“(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good. … (4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.”
“Whether the effect of the order depriving Mr Al-Jedda of his British nationality was to make him stateless is a matter of English law, but the answer turns on the Iraqi law of nationality. It is trite law that the determination of foreign law is a question of fact to be decided on expert evidence ….”
“17. Dr Mohsin gave evidence in Arabic through an interpreter. Mr Naji gave evidence in English. We have borne in mind that some parts of Dr Mohsin’s evidence might not have got across quite as he intended, and that Mr Naji was giving evidence in a language which was not his first language. Having said that, the expertise of the witnesses (save for when it came to questions of international law) was not in doubt, and we are satisfied that they were doing their best to give their evidence impartially. No doubt for cultural reasons, Dr Mohsin had some difficulty in giving direct answers to the questions he was asked when his opinions were tested, and that undermines to some extent the value of the opinions he expressed.”
“1. Each Iraqi who has acquired a foreign nationality in a foreign country upon his free choice will be denied the Iraqi nationality. 2. If the person who lost the Iraqi nationality upon paragraph (1) has returned to Iraq in a legal manner and has lived in it for one year [that person] can be considered by the Minister as acquiring the Iraqi nationality after that year and as from the date of returning if submitting an application to retain the nationality before the lapse of said period of time.”
“32. For these reasons, we find that the Iraqi courts would have decided that someone who was ‘considered’ an Iraqi national under Arts. 2, 3 and 4 of the 1963 Nationality Law did not need to apply for a certificate of nationality to be an Iraqi national. However, anyone who lost Iraqi nationality as a result of the prohibition on dual nationality in Art. 11(1) of the 1963 Nationality Law could only re-acquire Iraqi nationality if they applied for it under Art. 11(2), provided that they had returned to Iraq lawfully and had lived in Iraq for a year. That application could be refused on grounds of national security, but if it was successful, the issue of the certificate of Iraqi nationality followed automatically. That was the consequence of Art. 11(2) rather than the effect of the 1965 Regulations. It is now accepted that Mr Al-Jedda lost his Iraqi nationality pursuant to Art. 11(1) on12 June 2000 when he was granted British nationality. It is also accepted that no application was made by Mr Al-Jedda for the restoration of his Iraqi nationality under Art. 11(2) – whether while the 1963 Nationality Law remained in force or subsequently.”
“42. … Was it intended that those who had lost their Iraqi nationality as a result of the prohibition on dual nationality should regain it automatically (as should those who had lost it by virtue of decision 666 of the Revolutionary Command Council), whereas those who had lost it for political, religious, racial or sectarian reasons had to apply for it? That was Mr Naji’s position. Or was it intended that anyone who had lost their Iraqi nationality – for whatever reason – had to apply for its restoration, the difference between those to whom Arts. 11(C) and 11(E) applied and those to whom Art. 11(D) applied being that the former were entitled to have it restored once they had established either that they had originally had Iraqi nationality but that they subsequently acquired a foreign nationality, or that they had lost it by virtue of decision 666, whereas the latter could have their application refused on other grounds, for example, because they posed a threat to national security? Or could the distinction be that those who had their Iraqi nationality restored under Arts. 11(C) or (E) were to be regarded as having never lost it, whereas those who had it restored under Art. 11(D) were to be regarded as not having had it during the years when it had been withdrawn?”
“51. … We are left with the language of the TAL, and its aim for those who had been deprived of their Iraqi nationality by the previous regime to have their Iraqi nationality restored. That would be inconsistent with some of them – those to whom Art. 11(D) applied – having their application for the restoration of their Iraqi nationality refused on, say, national security grounds. It would also be inconsistent with some of them – again those to whom Art. 11(D) applied – not subsequently being treated as having been Iraqi nationals all along during the period when they had lost their Iraqi nationality. We are driven to the conclusion that the Iraqi courts would decide that the difference which the TAL intended between those to whom Arts. 11(C) and 11(E) applied and those to whom Art. 11(D) applied was that the former should regain their Iraqi automatically, whereas the latter had to apply for its restoration.”
“(1) Iraqi citizenship is a right for every Iraqi and is the basis of his nationality. (2) Anyone who is born to an Iraqi father or mother shall be considered an Iraqi. This should be regulated by law. (3) A. An Iraqi citizen by birth may not have his citizenship withdrawn for any reason. Any person who had his citizenship withdrawn shall have the right to demand its reinstatement. This shall be regulated by a law. … (4) An Iraqi may have multiple citizenships ….”
