MK (A Child By Her Litigation Friend CAE), R (On the Application O... 8 of 12 http://www.bailii.org/ew/cases/EWHC/Admin/2017/1365.html stateless person in article 1(1) of the 1954 Convention. Para 43 of his guidelines, entitled "Temporal Issues", has been incorporated, word for word, into the Home Office guidance on "Applications for leave to remain as a stateless person" dated 1 May 2013, referred to at para 13 above. The guidance provides: "3.4 ... An individual's nationality is to be assessed as at the time of determination of eligibility under the 1954 Convention. It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making an Article 1(1) determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a national for the purposes of Article 1(1) of the 1954 Convention. Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition." The Secretary of State's own guidance eloquently exposes the fallacy behind her appeal." 28. In Pham the same legislation was under consideration. It was argued (amongst other things) on the appellant's behalf that although, at the date of the order in his case, he might have been entitled by Vietnamese law to be regarded as a national of Vietnam, there was evidence to suggest that the Vietnamese authorities might, as a matter of practice or perhaps even of disregard of the rule of law, not be prepared to recognise the appellant's status as a national. The evidence, however, was of later date, even if it was to be seen as reflecting what the authorities' position would have been at the date of the order. 29. The position in relation to s 40(4) was put in this way by Lord Sumption JSC, with whom, of a seven-member Court, Lord Neuberger, Lady Hale and Lord Wilson expressly agreed: "101. I agree that this appeal should be dismissed. I am not convinced that practice can stand for law in article 1(1) of the 1954 Convention, nor that any relevant practice was proved in this case. But I think that the answer to this appeal is simpler than that. Under section 40(4) of the British Nationality Act the Home Secretary was precluded from withdrawing Mr Pham's British nationality only if he would thereby have been rendered stateless. That depends on whether he had Vietnamese nationality on 22 December 2011 when his British nationality was withdrawn. Since Mr Pham unquestionably had Vietnamese citizenship at the time of his birth in Vietnam, he must still have had it on 22 December 2011 unless something had happened to take it away. The government of Vietnam was entitled to withdraw his nationality, but no one suggests that they had done so, at any rate by the relevant date. In those circumstances, Mr Pham's case on appeal depends upon the proposition that the statements of Vietnamese officials to British diplomats after 22 December 2011 (when the British government was hoping to deport him to Vietnam) were tantamount to a legally definitive declaration about his status on that date, with substantially the same effect as if it had been a declaration pronounced by a court of law. There is, however, a world of difference between saying that no court of law was in a position to control the Vietnamese government's statements or acts, and saying that the Vietnamese government was a court of law or was 20/05/2021, 15:49