MK (A Child By Her Litigation Friend CAE), R (On the Application O... 7 of 12 http://www.bailii.org/ew/cases/EWHC/Admin/2017/1365.html "120. I am prepared to assume that if an application were made for the restoration of the appellant's Iraqi nationality it would be bound to succeed, though the point is by no means free from doubt. …. 121. I would reject the Secretary of State's argument for the straightforward reason that section 40(4) requires the Secretary of State (and, on appeal, the court) to consider the effect of the order made under section 40(2): would the order make the person stateless? If Iraqi nationality was not restored to the appellant automatically under the Iraqi legislation considered above, he was not an Iraqi national at the time of the order: his only nationality at that time was British nationality. The effect of the order would therefore be to make him stateless. That would be the effect of the order irrespective of whether he could previously have acquired another nationality had he chosen to do so, or whether he could do so in the future." 25. Stanley Burnton LJ and Gross LJ agreed with Richards LJ's analysis and the result. All three members of the Court noted, apparently with regret, that this was the effect of s 40(4) and that the provisions of that subsection went further than was required by the United Kingdom's obligations under the 1961 Convention. That, though, was because in circumstances such as the present the Convention would have permitted an order that made its subject stateless, not because of some notion of potential nationality to be found in the Convention. (Their Lordships' particular concern has been addressed by the insertion of s 40(4A) by s 66 of the Immigration Act 2014.) 26. The Secretary of State appealed to the Supreme Court. In his judgment, with which the other members of the Court agreed, Lord Wilson JSC reviewed the developing international concept of statelessness and the United Kingdom's reaction to it by legislation at [12]-[22] and went on to consider whether it was appropriate to apply the factual premise set out above. At [30] he rejected the Secretary of State's submission that anything depended on the need for the Secretary of State to be 'satisfied' that the order would make a person stateless. The primary question was the fact of statelessness. He then considered the Secretary of State's argument that a purposive interpretation of the statute required analysis of the 'active' or 'real' cause of any statelessness. "32. I reject this argument. Section 40(4) does not permit, still less require, analysis of the relative potency of causative factors. In principle, at any rate, the inquiry is a straightforward exercise both for the Secretary of State and on appeal: it is whether the person holds another nationality at the date of the order. Even that inquiry may prove complex, as the history of these proceedings demonstrates. But a facility for the Secretary of State to make an alternative assertion that, albeit not holding another nationality at the date of the order, the person could, with whatever degree of ease and speed, re-acquire another nationality would mire the application of the subsection in deeper complexity. In order to make his argument less unpalatable to its audience, Mr Swift, as already noted, limited it to the re-acquisition of a former nationality, as opposed to the acquisition of a fresh nationality. But, with respect, the limitation is illogical; if valid, his argument would need to extend to the acquisition of a fresh nationality. Yet a person might have good reason for not wishing to acquire a nationality available to him (or possibly even to re-acquire a nationality previously held by him)." 27. At [33] he pointed out that s 12 of the Act (renunciation of citizenship) does indeed contain a notion that a person may 'have or acquire some citizenship or nationality other than British citizenship' and that if Parliament had intended to make a similar addition to s 40(4) it could readily have done so. The final paragraph of the judgment is the following: "34. On 20 February 2012 the United Nations High Commissioner for Refugees issued "Guidelines on Statelessness No 1", HCR/GS/12/01, in which he addressed some of the effects of the authoritative definition of a 20/05/2021, 15:49