Brexit means Brexit for UK nationals and EU citizenship: analysis of an Advocate-General’s opinion

 

Professor Steve Peers, University of Essex

Did British citizens retain their EU citizenship after Brexit? The EU and the UK government assume not, but some Brits have begged to differ.

The issue has reached the EU courts in several ways. Three cases went directly to the EU General Court, challenging the EU Council’s decision to conclude the withdrawal agreement, on the grounds that the agreement (in the applicants’ view) wrongly removed their EU citizenship. Last August, the EU General Court rejected all these cases for lack of standing; the applicants have all appealed to the CJEU. (See my compilation of Brexit litigation for further details).

Two cases reached the CJEU via national courts sending questions about the interpretation of EU law and the validity of the decision to conclude the withdrawal agreement. This route does not raise standing problems. The first of these cases (Case C-673/20 EP) has led to an opinion of an Advocate-General of the CJEU yesterday – which argued that British nationals have lost their EU citizenship as a result of Brexit, and the decision concluding the withdrawal agreement was valid.  

Summary of the opinion

The opinion begins by quoting Article 9 TEU: “Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship” – and noting that Article 20(1) TFEU is nearly identical. It then summarises the specific issue in this case: the loss of local election voting rights of a UK citizen in France, due to her loss of the status of EU citizen (which entails such voting rights) as a consequence of Brexit. Interpreting these Articles in the context of the Treaties as a whole, the Advocate-General states that:

Article 9 TEU and Article 20(1) TFEU provide that Union citizens must be nationals of a Member State. Union citizenship is additional to, and does not replace, nationality conferred by the Member States. In that context, it is important to acknowledge that the Member States could have decided to pool their competences and to confer on the European Union the power to determine who is entitled to become a Union citizen. That explicit choice by the Member States not only renders the European Union powerless to create Union citizenship independently from nationality as conferred by the Member States, but also raises a constitutional barrier to such a power being implied under Union law. [para 22]

This is an answer to those who argue that the EU could confer EU citizenship as such on Brits, Russians or any other nationals of non-EU countries. It leads to his next point, dismissing the relevance of the previous CJEU judgments on the limits of the loss of EU citizenship which were referred to by the applicant (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here) on the grounds that they all concern the loss of EU citizenship via means of loss of nationality of a Member State.

By comparison, the UK’s withdrawal from the EU took place on the basis of Article 50 TEU, which had the consequence of the UK ceasing to be a Member State. Article 50(3) TEU states explicitly that ‘the Treaties shall cease to apply’ to a State that leaves the EU when a withdrawal agreement enters into force, or ‘failing that’ two years after its notification to leave (unless that time frame is extended by mutual agreement). The opinion interprets this to mean that:

…In consequence, the United Kingdom no longer resolved, inter alia, to establish a citizenship common to that of the nationals of EU Member States or to create an ever closer union among the peoples of Europe. Since the existence of Union citizenship depends upon the acquisition and possession of the nationality of a Member State, and the United Kingdom voluntarily abandoned that status in the manner prescribed by Union law, British nationals ceased to be Union citizens. [para 28]

He then examined – and dismissed – the specific arguments made by the applicant. First, she argued that she retained her EU citizenship despite the UK leaving the EU. In his view, since the EU ‘has freely determined that acquisition of citizenship of a Member State is a condition precedent for the conferral of Union citizenship’, her argument that links to a State ground a claim to that State’s nationality fail. Equally, in his view, her argument that her links with France prevent deprivation of her EU citizenship must fail, as she could always claim French nationality (and therefore EU citizenship): “[w]ithout her possession of the nationality of a Member State, France cannot recognise EP as a Union citizen.”