“57. … But the fact that they have only the right ‘to demand’ the reinstatement of their Iraqi nationality if they have previously lost it suggests that the Constitution envisaged something other than its automatic restoration. Having said that, the fact that they have the right to ‘demand’ it, rather than just to apply for it, is significant. ‘Demand’ is a strong word, and the Iraqi courts would conclude, we think, that it means that if an Iraqi citizen by birth had their Iraqi nationality withdrawn in the past, it has to be restored to them if they ask for it back. However, it was because they have to ask for it back that Mr Naji acknowledged in the course of his cross-examination – and confirmed to us at the end of it – that if Mr Al-Jedda had not acquired Iraqi nationality automatically under the TAL (or under resolutions 111 or 117 of the Governing Council), he could not have acquired it automatically under the Constitution. 58. How does this reading of Art. 18(3)A fit in with Mr Naji’s opinion that the Iraqi courts would treat Mr Al-Jedda as having acquired Iraqi nationality automatically under Art. 11(C) of the TAL? At first blush, the answer would appear to be not well: if those who had lost their Iraqi nationality as a result of the prohibition on dual nationality automatically had it restored by Art. 11(C) of the TAL when the TAL came into force, where is there any room for an application of the type which the Constitution appears to have been envisaging? That was a question which Mr Naji was not asked, and it is plain that the point simply had not occurred to him when he acknowledged that the Constitution required Mr Al-Jedda to apply for the restoration of his Iraqi nationality if he had not already had it automatically restored under the TAL. The answer which the Iraqi courts would give has to be, we think, that the need envisaged by the Constitution to apply for the reinstatement of one’s Iraqi nationality when it had previously been withdrawn applies only to those who had not had it automatically restored under the TAL. In other words, the need to apply for it applies to those who had their Iraqi nationality withdrawn for reasons other than the prohibition on dual nationality or decision 666 of the Revolutionary Command Council. These include, for example, those to whom Art. 11(D) of the TAL related, i.e. those who had their Iraqi nationality withdrawn for political, religious, racial or sectarian reasons. So although Mr Naji was entirely correct to acknowledge that the Constitution envisaged the need to apply for the restoration of one’s Iraqi nationality, he was wrong to acknowledge that that applies to someone like Mr Al-Jedda who had lost their Iraqi nationality as a result of the prohibition on dual nationality.”
“1. An Iraqi who acquires a foreign nationality shall retain his Iraqi nationality, unless he declares in writing his renunciation of Iraqi nationality. … 3. An Iraqi who renounces his Iraqi nationality may regain it, if he legally returns to Iraq and stays there for at least one year. The Minister may, on expiry thereof, consider him to have acquired Iraqi nationality from the date of his return if he submits an application to regain Iraqi nationality before the end of the aforementioned period. He may avail himself of his rights on only one occasion.”
“17. Decision No. 666 of 1980 issued by the (defunct) Revolutionary Command Council shall be repealed and Iraqi nationality shall be restored to any Iraqi who has forfeited his Iraqi nationality in accordance with that decision and all the unjust decisions issued by the (defunct) Revolutionary Command Council in that respect. 18.1 An Iraqi who forfeits his Iraqi nationality on political, racist or sectarian grounds may regain it by submitting an application to that effect ….”
“In order to standardise the provisions relating to Iraqi nationality, to repeal the provisions relating to the forfeiture of Iraqi nationality by an Iraqi who acquires a foreign nationality, to enable an Iraqi who has been arbitrarily deprived of Iraqi nationality to regain it in accordance with the regulations and to bind an Iraqi to his homeland wherever he is in the world and encourage him to maintain his links with Iraqi soil despite having acquired another nationality, this law has been enacted.”
“68. … Such a literal reading of Art. 10.1 would produce the highly surprising result that their position would not have been dealt with anywhere in the 2006 Nationality Law, and therefore when ‘the explanatory memorandum’ referred to the purpose of the 2006 Nationality Law being, amongst other things, ‘to enable an Iraqi who has been arbitrarily deprived of Iraqi nationality to regain it’, it was referring only to those who had lost it as a result of decision 666 of the Revolutionary Command Council or for political, racial or sectarian reasons, and not to those who had lost it as a result of the prohibition on dual nationality. 69. In our view, Art. 10.1 has to be considered from the standpoint of the Iraqi courts, and in the absence of any evidence about the rules of construction which the Iraqi courts would apply to it, Art. 10.1 should be construed in accordance with the English rules of statutory construction, one of which is that the construction which best avoids an anomalous result should be adopted. Mr Naji’s evidence in effect was that the Iraqi courts would decide that Art. 10.1 did apply to someone like Mr Al-Jedda … – presumably reading the words ‘[a]n Iraqi who acquires a foreign nationality’ as including ‘[a]n Iraqi who acquired a foreign nationality and therefore lost his Iraqi nationality’, and reading the words ‘shall retain his Iraqi nationality’ as including ‘shall have his Iraqi nationality restored to him’. Such a construction of Art. 10.1 would not offend against the presumption against retrospectivity in Iraqi law to which Major-General Al-Yasiri referred to in his letter: it would simply be restoring nationality to someone who had previously lost it. We accept Mr Naji’s evidence, because it would be astonishing if Art. 10.1 looked only to the future, and did not also seek to rectify the injustices of the past. Dr Mohsin did not deal with the effect of Art. 10.1 – no doubt because he regarded Art. 10.3 as decisive – but the fact remains that Dr Mohsin did not express a view about the effect of Art. 10.1 if the court preferred Mr Naji’s evidence on whether Art. 10.1 was the provision which applied to someone like Mr Al-Jedda.”
