Simon Cox*

The UK Supreme Court recently examined the meaning and implications of the CJEU’s Rottmann judgment, which deals with EU law limitations on the revocation of national citizenship. The British Home Secretary’s legal representative contended that interpreting the judgment beyond cross-border situations would exceed the CJEU’s authority. The Court questioned if it could rule on the application of Rottmann before consulting the CJEU, a proposal the Government did not strongly contest.

The case involved Mr. Pham, a Vietnamese-born individual previously known as B2, whose British citizenship was revoked by the Home Secretary on national security grounds under the British Nationality Act 1981 (BNA). Pham claimed to have lost his Vietnamese citizenship. The Special Immigration Appeal Commission agreed and approved his appeal, citing a BNA provision prohibiting statelessness. However, the Court of Appeal overturned this decision, stating that Vietnam had not followed its own laws and that Pham remained a Vietnamese citizen under the 1954 UN Statelessness Convention. The interpretation of this Convention is a key point in the appeal.

EU law is also relevant. Beyond statelessness, Pham protested the loss of his EU citizenship under Article 20 TFEU. Citing C-135/08 Rottmann, Pham contended that the British deprivation decision could only be made with due consideration to EU law, particularly proportionality.

This argument had been rejected by the Court of Appeal in a separate case, R (G1) v Home Secretary [2013] QB 1008. Lord Justice Laws determined that Rottmann only applied to cross-border cases. Furthermore, the court questioned if UK law acknowledged the CJEU’s power to change the BNA’s application.

The Supreme Court denied G1 permission to appeal the Court of Appeal’s decision. Later, the Supreme Court granted Pham permission, even on the EU law point.

During the hearing, several judges questioned Pham’s barrister, Hugh Southey QC, regarding the necessity of determining the applicability of EU law. Lord Reed wondered if EU law proportionality would provide more rights than British law proportionality. Lord Neuberger proposed that British citizenship is similar to a fundamental right, implying that proportionality is required. Lord Carnwath inquired whether the BNA already mandated a proportional decision. Lord Sumption suggested that because revoking British citizenship inherently strips a person of their EU citizenship, British public law may require the former decision to respect the legal approach to the latter.

Home Secretary counsel, Tim Eicke QC, acknowledged that the deprivation decision could only stand if it satisfied Article 8 of the European Convention of Human Rights’ proportionality requirements. He claimed that Rottmann proportionality would not exceed these standards. However, he acknowledged that EU law might necessitate more disclosure of confidential information than the ECHR. When pressed on ‘substantive’ proportionality, he admitted that UK public law would offer less protection than EU law.

Lord Reed and Lady Hale questioned whether Article 8 ECHR family life rights would be as comprehensive as EU law rights of free movement. Mr. Eicke argued that the Strasbourg ruling in Karassev v Finland, issued on January 12, 1999, broadens the ECHR’s scope to include whether nationality loss violates Article 8’s right to private life.

The court mentioned Lord Justice Laws’ argument in G2, which stated that British citizenship is not within the purview of EU law. Mr. Southey responded by stating that the issue is one of interpreting the EU Treaties.

Lord Mance questioned Tim Eicke QC about the impact of subsequent EU treaties that restate previous treaties.

The Open Society Justice Initiative, which had been granted permission to intervene in the Pham case, raised a different EU law point in their written submission. They cited EU instruments providing benefits to stateless persons, such as Regulation 883/2004 (which governs social security coordination for individuals moving between Member States), to argue that statelessness is an independent concept under EU law. They contended that Pham’s argument about the definition of statelessness could not be dismissed unless the UK court considered the EU law perspective. They argued that because the CJEU had not yet defined statelessness, the Supreme Court would have to refer the matter unless they agreed with Pham solely on the basis of British law.

The UK government argued that, even if the case fell under EU law, statelessness was not an autonomous EU law concept because it arises in this instance solely under the BNA, a British law.

While the hearing is set to continue tomorrow, the Government’s submissions on EU law were largely presented 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 remarks indicated that they were considering two options: requesting the CJEU to clarify any limitations EU law imposes on the procedure and substance of depriving Pham of his British citizenship or dismissing the appeal without addressing EU law, returning the case to the fact-finding Special Immigration Appeals Commission (SIAC). The second option would require SIAC to make findings based on the alternative assumptions that EU law does and does not apply. If SIAC determined that the legal difference would result in a different outcome for Pham, SIAC or a subsequent appeal could refer the case to the CJEU.

The court noted that the first option would be time-consuming. Nobody believed the second option would be simple. Much of the debate revolved around Mr. Pham’s right to know the specifics of the British security service’s case against him, which claims he is a national security threat. This is a critical tool for appellants under the SIAC process. Because security services are hesitant to reveal their reasoning and evidence, they may choose to drop terrorism accusations rather than inform the appellant of what has been said about him in secret. As a result, increased disclosure rights may result in the case being dropped entirely.

The extent of legal disclosure requirements has been a point of contention in legal challenges to UK government decisions. The European Court of Human Rights initially weakened UK laws prohibiting disclosure in A & Others v UK, ruling that detention without trial could not be used unless the detainee was informed of the case’s substance. The UK’s highest court adopted this logic in ‘control order’ cases in AF No 3. The CJEU addressed this in C-300/11 ZZ, finding that an EU citizen facing expulsion from another EU state has the right to know the case’s essence. Strasbourg, however, rejected claims that ECHR Article 8 requires similar disclosure in I.R. v UK.

Lord Mance inquired whether Pham might have more rights under the ZZ interpretation of EU law than under UK law. Mr. Tam admitted that he might: AF No. 3 does not apply to appeals against citizen deprivation. However, even if EU law applies to a citizen deprivation appeal, the UK government disagreed that it would necessitate a ZZ approach. (Rottmann merely mentions states ’taking into account EU law.’)

All of this indicated that SIAC would likely face difficulties without clarification on the fundamental question of whether EU law applies–and, if so, what it demands. Mr. Southey unsurprisingly fiercely opposed the second option, claiming that the current uncertainty left a number of cases unresolved and possibly undecidable.

Pham’s legal team argued on Rottmann that the judgment’s language suggested that the competence invoked was citizenship (article 20 TFEU) rather than free movement (article 21), citing the Ruiz Zambrano ruling. Mr. Southey then addressed the Government’s fallback argument: that the CJEU would exceed its authority under Article 5 TEU by requiring EU law to be applied to citizenship deprivation (except in free movement cases). He claimed that the UK Parliament had designated the CJEU as the sole arbiter of EU competence. According to Section 3 of the European Communities Act of 1972, UK courts must defer to CJEU rulings on EU law: EU competence is a matter of interpreting EU treaties. If the UK government dislikes a CJEU ruling, it must either persuade other Member States to renegotiate the Treaties or amend the European Communities Act.

Lord Mance suggested that the Supreme Court inquire whether the CJEU intended to go as far as it appeared to in Rottmann. Mr. Southey agreed.

The Supreme Court reserved judgment, to be delivered 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