Although EU citizenship, according to case law, aims to integrate EU citizens into the society of the host State, this did not mean, in the Advocate-General’s view, that the history of such integration in an individual case prevented the loss of EU citizenship:

…In addition to the objection that EP, like all other British nationals, ceased to meet the essential precondition for the enjoyment of the status and benefits of Union citizenship, namely Member State nationality, as a direct consequence of the United Kingdom’s sovereign decision to withdraw from the European Union, it may further be observed that the integration of third-country nationals into the societies of the Member States is not among the goals furthered by Union citizenship. [para 34]

A brief reference in the Rottmann opinion to the independence of EU citizenship from Member State nationality was not relevant either, as that opinion also made it clear that nationality of a Member State was a condition to have the status of EU citizen: “far from supporting the proposition advanced by EP, point 23 of the Opinion of Advocate General Poiares Maduro in Rottmann entirely undermines it” [footnote omitted].

…It describes the rationale for Union citizenship being contingent upon holding the nationality of a Member State as the Member States’ mutual commitment to construct a new form of civic and political allegiance on a European scale. By its sovereign decision to leave the European Union, the United Kingdom signalled its clear determination to repudiate that commitment. In the context of that act by a sovereign State, an individual cannot seek to rely upon his or her British nationality to assert a claim either to Union citizenship or to its benefits. [para 37]

A technical argument about the scope of the transition period in the withdrawal agreement (discussed here) failed too: the opinion concludes that only some EU law continued to apply to Member States as regards UK nationals during that period, and this did not include voting rights in local elections.

The opinion then returns to the argument that the judgments in Rottmann, Tjebbes and Wiener Landesregierung – which require that the loss of EU citizenship via the loss of Member State nationality require an individual decision subject to proportionality, legitimate expectations, and the right to be heard – apply to Brexit. Here, the Advocate-General reiterates more fully that the earlier rulings do not apply by analogy to a State withdrawing from the EU:  

…The principle of proportionality requires that a competent authority balance conflicting rights and norms before taking a decision affecting an individual. The circumstances of this case require no balancing by the deciding authority that would take account of EP’s personal circumstances. As a direct result of the sovereign decision of the United Kingdom to withdraw from the European Union, a person in EP’s position lost the right to vote and to stand as a candidate in municipal elections in France, her Member State of residence. It is that sovereign decision, not that of a Member State or any authority thereof, that caused EP to lose the benefit of those rights. [para 42]

The applicant could not compare herself to a stateless person, as she remains a national of the UK:

…She can address any issue that she may have concerning her status or rights as a British national to the United Kingdom authorities. France or the European Union are incapable of playing any role in such a dispute. [para 43]

The same applied to her argument based on legitimate expectations:

…Any breach of legitimate expectations that EP may wish to ventilate concerning her status as a Union citizen is to be addressed to the United Kingdom, which has withdrawn from the European Union, and not to either the French authorities or to the European Union. [para 44]

And also to the argument that ‘the French authorities stripped her of the right to vote and to stand as a candidate in municipal elections, thereby depriving her of the right to participate in the democratic process’:

…Any deprivation of her right to participate in the democratic process as a British national arises exclusively as a consequence of United Kingdom law. [para 45]

Nor could she rely upon the principle of non-discrimination on grounds of nationality, in Article 18 TFEU, because although that principle applied to UK citizens during the transition period in general, the specific issue of voting rights was excluded from it by the withdrawal agreement, and non-EU citizens are in a different position than EU citizens. However, it remains to Member States, if they so choose, to allow non-EU citizens to vote in local elections.

Finally, in light of his analysis, the Advocate-General answers the specific questions referred by the national court to the effect that:

-          due to the UK’s decision to leave the EU and the withdrawal agreement, UK nationals are no longer EU citizens; any legal questions arising from this are a matter for the UK, outside the CJEU’s jurisdiction;

-          various Treaty articles and the withdrawal agreement do not preserve EU citizenship rights for UK nationals, because the UK has ceased to be a Member State and ‘the exercise of rights conferred by Union law does not furnish any legal basis upon which an individual’s status as a Union citizen falls to be determined’; and

-          the decision concluding the withdrawal agreement is valid, because the loss of voting rights follows from the UK’s decision to leave the EU, considering that the EU (according to prior case law) has a wide discretion in external relations and did not exceed the margins of that discretion.