“74. … However, the fact that that may be what the authorities currently do does not mean that that is what the law requires to be done for Iraqi nationality to be restored to those who have lost it as a result of the prohibition on dual nationality. Whether the law requires that to be done depends on the proper interpretation of Art. 18 of the new Constitution and Art. 10 of the 2006 Nationality Law. For the reasons we have given, we have concluded that the Iraqi courts would decide that someone who lost their Iraqi nationality as a result of the prohibition on dual nationality does not have to apply for a certificate of Iraqi nationality to have their Iraqi nationality restored to them. The consequence is that Mr Al-Jedda did not have to apply for a certificate of Iraqi nationality to have his Iraqi nationality restored to him. It was restored to him automatically, though under Art. 10.1 of the 2006 Nationality Law he was entitled to renounce it in writing. Since he had not done so by14 December 2007 when he lost his British nationality, he was still an Iraqi national on that date.”
“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”
“4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future. … 8. Requests the Secretary-General to appoint a Special Representative for Iraq … 9. Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority.”
“1. Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognised and set forth in resolution 1483 (2003), which will cease when an internationally recognized, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia through steps envisaged in paragraphs 4 through 7 and 10 below; … 4. Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority; 5. Affirms that the administration of Iraq will be progressively undertaken by the evolving structures of the Iraqi interim administration; 6. Calls upon the Authority, in this context, to return governing responsibilities and authorities to the people of Iraq as soon as practicable …; 7. Invites the Governing Council to provide to the Security Council, for its review, … a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution ….”
“1. Endorses the formation of a sovereign Interim Government of Iraq … which will assume full responsibility and authority by30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected Transitional Government of Iraq assumes office as envisaged in paragraph four below; 2. Welcomes that, also by30 June 2004 , the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty ….”
“This important limitation on ‘taking any actions affecting Iraq’s destiny beyond the limited interim period’ reportedly resulted from pressure by various Iraqi groups fearful that the position of Kurds, Shiites, or others might be undermined irrevocably by actions taken by the ‘sovereign’ Interim Government. This constraint placed the Interim Government, paradoxically, in a position analogous to that of an occupying power. The CPA interpreted the provision as limiting the Interim Government’s power to conclude treaties. The constraint bears obvious similarities to the obligations on occupying powers to refrain from making fundamental changes in the legal system of the occupied territory, and to behave generally in a trustee-like manner. The fact that the term ‘caretaker government’ was often used with reference to the Interim Government confirmed this interpretation. Thus, ironically, a transformative occupation challenging the very foundations of the law of the Hague Regulations and the Fourth Geneva Convention had the effect of leading to a reassertion of the conservative principles that underlie occupation law – even at the moment when the occupation was deemed to be at an end.”
“… I welcome the clarification made recently by Ambassador Paul Bremer, the Administrator of the Coalition Provisional Authority, who, among other things, stressed that ‘the interim Government will not have the power to do anything which cannot be undone by the elected Government which takes power early next year’. The fact is that the Transitional Administrative Law is exactly what is says it is: a transitional administrative law for the transition period. It is not a permanent constitution. Indeed, it is not a constitution at all. The Transitional Law – or any other law adopted in the present circumstances – cannot, in our opinion, tie the hands of the national assembly, which will be elected in January 2005 and will have the sovereign responsibility of freely drafting Iraq’s permanent constitution.”
“We have not overlooked Dr Mohsin’s point that hundreds of thousands of Iraqis in the diaspora – possibly as many as 1.5 million people – would on Mr Naji’s view have automatically re-acquired Iraqi nationality – even if (a) they had no wish to have Iraqi nationality, and (b) the acquisition of Iraqi nationality would cause problems for them in their adopted country – without the completion of any administrative formalities whatsoever. … [SIAC rejected an argument based on the absence of official press statements to that effect, and continued:] Nor do we think that any difficulties would have been caused to those who were having the restoration of their Iraqi nationality ‘thrust’ on them. If they did not want it, they could renounce it, and we were not told of any insuperable problems which that might involve.”
