The Supreme Court unanimously dismissed the appeal regarding the respondent’s order to deprive the appellant of British Nationality on the grounds that it would be conducive to the public good under the British Nationality Act 1981, s 40(2). The central issue for the Court to consider was whether the respondent was precluded from making the order because to do so would render the appellant stateless. The appellant argued that he would be stateless because he had lost his Vietnamese citizenship. At a preliminary hearing SIAC allowed the appeal on the basis that the appellant would not have been considered to be a Vietnamese national by the Vietnamese executives on 22 Dec 2011. The Court of Appeal allowed the Secretary of State’s appeal of this decision and held that the appellant was a Vietnamese national on the relevant date under the text of Vietnamese laws.
Giving the leading judgment Lord Carnwath reasoned that reference had to be made to the government’s practice as well as the text of the nationality law of the state in question. He stated that there was no evidence of a decision or practice of the Vietnam government which treated the appellant as a non-national “by operation of its law”; nor was there evidence of a decision that was effective at the date of the Home Secretary’s decision of 22 Dec 2011.
In regards to the ground that the respondent’s decision was disproportionate under EU law, the CJEU judgment in Rottman did not state explicitly that a Member State’s decision as to the acquisition or loss of national citizenship was outside the scope of EU law. Lord Carnwath reasoned that the issue needed to be considered by the domestic courts before it would be appropriate to consider a reference to the CJEU. However, before that stage it is important that the tribunal of fact, SIAC, should first identify the respects in which a decision on these legal issues might be necessary for disposal of the case, including how the EU requirement of proportionality would differ in practice in the present case from proportionality under the ECHR. The court did however indicate that it was far from clear that EU proportionality would produce a different result to domestic public law.
Hugh Southey QC was involved in this case.