More fundamentally, as to whether the withdrawal agreement ‘infringes certain principles underlying EU identity and is disproportionate since it contains no exception to the rule that British nationals lose the rights attaching to Union citizenship’, the opinion argues:

…Since the United Kingdom’s sovereign choice to leave the European Union amounts to a rejection of the principles underlying the European Union, and the Withdrawal Agreement is an agreement between the European Union and the United Kingdom to facilitate the latter’s orderly withdrawal from the former, the European Union was in no position to insist that the United Kingdom fully adhere to any of the European Union’s founding principles. Nor could the European Union secure rights that, in any event, it was not bound to assert on behalf of persons who are nationals of a State that has left the European Union and who are therefore no longer Union citizens. Finally, since Union citizenship depends upon the possession of Member State citizenship, no response other than the exclusion of British nationals from the definition of Union citizens was possible whilst remaining within the scope of the Treaties. [para 75]

Comments

Advocate-General’s opinions are not binding on the CJEU judges, so this is not the final word on the legal issues yet. But let’s examine what the opinion would mean if the judges follow it.

The opinion is, first and foremost, a complete rejection of the argument that UK citizens retain EU citizenship after Brexit. It explicitly applies whether those UK citizens have exercised free movement rights or not; and although it is focussed on voting rights (the subject-matter of the case) there is no logical reason to limit its effect to voting rights only. So the free movement rights of EU citizenship have also been lost – after the end of the transition period. (The applicant’s technical arguments about whether the transition period exceptions applied to Member States – even if those arguments had been successful – would anyway be moot now, following the end of that period).

The Advocate-General mentions the prospect of the applicant obtaining French citizenship (therefore EU citizenship), but not all UK citizens would find that route so easy. However, this is not crucial to the main logic of his legal argument, which is simply that EU citizenship depends on holding the nationality of a Member State – and the UK is no longer a Member State.

Moreover, in the view of the Advocate-General, the responsibility for the UK no longer being a Member State is solely that of the UK, given that the UK took a unilateral decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It follows implicitly that this case was not about whether Brexit itself was legally valid, since that was a matter for UK law (and that issue was not even raised by the national court). This is apparently sufficient in itself to defeat the argument relating to legitimate expectations, without needing to examine whether the EU created such expectations.

The Advocate-General does not discuss the common line of argument that ‘there is no provision explicitly detailing what happens to EU citizenship when a Member State leaves the EU’, presumably because he considers his conclusion as to the requirement of a link to the nationality of a Member State sufficient. If necessary, though, the response to that argument is simply that (as the opinion points out), Article 50 states that the Treaties cease to apply to the withdrawing Member State; and the Treaties create the concept of EU citizenship.

As for the analogy which the applicant sought to draw between Brexit and the prior CJEU judgments on the loss of EU citizenship, the opinion convincingly argues that the prior judgments confirm the link between Member State nationality and EU citizenship, not weaken it. For if EU citizenship could exist independently of holding Member State nationality, on the basis that the person concerned had once held the nationality of a Member State, then those judgments would have reached their conclusions on an entirely different basis. The whole point of the prior judgments is that the loss of Member State nationality fell within the scope of EU law because it led to the loss of EU citizenship.

The applicant’s argument turns on an assumption that EU citizenship is a status linked to individuals, not a status linked to a state’s membership of the European Union. But while there could well be an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the opinion confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

A further argument, not discussed by the Advocate-General, is that a comparison with the means of acquisition of EU citizenship is unhelpful to the applicant too. Brexit is a collective loss of EU citizenship, not an individual loss; so the better analogy is not with the case law on individual loss, but with the mechanism of collective acquisition. And the means by which nationals of the last 16 Member States to join the EU collectively obtained EU citizenship was those States’ accession to the EU on the basis of Article 49 TEU. It logically follows that the collective loss of EU citizenship follows logically from the parallel process of leaving the EU set out in Article 50.  

