Public Law

Proportionality Review Cases

Pham v Home Secretary [2015] UKSC 19

Key Points

• The judgments in this case indicated support for proportionality to become a free-standing ground of judicial review at common law, outside the application of the Human Rights Act 1998 or EU law (before the repeal of the European Communities Act)
• The judges generally agreed that reasonableness review takes into account the same considerations of weight and balance between rights and countervailing public interests as proportionality, and that the same outcome would result whether reasonableness review or proportionality was applied
• Lord Mance suggested that proportionality review was applicable in common law in this case given the radical nature of the removal of citizenship, while Lord Reed explicitly argued that proportionality should apply in common law whenever important rights are involved

Facts

• Pham (P) was born in Vietnam but acquired British nationality
• The Home Secretary made an order under s40(2) British Nationality Act 1981 to remove P's citizenship based on evidence that P had received terrorist training in Yemen
• Under s40(4), the Home Secretary "may not make an order under subsection (2) if he is satisfied that the order would make a person stateless"
• When notified of the Home Secretary's decision, the Vietnamese Government declined to accept that P was a Vietnamese national
• P applied for judicial review of the deportation order on two grounds:
  1. The order was unlawful under domestic law as it infringed s40(4) British Nationality Act 1981 as he would be rendered stateless as a result
  2. The order must be reviewed under administrative standards in EU law such as proportionality as P was a EU citizen by virtue of his British citizenship under Article 20(1) TFEU