DEPRIVATION OF NATIONALITY IN THE UK IN A NATIONAL SECURITY CONTEXT BRIEFING 2: AVOIDANCE OF STATELESSNESS WATCH THE LECTURE BY ALISON HUYGHE & PATRÍCIA CABRAL, (EUROPEAN NETWORK ON STATELESSNESS) In 2011, Vietnamese-born and naturalised British citizen Mr. Pham was deprived of his British nationality under s40(2) of the British Nationality Act 1981, because of suspected involvement in terrorist activities. This legislative provision empowers the Secretary of State to conducive to the public good”, so long as the person is not made stateless. Mr. Pham appealed this decision, claiming that the deprivation order was unlawful because it did have government declined to accept him as a Vietnamese citizen. He also asserted that the decision violated his right to respect for private and family life under the European Convention on Human Rights (ECHR). The UK Supreme Court ultimately dismissed Mr. Pham’s appeal, reiterating the reasoning of the Court of Appeal (para 19) that he could not be found stateless “if the relevant facts are known and on the basis of those facts and the expert evidence it is clear that under the law of a foreign state an individual is a national of that state”; and adding that where “the Government of the foreign state chooses to act contrary to its own law […] Our own courts, however, must respect the rule of law”. The Court did not touch upon the claims brought under the ECHR. As set out in of this series, British rules on change since the turn of the century, with deprivation powers expanded through successive law reforms. The case of Pham v. United Kingdom touches upon two fundamental issues associated with current deprivation of nationality in the UK: the avoidance of statelessness and These were discussed by Alison Huyghe and Patrícia Cabral during the second lecture in the UK Seminar Series on Citizenship Stripping and are set out in more SECTION 40(4A) OF THE BRITISH NATIONALITY ACT There is no prohibition against statelessness in the context of nationality deprivation for naturalised British citizens. Section 40(4A) of the 1981 Act says that statelessness “does not prevent” the Secretary of State from making a deprivation order if citizenship status results from the person’s naturalisation, the deprivation is conducive to the public good, and the Secretary of State has reasonable grounds to believe that the person is able, under the law of a country outside of the UK, to become a national of that country. Contrary to international standards, only “reasonable grounds” are needed to satisfy that the individual “is able” to claim citizenship elsewhere. This violates the principle of the avoidance of statelessness in international law. While the UK can set its own rules for the deprivation of British nationality, these powers are governed and limited by international law. One such limitation can be found in the avoidance of statelessness: States must not render an individual stateless through the exercise of nationality deprivation. This is set out in a number of international rules, as synthesized in the Principles on Deprivation of Nationality as a National Security Measure. PRINCIPLES ON DEPRIVATION OF NATIONALITY AS A NATIONAL SECURITY MEASURE Principle 5: The avoidance of statelessness 5.1. States must not render any person stateless through deprivation of nationality. 5.2. An assessment of whether deprivation of nationality will render a person stateless, is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of deprivation, the individual is considered by the competent authority of any other State, as a national under the operation of its law. WHEN IS A PERSON “STATELESS”? Article 1 of the 1954 Convention on the Status of Stateless Persons provides that a stateless person is someone “who is not considered as a national by any State under the operation of its law”. To prevent statelessness from ensuing from deprivation of nationality, it is vital that the burden of proving that loss or deprivation of nationality does not result in statelessness is carried by the State (not the individual), and that this assessment is made prior to issuing a deprivation order. The question of whether a person is recognized as a national by any other State, and hence whether they would or would not be rendered stateless as a result of deprivation or loss of nationality, should be answered in consultation with the authorities of the relevant State and the information as to the nationality