Photo: Garry Knight, via Wikimedia commons

Barnard & Peers: chapter 26

UK nationals and EU citizenship: References to the European Court of Justice and the February 2018 decisions of the District Court, Amsterdam

Professor Anthony Arnull, University of Birmingham, UK

The decision of 7 February 2018

The interim decision of the District Court, Amsterdam, of 7 February 2018 caused quite a stir among Brexit-watchers. The case concerned promised not only to be the first reference to the Court of Justice on Brexit but also to raise one of the most fundamental questions posed by the UK’s decision to withdraw from the EU: whether, in the absence of an agreement to the contrary, withdrawal would necessarily mean that UK nationals would lose their EU citizenship and the rights that status gave them.

The proceedings had been brought by seven claimants. The first five were UK nationals resident in the Netherlands. The sixth and seventh were associations. One, Brexpats, had been established to protect the interests of UK nationals affected by Brexit. Its claim was found to be inadmissible. The other, CADS, had been established to promote Anglo-Dutch trade relations. A challenge to the admissibility of its claim was rejected. The defendants were the State of the Netherlands and the Municipality of Amsterdam. The case was heard by Judge F B Bakels, a former Vice President of the Netherlands Supreme Court who, it is understood, had chosen to devote a short period of time before his retirement to hearing first instance cases.

The claimants were seeking a ruling that, should UK citizens retain EU citizenship after Brexit, the defendants would respect the attendant rights of the first five claimants. In particular, they asked the court to rule that the defendants should not agree to implement any agreement between the UK and the EU27 which failed to guarantee those rights. Such a ruling may not strictly speaking be necessary, since the withdrawal agreement, as an act of secondary EU law, could not alter the rights conferred by citizenship of the Union, which derive ultimately from the TFEU. In practice, however, a ruling in the terms sought might avoid the need for further litigation on the point.

Should the withdrawal of the UK from the EU be found to remove from UK citizens their status as citizens of the EU (as the wording of Article 20(1) TFEU would suggest), the claimants sought an order requiring the Netherlands to carry out an individual assessment of the compatibility with the principle of proportionality of any decision to restrict rights deriving from EU citizenship; ordering the Municipality to give effect to the individual assessments carried out; prohibiting the State from insisting that one of the claimants should relinquish her UK nationality; and ordering the Municipality and the State to facilitate multiple nationality for a person seeking Netherlands nationality within two weeks of the court’s ruling. The claimants argued that these claims required an authoritative ruling on the effect of Article 20 TFEU. They had therefore drafted a number of questions with a view to having them referred to the Court of Justice for a preliminary ruling.

The claimants stated that they had all made use of the fundamental freedoms to reside and work in another Member State and that the uncertainty surrounding their future legal position was already causing them harm. In organising their lives, they had to take account of the distinct possibility that the Netherlands might after Brexit classify them as third country nationals and require them to leave without conducting an individual assessment of their circumstances. That threat meant that they had to decide now whether to seek citizenship of the Netherlands. This was an expensive process and might have consequences for their right to retain UK nationality and therefore for their continuing right to visit the UK. There were also questions about the status of partners who might or might not have UK nationality; parents of UK nationality who had children born in the Netherlands; and UK nationals in the Netherlands whose work made it essential for them to continue to be able to travel freely throughout the EU27.

The judge ruled that, in order to assess these claims, it was necessary to establish whether loss of the status of nationality of a Member State automatically resulted in loss of citizenship of the Union or whether considerations of fundamental, acquired and minority rights and solidarity between EU citizens might require that outcome to be qualified. He therefore announced his intention to submit two questions to the Court of Justice:

Whether, in the absence of an agreement on the matter in the Brexit negotiations, UK withdrawal from the EU would automatically deprive UK nationals of their status as EU citizens and of the rights and freedoms attaching thereto;

If not, whether those rights and freedoms were subject to any conditions or restrictions.

