Mr Al-Jedda, Deprivation of Citizenship, and International Law Guy S. Goodwin-Gill1 Revised draft of a paper presented at a Seminar at Middlesex University on 14 February 2014 1. The Background in Brief Mr Al-Jedda was a refugee from Iraq. He was granted asylum in the United Kingdom and duly acquired British citizenship by naturalisation; as a consequence, he lost his Iraqi citizenship by operation of law. During the course of the war with Iraq, he was detained there and held by the British military on security grounds. He was released in December 2006, shortly after the Secretary of State made an order purporting to deprive him of his British citizenship. He appealed to the Special Immigration Appeals Commission in 2008, where argument focused on, among other issues, whether Occupying Powers are competent to legislate on nationality, and on the meaning and scope of various legal instruments, including the Transitional Administrative Law (TAL) decreed by the Coalition Provisional Authority and the 2006 Iraqi Nationality Law. SIAC rejected his appeal, finding that he was an Iraqi citizen. This was overturned by the Court of Appeal, which referred the matter back to SIAC. SIAC again found against Mr Al-Jedda, but was again overruled by the Court of Appeal which held that he had automatically lost Iraqi citizenship on acquiring British citizenship, and that he had not automatically regained it either under the TAL or the 2006 Law. Consequently, he could not lawfully be deprived of his British citizenship, as this would render him stateless. The Secretary of State appealed to the Supreme Court, arguing that under section 40 of the British Nationality Act, she could be ‘satisfied’ that the making of a deprivation order would not render the individual concerned stateless if there was another nationality ‘option’, for example, if that person ‘could’ apply elsewhere, and ‘would be’ granted citizenship. The Supreme Court dismissed the appeal in October 2013, finding the argument ‘unrealistic’. One simple question was involved: Did the individual possess another nationality at the date of deprivation, or not? The alternative argument was, ‘a gloss as substantial as it was unwarranted...’2 1 Senior Research Fellow, All Souls College, Oxford; Professor of International Refugee Law, University of Oxford; Barrister, Blackstone Chambers. 2 [2013] UKSC 62. 2 2. The UK’s role in ‘combatting’ statelessness The United Kingdom has long been active in promoting the reduction and elimination of statelessness. At the first (1959) conference preceding the conclusion of the 1961 Convention on the Reduction of Statelessness, Mr Ross has set out the UK’s position: ‘To deprive persons of their nationality so as to render them stateless should certainly be an exceptional step and the freedom of States to deprive persons of their nationality should be severely circumscribed by means of appropriate clauses in the convention...’ Eleventh Meeting of the Committee of the Whole, 8 April 1959: UN doc. A/CONF.9/C.1/SR.11, 7-8. At the Fourteenth Meeting on 10 April 1959, Mr Harvey said that the UK delegation, ‘would have preferred to exclude altogether the possibility of deprivation of nationality in the case of natural-born nationals...’: UN doc. A/CONF.9/C.1/SR.14, 3. At the Fifteenth Meeting on 11 April 1959, Mr Ross added that the UK would be willing to consider, ‘a general paragraph stipulating that a contracting party, at the time of ratifying the convention, might make a reservation in respect of deprivation of citizenship relating to any existing provision of its law. However, the United Kingdom delegation believed that fewer cases of statelessness would arise if a short list of grounds on which a national could be deprived of his nationality were included in the convention’: UN doc. A/CONF.9/C.1/SR.15, 6. The Conference reconvened two years later. In observations submitted on 18 May 1961, the UK indicated that, ‘In the interests of limiting the permissible grounds to the greatest extent to which agreement is practicable, Her Majesty’s Government would be prepared to accept a provision which included only one other ground – disloyalty or treachery in the case of a naturalised citizen’: UN doc. A/CONF.9/10, 9 June 1961. Article 8 in its final form owed much to the UK’s initiatives. Mr Ross, speaking at the Sixteenth Plenary Meeting on 16 August 1961, noted that instances of deprivation were rare, but nonetheless, ‘the Conference still had the duty of doing its upmost to eliminate that minor cause of statelessness as well...’ The UK’s compromise text, ‘admitted no grounds for deprivation other than those already specified in the current law of the Contracting 3 States... [I]t attempted to overcome... objections... by restricting the causes for deprivation of nationality to certain well-defined categories’: UN doc. A/CONF.9/SR.16, 11 October 1961, 2, 3-4. A working group on Article 8 appointed by the Conference, with Mr Harvey of the United Kingdom as rapporteur, agreed a text (UN doc. A/CONF.9/L.86, 23 August 1961). Apart from minor drafting changes and the deletion of one paragraph, this draft was that adopted by the Conference in final form. Mr Harvey commented at the Twentieth Plenary Meeting on 23 August 1961: ‘... There had been considerable discussion as to whether or not separate grounds of deprivation or nationality should be applied to natural-born and to naturalized persons. The feeling of the Group had been that the distinction was not a happy one, and it had concluded that it was unnecessary to grant extended grounds for deprivation in the case of naturalized persons. Hence the grounds mentioned applied to both types of cases. The effect of the article was to “freeze” the grounds of deprivation at the date on which the State acceded to the Convention, and to limit them to certain specified types...’: UN doc. A/CONF.9/SR.20, 11 October 1961, 2-3. As finally agreed, Article 8 of the 1961 Convention established the basic principle that there should be no deprivation of nationality if it resulted in statelessness, but with a number limited exceptions. ‘Article 8 1. A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless. 2. Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of the nationality of a Contracting State: (a) In the circumstances in which, under paragraphs 4 and 5 of Article 7, it is permissible that a person should lose his nationality; (b) Where the nationality has been obtained by misrepresentation or fraud. 3. Notwithstanding the provisions of paragraph 1 of this article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: 4 (a) That, inconsistently with his duty of loyalty to the Contracting State, the person: (i) Has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) Has conducted himself in a manner seriously prejudicial to the vital interests of the State; (b) That the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State. 4. A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or 3 of this article except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body.’ The United Kingdom’s made the following declaration under article 8(3): ‘... in accordance with paragraph 3 (a) of Article 8 of the Convention, notwithstanding the provisions of paragraph 1 of Article 8, the United Kingdom retains the right to deprive a naturalised person of his nationality on the following grounds, being grounds existing in United Kingdom law at the present time: that, inconsistently with his duty of loyalty to Her Britannic Majesty, the person (i) Has, in disregard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.’ As the UK representative, Mr Harvey, noted during negotiations, ‘The effect of the article was to “freeze” the grounds of deprivation at the date on which the State acceded to the Convention, and to limit them to certain specified types.’ In 1966, when the United Kingdom ratified the 1961 Convention on the Reduction of Statelessness, deprivation of citizenship was governed by section 20 of the British 5 Nationality Act 1948. This provided for deprivation in the case of fraud (section 20(2))3, and also that, ‘(3) ... the Secretary of State may by order deprive any citizen of the United Kingdom and Colonies who is a naturalised person of that citizenship if he is satisfied that that citizen– (a) has shown himself by act or speech to be disloyal or disaffected towards His Majesty ; or (b) has, during any war in which His Majesty was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war ; or (c) has within five years after becoming naturalised been sentenced in any country to imprisonment for a term of not less than twelve months..