Pham v Secretary of State for the Home Department

Parties (including notable third parties)

Pham (Appellant); Secretary of State for the Home Department (Respondent); The Open Society Justice Initiative (Third Party Intervener)

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Summary of Facts

The main issue in this appeal was whether the Secretary of State was precluded under the British Nationality Act 1981 (‘BNA’) from depriving the Appellant of British citizenship because to do so would render him stateless, within the meaning of Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (‘1954 Convention’).

The Appellant was born in Vietnam in 1983 and was a Vietnamese national. In 1989, the Appellant and his family moved to the UK, claimed asylum and were granted a permanent right to reside (‘indefinite leave to remain’). In 1995 they acquired British citizenship. Although none of them had ever had a Vietnamese passport, they had not taken any steps to renounce their Vietnamese nationality.

The Appellant was educated in the UK and at 21 years old, he converted to Islam. He was in Yemen between 2010 and 2011, where, according to the security services but denied by him, he allegedly received terrorist training from Al Qaeda.

On 22 December 2011, the Secretary of State notified the Appellant of her decision to deprive him of British citizenship under Section 40(2) BNA, being satisfied that this would be ‘conducive to the public good’. She considered that the order would not make him stateless (contrary to Section 40(4) BNA) because he would retain his Vietnamese citizenship. The order to deprive him of nationality was made later that day and served on the Appellant, followed by an order to deport him to Vietnam. Thereafter, the Vietnamese government declined to accept the Appellant as a Vietnamese citizen.

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Legal Arguments

Appeal Proceedings

In 2012, the Appellant appealed to the Special Immigration Appeals Commission (‘SIAC’) against the decision to deprive him of British citizenship on the grounds that (i) he was married to a British citizen with a child, (ii) he was of good character and not linked to terrorism, (iii) the decision was incompatible with the European Convention on Human Rights (‘ECHR’), and (iv) the deprivation was prohibited under section 40(4) BNA because it would render him stateless. The latter aspect was on the grounds that Vietnamese law did not allow dual nationality. While SIAC initially decided the deprivation would render him stateless, this finding was reversed by the Court of Appeal.

Third party interventions

The Open Society Justice Initiative intervened by way of written submission. Their submission was in support of the Appellant and used the 1954 Convention and its interpretation in their argument.

Outcome

The Supreme Court ruled that the decision by the UK Home Secretary to strip the Appellant of British citizenship did not make him stateless, because the Appellant still held Vietnamese citizenship ‘under the operation of its law’ (Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons) at the time that decision was made.

The Supreme Court first analysed the interpretation of the term ‘stateless’ according to the 1954 Convention, referring to the French and Spanish versions of the convention, Article 31(1) of the 1969 Vienna Convention on the Law of Treaties), the Prato Report, a meeting of experts convened by UNHCR in Tunisia in 2013, and the UNHCR Handbook on Protection of Stateless Persons from 2014 [paragraphs 20-30]. While the court took into account UNHCR Guidance, the judgment noted that some of the UNHCR guidance was not easy to reconcile with the wording of the article itself (paragraph 28).

The Supreme Court considered:

(i) Whether determining if someone is considered a national of a State under the operation of its law should be decided by reference to the text of the State’s nationality legislation or include the practice of the government to make decisions which cannot be challenged effectively in the courts.

(ii) Whether deprivation of British citizenship falls under the scope of EU law and the principle of proportionality when it leads to losing EU citizenship; and, if so, whether it would be disproportionate and unlawful under EU law to deprive the Appellant of British citizenship for the sole reason that the Vietnamese government does not consider him to be a Vietnamese national under the operation of Vietnamese law, given the Appellant has no other nationality.

Issue (i) – Interpretation of the 1954 Convention

The Court considered that SIAC’s reasoning was not supported by UNHCR guidance. It considered that there was nothing in the evidence suggesting that the Vietnamese government had taken any action to individually deprive the Appellant of citizenship, nor that it had adopted a position or practice against a particular community that the Appellant was a part of, and that it could only be accepted that the Vietnamese government had declined to accept that he was or is a Vietnamese national.