The parties were given the right to comment on the proposed questions within a week of the judgment. They were expressly told they could not comment on any other aspect of the judgment or on the judge’s intention to refer questions to the Court of Justice.

The decision of 20 February 2018

It therefore seemed likely that the Court of Justice would be given the opportunity to rule on issues of profound significance for the scope of EU citizenship and the course of the Brexit negotiations. However, on 20 February 2018, Judge Bakels granted the State and the Municipality permission to appeal to the Court of Appeal, Amsterdam, against his earlier ruling. The appellants argued that the uncertainty of which the claimants were complaining could not be resolved by the proposed questions because their legal position depended on the content of the withdrawal agreement. This was not entirely correct because, as noted above, the provisions of the TFEU on citizenship will take precedence over the terms of the withdrawal agreement. The appellants rejected the claimants’ argument that they were already suffering harm and asserted that there was no real dispute between the parties.

Appearing to have a change of heart, Judge Bakels decided to depart from the normal rule laid down by the Netherlands Code of Civil Procedure that an appeal could be lodged only at the same time as the final judgment. He acknowledged that this did not in itself suspend the decision to refer to the Court of Justice. However, he observed that it would be contrary to due process for a reference to be made at this stage and decided that this should not now be done. It would be for the Court of Appeal, Amsterdam, to decide whether a reference should be made and, if so, what questions should be referred.

Challenging reference decisions

There is a considerable body of case law on the circumstances in which a decision of a national court to make a reference to the Court of Justice may be challenged before a superior national court. It may seem surprising that such an appeal is possible. In Joined Cases C-332/92, C-333/92 and C-335/92, Eurico Italia, for example, the Court of Justice pointed out (para 17) that

‘it has consistently held that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court.’

Moreover, the Court made it clear in Case 166/73 Rheinmühlen v Einfuhr- und Vorratsstelle Getreide that a national court cannot be deprived of its power to make a reference by the rulings of superior national courts. Indeed, in that case Advocate General Warner argued (at pp. 43-44) that ‘national legislation cannot effectively provide for a right of appeal against an order of a lower Court referring a question to this Court.’ The discretion conferred on lower national courts by what is now Article 267 TFEU, he said, was exercisable at any stage of proceedings before them and could not ‘be fettered by any rule or provision of national law’ (at p. 47).

The view of Advocate General Warner was not initially followed by the Court. In Case 146/73 Rheinmuhlen-Düsseldorf (para 3), the Court ruled:

‘in the case of a court against whose decisions there is a judicial remedy under national law, Article [267] does not preclude a decision of such a court referring a question to this Court for a preliminary ruling from remaining subject to the remedies normally available under national law.’

The Court added: ‘Nevertheless, in the interests of clarity and legal certainty, this Court must abide by the decision to refer, which must have its full effect so long as it has not been revoked.’

In 2008, that approach was substantially modified in Case C-210/06 Cartesio. In that case, the Court of Justice declared (paras 95 and 96):

‘Where rules of national law apply which relate to the right of appeal against a decision making a reference for a preliminary ruling, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, the autonomous jurisdiction which Article [267 TFEU] confers on the referring court to make a reference to the Court would be called into question, if – by varying the order for reference, by setting it aside and by ordering the referring court to resume the proceedings – the appellate court could prevent the referring court from exercising the right, conferred on it by the [TFEU], to make a reference to the Court.

In accordance with Article [267 TFEU], the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court in accordance with the case-law… Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it.’

