Tuesday 18 November 2014

Rottmann Rules UK? Can British citizenship be taken away without regard to EU law?


Simon Cox*

Today the UK Supreme Court began grappling with the meaning and effect of the Rottmann judgment of the CJEU, which concerns the constraints placed by EU law on the loss of national citizenship. Counsel for the British Home Secretary argued that an interpretation of that judgment as applying beyond cross-border cases would take the CJEU beyond its competence. The Court questioned whether it could decide the application of Rottmann without first making a reference to the CJEU: an idea which the Government did not seriously oppose.

The case before the Court was brought by Vietnamese-born Mr Pham, known as B2 until he dropped his request for anonymity today. Acting under the British Nationality Act 1981 (BNA), the Home Secretary had deprived him of his British citizenship on national security grounds. Pham argued he had ceased to be a Vietnamese citizen. The Special Immigration Appeal Commission agreed and allowed the appeal under BNA provision preventing statelessness. The Court of Appeal disagreed, holding that Vietnam had not complied with it national law, and so Pham remained its citizen for purposes of the 1954 UN Statelessness Convention. The interpretation of that Convention is a key issue in the appeal.

EU law is also at stake. Aside from statelessness, Pham complained of his loss of EU citizenship under Article 20 TFEU. Pham relied on C-135/08 Rottmann to argue that this result meant the British deprivation decision could only be taken with due regard to EU law, in particular, proportionality.

That argument had been rejected by the Court of Appeal in a different case, R (G1) v Home Secretary [2013] QB 1008. Lord Justice Laws interpreted Rottmann to apply only to cross-border cases. Even more fundamentally, that court queried whether UK law would recognise the CJEU as having authority to alter the operation of the BNA.

G1 was refused permission to appeal from the Court of Appeal by the Supreme Court. Later, the Supreme Court gave Pham permission, including on the EU law point.

At today’s hearing, several judges queried with Pham’s barrister, Hugh Southey QC, whether the court needed to decide whether EU law applies. Would EU law proportionality give greater rights than British law proportionality?, Lord Reed wondered. British citizenship is akin to a fundamental right, so proportionality is required suggested Lord Neuberger. Lord Carnwath asked whether the BNA anyway required a decision to be proportional. Lord Sumption suggested that since a decision to deprive a person of British citizenship definitely does deprive them of EU citizenship, British public law may require the decision on the former to respect the legal approach to the latter.

Tim Eicke QC, counsel for the Home Secretary, accepted that the deprivation decision could only be upheld if it met the proportionality requirements of Article 8 of the European Convention of Human Rights. He argued that Rottmann proportionality would be no greater than those requirements. He did however accept that EU law may require greater disclosure of otherwise secret evidence than the European Convention on Human Rights (ECHR) would require. Pressed on ‘substantive’ proportionality, he conceded UK public law would be less protective than EU law.

Lord Reed and Lady Hale queried whether Article 8 ECHR family life rights would be as extensive as EU law rights of free movement. Mr Eicke argued that the Strasbourg judgment in Karassev v Finland, 12 January 1999, extends the ECHR’s reach to consideration of whether the loss of nationality breaches the Article 8 right to private life.

The court referred to Lord Justice Laws argument in G2 that British citizenship does not fall within the competence of EU law at all. Mr Southey replied that the question is one of interpretation of the EU Treaties.

Lord Mance quizzed Tim Eicke QC, counsel for the Home Secretary, about the effect of the adoption of subsequent EU treaties re-enacting old treaties.

The Open Society Justice Initiative had been given permission to intervene in the Pham case, and made a different EU law point in their written case. Relying on EU instruments conferring advantages on stateless persons, like Regulation 883/2004 (which regulates the coordination of social security for persons moving between Member States), they argued that statelessness is an autonomous concept of EU law. Pham’s argument about the meaning of statelessness could not be rejected unless the UK Court had first taken into account the EU law position. Since the CJEU had not yet interpreted the notion of statelessness, the Supreme Court would have to make a reference, they argued, unless they agreed with Pham under British law read alone.

