Contract and Criminal Law Arguments Permit Deprivation of Citizenship Rights: Conduct and Exchange o


The Court of Appeal held that a person’s British citizenship may be taken away for disloyalty to the State in Pham v The Secretary of State for the Home Department [2018] EWCA Civ 2064.

A man naturalised as a British citizen as a 6 year-old child was extradited to the United States and admitted, was charged, convicted and sentenced for providing resources and materials, conspiring to receive training and carrying a Kalashnikov rifle to further violence for a proscribed organisation, al Qaeda, in Yemen.


Concern had previously been raised up to the Supreme Court level in Pham v Secretary of State for the Home Department [2015] UKSC 19 that removing his UK citizenship would make him stateless. It was held that this was not so as he would likely have rights under Vietnamese law regardless of Vietnam’s preference.

Justified Removal of UK Citizenship?

In this instance, the Court assessed whether deprivation of UK citizenship was justified applying the statutory test under the 1981 British Nationality Act which is whether the Secretary of State finds it ‘conducive to the public good’ to deprive someone of citizenship.

The distinguishing features between nationality and citizenship often gets blurred.

Citizenship bestows rights upon a person whereas nationality tends to be a way in which a person defines her/himself within the international system as belonging or identifying with [or not, as the case may be] to a nation.

In Pham, the ratio suggests that in exchange for citizenship, one must demonstrate loyalty to the State.

Importance of Rights to an Individual based upon jurisdiction

Arden LJ in Pham held that:

‘nationality is an important and weighty right. It is properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection and so on.’

In 2008, Lord Goldsmith published a report into the definition of British citizenship, offering solutions for some of the inherent contradictions- individuals’ belief that citizenship also offers rights to welfare and to vote but that in practice, these matters are not necessarily linked to citizenship.

Loyalty Integral to One’s Citizenship Rights?

Arden LJ and Mitting J agreed with the Secretary of State of the Home Department that to be afforded the protection of the State, one must demonstrate loyalty to it.

In this case, they suggest that Pham did not demonstrate his loyalty to the State due to the length of time which he devoted to an opposing regime and historical legal arguments. It was argued that previously, suggestions of treason resulted in more dire consequences and to deprive someone acting against state’s interests of citizenship was appropriate given the facts of the case. Therefore, Pham was not to be provided further rights.

Mitting J:

‘British citizenship is an important right, but it carries with it obligations, fundamentally, of loyalty. They have existed for centuries. The treason legislation would, if applied to the appellant’s acts, have given rise to a viable case against him and in former times he would have faced far more severe consequences than the deprivation of his British citizenship.’

In Pham, arguably some feudal law definitions of loyalty were applied. The oath of allegiance was used by the Court to define loyalty as an individual’s fulfilment of duties in exchange for protection by the Crown.

Paragraph 43 of the Judgment:

‘I, {name}, swear by Almighty God that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law … I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen.’ 1844 Naturalisation Act

However, this oath is not universally applied to citizens. If someone is born British or becomes British when young, as did Pham, it would not. Nor does statute define the rights and obligations required of a British citizen. Only since the 1914 British Nationality and Status of Aliens Act has it been possible for rights as a British subject to be acquired or denied.

The 1948 British Nationality Act provided citizenship status and the allegiance element required as a legal subject was dropped but may have been interpreted as a duty under common law.

The 1981 British Nationality Act did away with the concept of ‘subject’ and likewise, the common law duty of ‘allegiance’.

Two Sets of Laws or Levelling Down?

UK Citizens at Birth or Naturalised as Children and Naturalised UK Citizens

Those born UK citizens were covered by treason laws while naturalised UK citizens were covered by the 1914 British Nationality Act where allegiance was a duty and the 1918 British Nationality and Status of Aliens Act which could result in lost citizenship for disloyalty or disaffection for those naturalised. This continued in the 1948 and 1981 British Nationality Acts.

In 2002, UK citizenship rights for those born and those naturalised arguably drew closer together when considering policy. Intention of the person potentially at risk of losing citizenship has been cut out of the test replaced by a new deprivation test.

The objective standard test was ‘anything seriously prejudicial to the vital interests of the United Kingdom’ which was amended in 2006 where deprivation is appropriate if it ‘was conducive to the public good’.


The 1352 Treason Act may apply where a person owing allegiance to the Sovereign acts in breach of this duty. The last prosecution for treason was in 1981 under the 1842 Act when someone shot near the Queen and which did not necessitate allegiance in the commission of the offence.

In 1977 attempts to amend treason legislation were made by the Law Commission.

Political parties have called for reform of the Treason laws to be more in line with amendments to citizenship definitions.


In this case, considering the facts and admissions of Pham, it may have been appropriate for his citizenship to have been deprived. However, of concern is that the Courts are legislating on a much broader matter to be applied to British citizens universally with the ratio of this case and adding an inappropriate obligation to the definition of citizenship.

#nationality #citizenship #Pham

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