The Court accepted that the determination of statelessness is decided by reference to the text of the nationality legislation as well as the government’s practice, even if not subject to effective challenge in the court. However, in the Court’s view, no action had been taken by the Vietnamese government to deprive him of nationality, and there was no evidence of a decision or practice which treated the Appellant as a non-national, including no ministerial decree or practice which could be treated as equivalent to ‘law’ even in the broadest sense used by UNHCR.

The judgment further noted that it is ‘unnecessary on this appeal to express any concluded view on whether or how far practice may supersede law in relation to the concept of statelessness under article 1(1)’ (paragraph 66), and that ‘SIAC was also wrong to consider that the Vietnamese Government’s subsequent attitude could in some way feed back in time, to determine whether the Appellant had Vietnamese citizenship on 22 December 2011’ (paragraphs 67).

The judgment added that practice cannot stand for law in Article 1(1) of the 1954 Convention. In the Court’s view, the Appellant was born with Vietnamese citizenship and no action was taken to withdraw it, and the later actions of Vietnamese officials cannot be an indication of Mr Pham’s nationality status in 2011 when the Vietnamese government had not taken any position either way. ‘It follows that if -anyone has rendered Mr Pham stateless, it is not the Home Secretary on 22 December 2011 but the Vietnamese government thereafter’ (paragraph 101).

Issue (ii) – Application of European law

The Court considered that EU law aspects were not within the scope of the appeal, as they were not included in the preliminary issue defined by SIAC in its 2012 order, and it was not clear how they would be different that a proportionality assessment within the scope of the European Convention on Human Rights (‘ECHR’) and domestic law principles which had already been assessed by SIAC. The matter should be remitted to SIAC to address the issue.

The Court observed that the intensity of review is context-dependent. Given the fundamental nature of citizenship and that deprivation of citizenship is a ‘radical step’ (especially when the person does not have a real attachment to the other country of nationality), a ‘strict standard of judicial review’ would apply, and it was unlikely the outcome would differ materially whether the test was framed under domestic principles, European Union law or ECHR (paragraphs 97-98).

The Supreme Court dismissed the appeal and confirmed the order of the Court of Appeal remitting the case to SIAC.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	The 1954 Convention relating to the Status of Stateless Persons	Art 1(1)
International	The 1961 Convention on the Reduction of Statelessness	Art 11
Domestic	The British Nationality Act 1981	40(2), 40(4)

UNHCR Statelessness Guidelines cited

UNHCR Handbook on Protection of Stateless Persons

Key paragraphs of the Guidelines referred to

UNHCR Handbook on Protection of Stateless Persons, paragraphs 22-24, 47-48.

Court's application of Guidelines

The judgment stated that the word ‘operation’ should not be interpreted to justify a departure from the letter of the law, and interpreted paras 15-17 of the 2012 UNHCR Guidelines on Statelessness No. 2 (equivalent to paragraphs 22-24 of the Handbook) in the following way: ‘[T]hat passage, as I read it, is suggesting, not that the law of the country is irrelevant, but rather that, having regard to the purpose of the article, the term “law” should be interpreted broadly as encompassing other forms of quasi-legal process, such as ministerial decrees and “customary practice”’ (paragraph 25). The Court specifically criticised a paraphrase in the UK Secretary of State's own 2013 guidance for implying such a departure. According to the Supreme Court, that the contrast is brought out in a later passage of the UNHCR Handbook (paragraphs  47-48), where it states that when authorities treat an individual in a manger inconsistent with an appeal decision this means that their rights are not being respected rather than the individual not being a national, which is different than where there is a widespread practice of discriminating against a particular group.

