49. International law prohibits deprivation of nationality where such deprivation would render a person stateless.65 This prohibition is formally incorporated into domestic UK law through Section 40 (4) BNA, which provides that the HS ‘may not make an order under subsection (2) if he is satisfied that the order would make a person stateless’. 50. However, we are concerned about a legal carve-out from this formal rule, which permits the HS to deprive naturalised British citizens of their British nationality where the HS has reasonable grounds for believing that the person could become a citizen of another state – whether or not they would actually be successful in obtaining such citizenship. 66 This is contrary to the 1961 Convention. The UNHCR Guidelines suggest that the assessment of whether deprivation of nationality will render a person stateless must consider whether, at the point of deprivation, the individual is considered a national under the operation of another country's law, rather than speculating as to possible future citizenship acquisition.67 51. In addition, UK courts have held that the burden of proof is on the individual deprived of their nationality to establish that they could not become a citizen of another State. 68 This runs contrary to UNHCR Guidelines, which establish that deprivation procedures that ‘place the burden of proof solely on the individual to prove statelessness’ are likely to be inconsistent with Article 8 of the 1961 Convention.69 52. We are also concerned that the UK has, in practice, rendered people stateless by depriving them of nationality. In the past years, UK courts have decided that some of the HS's orders to deprive people of British nationality were unlawful on the basis that they made the person stateless.70 53. Furthermore, even where a deprivation decision does not formally leave a person stateless, the loss of British nationality ‘may nevertheless have a profound effect upon her life, especially where her alternative nationality is one with which she has little real connection’.71 Prohibition of discrimination 65 Article 8 (1) 1961 Convention; see also Principle 5, Deprivation Principles, and pages 37 – 40 of the Commentary to the Principles. Section 40(4A) of the 1981 Act says that statelessness "does not prevent" the Secretary of State from making a deprivation order, if: (a) "the citizenship status results from the person's naturalisation and (b) “the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory". 67 UNHCR, Guidelines on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness, (“UNHCR Guidelines No. 5”) (May 2020) available at: https://www.refworld.org/docid/5ec5640c4.html, para. 5. 68 In Hashi v SSHD, the question of whether Hashi would be stateless rested on the question of whether he had Somali citizenship at the time of deprivation, which depended on whether a particular Charter was or was not in force (which was unclear). SIAC ruled that it was the “preferable view” that he had not lost his Somali citizenship upon acquiring UK nationality, and that it was “probable” that he regained it. The requirement that the individual prove that he is stateless is a much higher bar than the standard for the HS to be satisfied on reasonable grounds. Furthermore, in Pham v SSHD, the Supreme Court again ruled that Pham had the possibility of Vietnamese nationality at the date of the deprivation. This was despite the fact that the Vietnamese legislation on dual-citizenship is deliberately ambiguous (so as to allow the executive to make whatever decisions it wishes) and the government subsequently declined to accept him as a Vietnamese citizen. Nonetheless, at the time of the deprivation, the government had not made any decision, and so the HS was satisfied that they had reasonable grounds that Pham could become a national. Hashi v SSHD [2016] EWCA Civ 1136; Pham v UK ([2015] UKSC 19, available at: https://www.supremecourt.uk/cases/docs/uksc-2013-0150-judgment.pdf. 69 UNHCR, ‘Guidelines on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness’, (May 2020), HCR/GS/20/05, available at: https://www.refworld.org/docid/5ec5640c4.html. 70 C3, C4, C7 v. SSHD (appeals nos. SC/167/2020; SC/168/2020; SC/171/2020). 71 R (Begum) v. Special Immigration Appeals Commission and Secretary of State for the Home Department [2021] UKSC 7 [94]. 66 11