Case Watch: UK Supreme Court Struggles with Pham Statelessness Conundrum

This week’s UK Supreme Court hearing of the appeal by Pham Minh Quang (previously identified in proceedings as B2), heard important arguments about state decisions on citizenship and European Union law. Throughout the hearing, the seven British judges struggled with applying the UN Statelessness Convention concept of "a person who is not considered as a national by any state under the operation of its law" to states which disregard the rule of law and legal procedure.

We have previously explained the background to this case on deprivation of British citizenship. As the hearing began, the appellant’s lawyers accepted that Pham should not remain anonymous, no doubt because of information already in the public domain. Over the next one-and-a-half-days, the court looked into the facts of the case and debated several key issues.

Before the UK Government stripped Pham of citizenship, British diplomats had begun negotiating with the Vietnamese government about his possible deportation there. The UK did not give Vietnam Pham’s name or personal details until he was no longer a British citizen. This Vietnamese-British exchange has never been disclosed in full, even to Pham; nor have the UK reasons for not telling Vietnam about Pham until he had lost his British citizenship. Instead, that evidence was given to the Special Immigration Appeals Commission (SIAC) at secret hearings in his absence. (This sort of secrecy is usually reserved for evidence obtained by informers and surveillance.) Whatever was said in secret, it made SIAC decide that Vietnam did not consider Pham, who left the country at the age of 5, to be its citizen.

The Court of Appeal did not disagree, but decided that an unlawful decision did not mean a person was no longer a citizen under the 1954 Statelessness Convention. The Justice Initiative’s written submissions attacked this position, pointing out that statelessness most often arises where governments do not follow their own law. We referred to the international jurisprudence that unlawful government decisions can make people stateless.

At the Supreme Court hearing, the UK government did not defend the Court of Appeal’s reasoning, but only the result. Their lawyer accepted that a denial of citizenship decision which followed a flawed procedure or interpretation of the law would generally be authoritative, and so trigger the statelessness protection of international law. The UK government argued that the Vietnamese decision about Pham was not a flawed exercise of a legal power, but had been taken outside the law, ‘without the purported exercise of any identifiable power’.

The UK said that such an extreme case does not count for statelessness purposes. The UK did not argue that ‘operation of the law’ means ‘proper operation of the law’. This narrowing of the UK position seems welcome, since states often deny citizenship by unlawful use of legal powers. But it left unclear how this should be applied to Pham’s case, given that Vietnamese law effectively gives government the final decision-making power on citizenship.

The Supreme Court was also concerned at the retrospective character of the Vietnamese government decision. What could that show about his Vietnamese nationality status before that decision was taken, in particular, at the date the UK took away his British citizenship?  Pham’s lawyers argued that, just as a court decision can clarify an earlier status, so here the Vietnamese government decision clarified that Pham had lost his Vietnamese citizenship at some earlier date. The UK government suggested that the decision was, effectively, a deprivation decision. If so, since it was made after the British decision, it was Vietnam which made Pham stateless, not the UK. Of course, the UK government could have asked about Mr Pham’s Vietnamese citizenship status before the British decision to take away his nationality, but chose not to do so.

All these issues were made more complicated by the secrecy around the Vietnamese-British Government exchange, which prevented clear information about the purported basis for Vietnam’s decision.

The appeal attracted media and public attention to the issue of statelessness, with BBC coverage that included a webpage in both English and Vietnamese explaining “Who, what, why: What does it mean to be stateless?” that referred to the Rohingya of Burma, Dominicans of Haitian origin and UNHCR’s campaign to end statelessness.

The Court also debated  important issues of EU law and is considering referring questions to the Court of Justice of the European Union.

Judgment was reserved until a later date.  

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