The judgment further notes: ‘In the first case, where a finding of nationality in respect of an individual has been made by a competent body under the relevant law, his status under the article is not affected by the fact that the finding may be ignored by the state authorities. The position is different, as in the second case, where there is a “practice” of discriminating against a particular group, regardless of the strict legal position. Such a practice, it seems, should be treated as equivalent to the “operation of law” under the article […]. I do not with respect find some of the UNHCR guidance easy to reconcile with the wording of the article itself, especially when regard is had to the equivalent expressions in the French or Spanish versions. The Spanish version in particular seems to indicate, perhaps even more clearly than the English or French version, the need for “conformity” with a law of some kind. Furthermore, the reference to “its” law seems to imply that the starting point, at least, is the relevant national law where one exists. […] It is difficult to see how a process of consideration by the state which pays no regard at all to this legal framework could be said to be “by operation” of “its” law.’ As the authority of UNHCR guidance had not been challenged by the parties, the court decided to take the guidance into account ‘without necessarily expressing a concluded view on its accuracy as a legal interpretation of the article’ (paragraphs 27-29). Lord Carnwath, concurring, added that the guidance appeared to contemplate states acting contrary to any legitimate interpretation of their own law, which did ‘not fit easily’ with the ECHR’s text (paragraph 65).

The judgment also noted that ‘the terms in which the UNHCR […] have given guidance about the meaning of these provisions do not fit easily with any of the authentic versions. Customary practice in the interpretation and application of the law may in some circumstances shape the content of the law itself. The guidance appears to go further, and to contemplate situations in which a state acts contrary to any conceivably legitimate interpretation of the law’ (paragraph 65).

Available commentary

Saba Movahed Nia, ‘The problem of defining citizenship in domestic and international law: balancing security with international law’ (2025) 30(1) Coventry Law Journal 37

• The author explains how Pham highlights the UK’s strict interpretation of the 1954 convention. When rendering a person stateless, the UK only has consideration for those who become de jure stateless, it has much less sympathy where a decision will make a person de facto stateless.
• The article describes that decisions like Pham form a legal gap where de facto stateless persons are being offered no protection from the 1954 Convention.

Rachel Pougnet, ‘Citizenship deprivation in the courts: unveiling states’ constitutional structures’ (2023) 19(3) European Constitutional Law Review 415

• The author arrives at conclusions surrounding British identity and how the decision of Pham had a role revealing the view of the British Government regarding identity.
• Pougnet writes, ‘Pham is a reminder that despite some conceptual clarification as to the rights held by British citizens since the 1990s, British citizenship is still subjecthood’.
• She argues that the decision is one that highlights a vertical relationship between the sovereign and the individual and not a horizontal relationship of equality between citizens and their representatives.

Joshua Kerr, ‘ “Take heed from thou doest: for this man is Roman” - the arbitrary use of deprivation of citizenship as a public relations management tool’(2019) 33(4) Journal of Immigration, Asylum and Nationality Law 332.

• The author discusses how deprivation of nationality in the UK is being utilised by politicians to garner support and how the policy is based on the public’s emotional reaction rather than coherent principled ideology-based policies.
• The author uses Pham to reach this conclusion as the Court’s decision is one that supports the SSHD utilising their discretion to push forward a political agenda through citizenship deprivation.

Sangeetha Pillai and George Williams, ‘Twenty-first century banishment: citizenship stripping in common law nations’(2017) 66(3) International and Comparative Law Quarterly 521

• The article discusses whether deprivation of citizenship can be used as a counterterrorism tool.
• In doing this, the authors utilise Pham to demonstrate that deprivation of nationality may not be effective as a counterterrorism tool where the case involves possibly making a person stateless as this adds complications.

Rayner Thwaites, ‘Proof of foreign nationality and citizenship deprivation: Pham and competing approaches to proof in the British courts’(2022) 85(6) Modern Law Review 1301

• The article suggests that the government do not regard foreign law enough in deciding whether someone will be rendered stateless due to deprivation of citizenship.
• This leads the author to conclude that, ‘[T]he approach of the British courts to proof of foreign nationality in deprivation cases remains unsettled and uncertain”.