The Court’s ruling in Cartesio effectively made judgments of superior courts on the appropriateness of a reference advisory only. That outcome might in some cases be incompatible with the national court hierarchy. In the Lady & Kid case (Order of 11 February 2010), the Danish Supreme Court therefore ruled that references made by lower Danish courts should no longer be subject to appeal. (See M Broberg and N Fenger, Preliminary References to the European Court of Justice (OUP, 2nd ed, 2014) 329-330; M Broberg and N Fenger, ‘Preliminary references as a right: but for whom? The extent to which preliminary reference decisions can be subject to appeal’ (2011) 36 European Law Review 276.) Similarly, in a decision of 30 March 2010, the Belgian Cour de Cassation declared an appeal brought against a reference by a lower court inadmissible (see K Lenaerts, I Maselis and K Gutman, EU Procedural Law (OUP, 2014, 81). The same conclusion was reached by the Irish Supreme Court as long ago as 1983: see Campus Oil v Minister for Industry and Energy [1984] 1 Common Market Law Reports 479; D O’Keeffe, ‘Appeals against an order to refer under Article 177 of the EEC Treaty’ (1984) 9 European Law Review 87.

It should be noted, however, that Cartesio does not apply unless it is only the decision of the lower court to make a reference that is the subject of an appeal and where the main proceedings therefore ‘remain pending before the referring court in their entirety’ (para 98). Thus, in Case C-525/06 Nationale Loterij, the Court held that there was no need to reply to a reference made by a court before which the case concerned was no longer pending, having been brought in its entirety before a higher court. Responsibility for ensuring that the outcome was consistent with the requirements of Union law in such circumstances belonged to the latter court.

Implications for the Amsterdam proceedings

What are the implications of the case law briefly summarised above for the proceedings brought before the District Court, Amsterdam? It will be noted that no reference has so far been made in those proceedings. It would therefore seem to follow that the argument that a reference should be made will need to be repeated before the Amsterdam Court of Appeal.

The question whether an appeal could be brought against a decision of a national court not to make a reference was considered by the Danish Supreme Court in Lady & Kid. It was held there that this remained possible and that, if the appellate court decided that a reference should be made, that ruling would be binding on the lower court. However, O’Keeffe (above, p103) argues persuasively that ‘[t]he reference in a case where the appellate court finds it necessary should be by order of the appellate court, otherwise the discretion of the lower court under Article [267] is directly violated...’ This appears to have been the view taken by Judge Bakels in his decision of 20 February 2018.

The grounds of appeal put forward by the Netherlands Government are varied. On the central issue of the effect of Article 20 TFEU, the Government asserts that this provision is acte clair and rejects the judge’s reasoning on acquired rights. A national court might easily conclude that these questions at least should be referred to the Court of Justice, provided it did not accept the argument of the Netherlands Government that the case is artificial or contrived.

As the Court explained in Case C-62/14 Gauweiler v Deutscher Bundestag (para 25),

‘…questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it…’

This makes it necessary for the national court to ‘give at least some explanation’ of why it has chosen the EU provisions of which it is requesting an interpretation (Case C-370/12 Pringle, para 84).

The claimants in the case under discussion have given plausible explanations of the range of ways in which the uncertainty surrounding their status is causing them direct and immediate harm. Even if the claims of only one of the claimants were considered credible, that would be enough to justify a reference to the Court of Justice. In his first ruling, the judge was satisfied that there was in the circumstances ‘no question of a hypothetical or notional dispute’. The questions he decided to refer to the Court were based on a detailed examination of the legal background and included extensive analysis of the case law of the Court. It therefore seems unlikely that the Court would refuse to give a ruling if it were asked to do so.

It is not clear why Judge Bakels departed from the normal rule by permitting an appeal to be brought at the interim stage and changed his mind about the desirability of a reference. If the case were none the less to reach the Court of Justice by way of a reference from either the District Court or the Court of Appeal, it would present the Court of Justice with a welcome opportunity to clarify the scope of citizenship of the Union. This would enable the Brexit negotiations to proceed on the basis of a correct understanding of the law and provide a degree of certainty to current citizens of the Union whose interests are in danger of being overlooked.

Barnard & Peers: chapter 27

Photo credit: DutchReview

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