The Limits of European Union Law: Terrorism, Statelessness and Deprivation of Citizenship

Abstract

Ever since the dastardly attacks of 11 September 2001, terrorism has reached astronomical proportions. No place on earth is safe. In the case of Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015), Lord Neuberger PSC, Lady Hale DPSC and Lord Mance, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath JJSC unanimously dismissed a suspected terrorist’s appeal. The UK Supreme Court held that Minh Quang Pham was a Vietnamese national at the time the Home Secretary deprived him of his British citizenship. Pham’s case makes particularly interesting reading against the newly elected Conservative government’s pledge (now postponed) to abolish the Human Rights Act 1998 and replace it with a “British Bill of Rights” which aims to “make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

If anything, those who follow the court’s jurisprudence will know that it is no slave to the Strasbourg system. For example, in this robust judgment, Lord Carnwath adopted an unsympathetic tone in relation to the accused terrorist’s human rights arguments by letting it be known that citing the decision of the European Court of Human Rights in Kuric v Slovenia (2013) 56 EHRR 20 (relied on by the intervener, the Open Society Justice Initiative) threw no light on the issues because it was not concerned with statelessness within the meaning of the Convention relating to the Status of Stateless Persons 1954. Pham appears to have become disillusioned with the western way of life, converted to Islam when he was 21, descended into Islamic extremism and travelled to Yemen (December 2010-July 2011) to train with Al-Qaeda in the Arabian Peninsula. His case is all the more absorbing in light of the fact that the Islamic State of Iraq and al-Sham – also known as Islamic State of Iraq and the Levant or Dawlat al Islamiya fil Iraq wa al Sham – now controls territory twice as large as the UK. Attracted to Abu Bakr al-Baghdadi’s call for Muslims everywhere to “rush” to the so-called Islamic State, droves of British fighters have flocked to Iraq and Syria to indulge in jihad. As Lord Hope of Craighead KT sagaciously explains in his foreward to Fripp et al: “How things have changed. The world has become larger and more volatile.”

This paper shares Patrick Cockburn’s dénouement that, to cage the monster of jihad, cherry picking countries such as Iraq and Afghanistan and leaving “allies” like Pakistan and Saudi Arabia to their own devices has been a fool’s errand. Strictly speaking, this paper is concerned with Pham’s case in the British courts; especially the Supreme Court’s opinion – affirming the Court of Appeal’s earlier jurisprudence – that the Luxembourg Court lacked jurisdiction to modify the mechanics of the 1981 Act. But the author nonetheless uses this opportunity to delve into the wider developments designed to deal with radicalisation and extremism.

The key issue for the Supreme Court was whether the British Nationality Act 1981 prevented the Home Secretary from depriving Pham of British citizenship because making an order of that nature would cause him to become stateless. The answer depended on the 1954 Convention and whether the alleged al-Qaeda trainee was “a person who is not considered as a national by any state under the operation of its law”. (At least 10 million people worldwide continue to suffer the privations and indignity of being denied nationality.) In the Supreme Court, Pham raised a new ground concerning loss of Union citizenship and argued that the deprivation decision was disproportionate and unlawful under EU law. However, the court did not find it necessary to resolve the dispute about EU law. Therefore, in addition to nullifying arguments about slavery to the Strasbourg system, this uncompromising decision also debunks myths about the UK’s subservience to the Court of Justice of the European Union in Luxembourg whose jurisprudence is binding on the Supreme Court unlike the Strasbourg Court’s.

Notably, the Supreme Court upheld the Court of Appeal’s reasoning in G1 (Sudan) [2013] QB 1008 that it was wrong to give the Luxembourg Court the jurisdiction to judge any procedural conditions governing, conferring, withholding or revoking citizenship without first knowing whether Parliament (under the European Communities Act 1972 or elsewhere) had relinquished its role to the Luxembourg Court to modify the UK’s laws. The trio of “truly groundbreaking” Luxembourg cases of Rottmann [2010] ECR I-1449, Zambrano [2011] ECR I-1177 and McCarthy [2011] All ER (EC) 729 – credited with representing “a tectonic shift” in the sovereignty of the Member States and “the creation of a real European citizenship” – failed to help Pham in his legal battle and in that regard his case demonstrates the limits of EU law. Legal rationale aside, this paper argues that the Supreme Court’s decision sends an important ethical message to persons who want to first train as terrorists and then later rely on the law for their salvation.

Keywords: Al-Qaeda, AQAP, Asylum, CJEU, Capital Punishment, Deprivation of Citizenship, Extradition, ECtHR, Human Rights, Iraq, ISIS, Jihad, Middle East, National Security, Pakistan, Statelessness, Syria, TEO, Terrorism, Union Citizenship, UKSC, UNHCR, US, Vietnam, Yemen