The UK Government argued that, even if the case fell within the scope of EU law, the notion of statelessness was not an autonomous EU law concept, because it arises here only under the BNA, a British law.

While the hearing continues tomorrow, the Government’s submissions on EU law were largely made today.

Updated: hearing on Wednesday 19 November

Pham – Day 2 – Reference to the CJEU on the cards

The Pham hearing concluded today in Court 1 of the Supreme Court with a morning of oral argument, first from Home Office barrister Robin Tam QC, then a reply by Hugh Southey QC for Pham.

The seven-judge panel’s comments showed them weighing up two alternatives. To ask the CJEU what constraints, if any, EU law places on the procedure and substance of depriving Pham of his British citizenship? Or to dismiss the appeal without ruling on EU law, meaning the case would return to the fact-finding body – the Special Immigration Appeals Commission (SIAC).  The second option would see SIAC making findings on the alternative premises that EU law does, and does not, apply. If SIAC found that the difference in law would cause a difference in result in Pham’s case, a reference could then be made to the CJEU, by SIAC or on a further appeal.

The first option would be slow, pointed out the court. No-one thought the second option would be straightforward. Much of the discussion concerned Mr Pham’s right to know the British security service case that he is a threat to national security. Under the SIAC procedure, this is a crucial tool for appellants. Security service reluctance to disclose their arguments and evidence mean they may choose to abandon claims of terrorism rather than tell the appellant what they have been saying about him in secret. So a greater right to disclosure can mean the case is abandoned altogether.

The extent of legal duties to disclose has been closely fought in challenges to UK Government decisions. UK laws denying any right to disclosure were first weakened by the Court of Human Rights in A & Others v UK, holding that detention without trial could not be used if the gist or essence of the case were not disclosed to the detainee. In AF No 3, the UK’s highest court followed this reasoning in ‘control order’ cases. The CJEU addressed this in C-300/11 ZZ, ruling that an EU citizen facing exclusion from another EU state has a right to know the gist. However, in I.R. v UK Strasbourg rejected arguments that ECHR Article 8 requires the same disclosure.

Could Pham have more under the ZZ approach to EU law than under UK law, asked Lord Mance. Mr Tam conceded that he could: AF No 3 does not apply to citizen deprivation appeals. But even assuming EU law does apply to a citizen deprivation appeal, the UK Government did not accept that EU law would require a ZZ approach. (Rottmann speaks only of states ‘having regard to EU law’.)

All this showed SIAC would likely have a hard job to do without clarification of the basic question - does EU law apply – and, indeed, the further question – what does EU law require. Unsurprisingly, Mr Southey vigorously opposed the second option. A number of cases were left undecided – perhaps undecidable – by the current uncertainty, he suggested.

On Rottmann, Pham’s legal team argued that the language of the judgment showed that the competence invoked was citizenship (article 20 TFEU), not free movement (article 21), and pointed to the Ruiz Zambrano ruling. Mr Southey then addressed the Government’s fall back argument that the CJEU would overreach EU competence under Art 5 TEU by requiring EU law to be applied to deprivation of citizenship (except in free movement cases). He argued that the UK Parliament had made the CJEU the sole arbiter of EU competence. Section 3 of the European Communities Act 1972 requires the UK courts to follow rulings of the CJEU on EU law: EU competence is a question of interpretation of the EU Treaties. If the UK Government did not like a ruling of the CJEU, it must either persuade the other Member States to renegotiate the Treaties, or amend the European Communities Act.

Lord Mance suggested the Supreme Court could ask the CJEU whether it meant to go as far as it appeared to have done in Rottmann. Mr Southey accepted it could.

The Supreme Court reserved judgment, to be given at a later date.
*Simon Cox is the Migration Lawyer of the Open Society Justice Initiative and part of their legal team in their intervention in Pham


Barnard & Peers: chapter 13

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