the Supreme Court.  Is this an effective method of dispensing justice (from the perspectives of both rule of law and national security)? Certainly this case provides a lot to reflect on for those interested in security and justice.

You may also be interested to read the following:

Man cannot be stripped of British citizenship, rules Supreme Court

Humiliating defeat for Theresa May in Supreme Court appeal over ‘stateless’ former terror suspect stripped of British citizenship

Court clarifies statelessness in Al-Jedda

Al-Jedda, “statelessness” and the meaning of words

 

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