Tuesday, November 18, 2014

Legal: UK Supreme Court Addresses 'B2' Statelessness Challenge

Source: Open Society Foundations
November 16, 2014   by Simon Cox

Does unlawful deprivation of citizenship make a person stateless? Or should other states treat them as still having that nationality—even though the country concerned does not accept that?

The United Kingdom Supreme Court will confront these questions this week when hearing the B2 case. “B2”, whose identity is protected under a legal order in the UK, is a Vietnamese-born man who was raised in England, and who is accused by the British government of being an Al-Qaeda supporter. Unwilling to present their evidence to a criminal court, the government instead stripped B2 of his British citizenship in 2011. He appealed to the UK’s immigration commission, where the government of Vietnam denied he was a citizen of that country. UK law—following international law—barred deprivation of British citizenship which leaves a person stateless: so the commission allowed B2’s appeal.

Under the 1954 United Nations convention on statelessness, a person is stateless if they are “not considered as a national by any State under the operation of its law.” This convention requires states to protect these stateless people. The convention does not apply to people who have citizenship but whose state refuses to protect them: though other international law rules may apply, such as the 1951 Refugee Convention.

The UK Government did not dispute that Vietnam did not consider B2 its citizen. Nor did they argue that B2 had any chance of persuading his country of birth to change its mind. Instead the British Home Secretary appealed, arguing that Vietnam’s decision did not count, because under Vietnam’s own law, B2 ought to be considered a citizen. The denial of B2’s nationality was therefore unlawful, so B2 was not stateless. The Court of Appeal agreed and the Supreme Court decided to hear the case.

If the UK Government is right, the only people who are stateless are those denied nationality lawfully. A Government which breaks its own laws to count its citizens as foreigners can be ignored. The Dominican Republic denies citizenship to hundreds of thousands of Dominican-born people of Haitian descent: but this was repeatedly found unlawful by the Inter American Court of Human Rights. Even though the DR has disregarded these decisions , if the British argument is right, other states have no obligation to protect these people as stateless, since they are logically citizens of the Dominican Republic, even if the government of the Dominican Repubic refuses to acknowledge them as such.

The Open Society Justice Initiative has been given permission to intervene in the appeal. We argue that the UN Conventions on statelessness protect those whom no state considers to be its citizens under its own law. It does not matter whether Vietnam operated that law correctly or not. What matters is that Vietnam does not consider B2 a citizen under Vietnamese law.

The UK’s approach would seriously undermine international legal protection. It is usually unlawful to make people stateless—so it is populations in countries with the worst human rights records, that is the worst rule of law, that most need protection. Yet if only ‘lawful statelessness’ counts, these people will have the least chance of counting as stateless when denied citizenship.

The international community should demand that states honour their own nationality laws and international law against statelessness. The UK's position risks undermining that work by arguing for an interpretation of the law that would weaken protections for those most in need.

The United Kingdom Supreme Court will hear the case on 18-19 November 2014. The Court normally gives its judgment at a later date.