“The idea of automatic conferral of citizenship is against the well-understood custom and practice in Iraq.
“2. The General Directorate for Nationality in Iraq did not apply the provisions of Article (11) of the TAL, which was issued in 2004. This is due to the fact that no laws were issued to regulate the terms of nationality and naturalization in accordance with the wording of the foregoing Article, as it provides for general principles that the Iraqi legislator must follow when legislating laws related to nationality and naturalization. Therefore, those who lost their Iraqi nationality as a result of acquiring another nationality did not benefit from the provision of this Article.”
“Q. Mr Naji, at the beginning of this morning you said in response to questions from Mr Hermer that, if Mr Al-Jedda had not regained Iraqi nationality either under the TAL or under decisions [i.e. resolutions] 111 or 117, he could not have reacquired Iraqi nationality either under the Constitution or under the nationality law of 2006. A. Correct. Q. If that is correct … what it means is that whether Mr Al-Jedda reacquired Iraqi nationality is going to be dependent on the TAL or decisions 111 and 117. A. I would say and/or. Q. Very well and/or. It means, therefore, that either way on your evidence the meaning and effect of the Constitution and the meaning and effect of the 2006 nationality law are not material for the commission because, if he acquired nationality under the TAL or decisions 111 or 117, we do not have to consider the Constitution or the nationality law of 2006; alternatively, if he did not acquire nationality under the TAL or decisions 111 or 117, equally we do not have to consider the Constitution or the nationality law of 2006 because you have agreed with Mr Hermer that they would not give him nationality if he had not got it already. A. Assuming the assumption that Mr Hermer has given that he did not regain it under the resolution. Q. Of course. I just wanted to make sure that I understood the effect of your evidence ….”
“5. The wording of [Article 10.1] … does not apply to the applicant as he lost his nationality before [the 2006 Nationality Law] had come into force, as a law may not be applied in Iraq unless after its enforcement. This means that a law may not be applied retrospectively, unless the new law contains a provision providing to the contrary. This is according to Article (10) of the Iraqi Civil Law No. (40) of 1951. 6. The applicant, like all those who lost their Iraqi nationality in accordance with the annulled [1963 Nationality Law] on the ground of acquiring a foreign nationality, must submit an application to the Ministry of Interior expressing his desire to restore his Iraqi nationality, in accordance with the conditions stated in [Article 10.3 of the 2006 Nationality Law]. 7. Such persons who apply to regain their nationality in accordance with the provisions of [Article 10.3] may be in the position of the applicant and have lost their nationality in accordance with [the 1963 Nationality Law] on the ground of acquiring another nationality, or may have relinquished their nationality in writing in accordance with [Article 10.1 of the 2006 Nationality Law]. The procedures and the application process are the same in both cases. 8. Therefore, the case of the application represents an example of the explanation given in my Book …, in (Case I) of (Chapter 5) …. The five conditions included under this Chapter must be fulfilled, as if not fulfilled by the application; his nationality will not be restored, and therefore he will not be considered an Iraqi citizen. 9. The Minister of Interior has the absolute and full discretion to accept or reject the application submitted under [Article 10.3 of the 2006 Nationality Law]. However … the applicant may appeal the rejection decision before an Iraqi court. Until now, no appeals have been filed, yet if an appeal is made, then the court will require justification for the rejection decision from the Minister of Interior. The Minister may cite concerns related to the Country’s security. Undoubtedly, the court will take these concerns into consideration when taking its final decision. We have many applications for nationality restoration made by individuals who lost their Iraqi nationality in accordance with [the 1963 Nationality Law] due to acquiring a foreign nationality upon their free choice. All those applications must fulfil the conditions stated in [Article 10.3 of the 2006 Nationality Law], as explained in this letter.”
“The obvious, and, we are satisfied, only proper conclusion is that Parliament intended that the Secretary of State should not make a deprivation order in respect of a person who is not considered as a national by any state under the operation of its law – the definition in Article 1.1 of the 1954 Convention. Such an interpretation has the advantage of aligning domestic law with the United Kingdom’s international obligations. As to the burden and standard of proof, we are satisfied that the burden is on the Appellant and that he must prove that he would be made stateless on the balance of probabilities.”
“1. A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless. ….. 3. Notwithstanding the provisions of paragraph 1 of this article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: (a) That, inconsistently with his duty of loyalty to the Contracting State, the person: …. (ii) Has conducted himself in a manner seriously prejudicial to the vital interests of the State…..”