Supreme Court judgment in Pham v Secretary of State for the Home Department

25 March, 2015

Supreme Court judgment in Pham v Secretary of State for the Home Department (here)

Today (25 March 2015) the Supreme Court handed down judgment in this important case concerning the interpretation of the 1954 Statelessness Convention.  In addition to the guidance it gives on the approach to the concept of “statelessness” under the 1954 Convention, the judgment also contains some important obiter statements of more general importance concerning (1) the relationship, as a matter of domestic law, between the traditional Wednesbury standard of review in public law and the concept of proportionality and (2) the approach of the UK’s apex court to possible limits of EU competence (here in relation to the grant or withdrawal of citizenship).

(1) In relation to the common law standard of review, the Court reiterates and expands upon the statement in Kennedy v Charity Commission [2014] UKSC 20 (§51) that “[t]he common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle.  … … The nature of judicial review in every case depends on the context”.

(2) In relation to the approach to possible limits in EU competence, the Court builds on what it said in HS2 [2014] UKSC 3 and confirms that it “must view the United Kingdom as independent, Parliament as sovereign and European law as part of domestic law because Parliament has so willed. The question how far Parliament has so willed is thus determined by construing the 1972 Act” [§80] and that “unless the Court of Justice has had conferred upon it under domestic law unlimited as well as unappealable power to determine and expand the scope of European law, irrespective of what the Member States clearly agreed, a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements, including in the case of the 1972 Act what jurisdictional limits exist under the European Treaties and upon the competence conferred on European institutions including the Court of Justice” [§90].  As a consequence, this judgment is likely to be an important piece in the “judicial dialogue” between the CJEU and the apex courts of some Member States and, in particular, the UK Supreme Court and the German Bundesverfassungsgericht.

Tim Eicke QC appeared (together with Robin Tam QC of Temple Garden Chambers and Melanie Cumberland of 6 KBW/College Hill) for the Secretary of State.