As Steve Vladeck observed in one of his first posts at Just Security, citizenship-stripping proposals are a recurring feature in American politics and public discourse, especially in the aftermath of a recent terrorist incident. Last week, April 7, saw the defeat in the House of Lords of the UK Government’s most recent citizenship-stripping proposal (“the Proposal”). The Proposal took the form of a clause in the Immigration Bill which is presently winding its way through Parliament. By the Proposal, the Government sought to change section 40 of the British Nationality Act 1981. Section 40 provides that citizenship can be removed on two grounds:
(a) from those who have acquired it fraudulently – where the citizenship results from registration or naturalization – and
(b) where the Secretary of State is satisfied that the person has done something seriously prejudicial to the vital interests of the UK, provided, as is made clear by section 40(4), that revocation of citizenship would not render him stateless.
The Proposal was, in relation to (b) and in those cases where a person’s citizenship status results from her naturalization, to strip away the protection against statelessness which is provided by section 40(4) – to create, in Hannah Arendt’s words, a pool of people who lack the right to have rights.
Strikingly,
- the Proposal was introduced very late by the Government: there was no pre-legislative scrutiny and no consultation.
- the Proposal was not (cf. Steve’s observations about the US experience) a reaction to a terrorist incident. It was, in fact, triggered by an observation in the Supreme Court judgment in Al-Jedda v Secretary of State for the Home Department in October 2013. That (i.e. the limited time between October 2013 and January 2014) apparently explains why the Proposal was not subject to pre-legislative scrutiny and consultation: see the Home Office correspondence with the Joint Committee on Human Rights.
In Al-Jedda, the Supreme Court grappled with the Home Secretary’s attempt to strip Mr. Al-Jedda of his British citizenship. Mr. Al-Jedda, an Iraqi national, acquired British citizenship in 2000 and, as a consequence, automatically lost his Iraqi nationality. In 2004, he was detained in Iraq by British forces on the ground of suspected membership of a terrorist group. Shortly before his release in 2007, he was notified of an order under section 40, depriving him of his British nationality on the ground that it was conducive to the public good to do so. He appealed, arguing that the order was void since it would have the effect of making him stateless. The Supreme Court, referring to the “evil of statelessness,” held that section 40 required the Home Secretary to identify whether a person held another nationality at the time when she proposed to deprive someone of their British citizenship and that it was not open to the Home Secretary to assert that the cause of statelessness was not her section 40 order but the person’s failure to apply for the restoration of his other nationality. Most critical, in the present context, is the Supreme Court’s observation that by enacting section 40(4) “Parliament went further than was necessary in order to honour the UK’s existing international obligations”. That is because, in 2002, when section 40 was amended so as to be in its present form, the then UK Government had intended to ratify the European Convention on Nationality. Article 7(1) of the European Convention on Nationality provides that a contracting state cannot deprive a person of her nationality except on seven specified grounds; one of those grounds is that her conduct has been seriously prejudicial to the vital interests of the state. However, Article 7(3) prohibits deprivation on this ground if it will result in statelessness. The European Convention remains unsigned and unratified by the UK; hence the Supreme Court’s observation.
The Parliamentary debate in the House of Lords on March, 17 2014 clearly revealed the deficiencies in the Proposal. Highlights include:
“Clause 60 is a response to the judgment about Hilal Al-Jedda by the Supreme Court, which clarified that the Secretary of State could not withdraw citizenship from an individual if this would leave them stateless. For the Government to do so would lead to one of two scenarios. The first is that a former citizen would remain locked in the UK, unable to leave, work or receive any support, but the Government would still have obligations to that individual. …The second scenario is that the former citizen, whom the Government consider to be engaged in actions prejudicial to UK interests, is left stateless in another country. I would be very interested to know what discussions the Government have held on this proposal with other countries, such as the USA or Germany, which have not given themselves the power to make other citizens stateless. The fight against terrorism is international and global. What are the implications for national and international security of allowing terror suspects to be loose and undocumented in whatever country they happen to be in when their citizenship is revoked?…There are many unanswered questions on this clause—on the purpose, the practicality and the impact.” (Baroness Smith of Basildon; emphasis added)
“Deprivation, with all its consequences in the modern world, is equivalent to a penal sanction of the most serious kind, but imposed without a criminal trial, without a conviction, without close and open examination of the evidence, and without an effective opportunity of defence, contrary to the requirements of due process. From the perspective of international law, in particular, the re-introduction of previously repealed statutory provisions on deprivation resulting in statelessness is arguably inconsistent with Article 8(3) of the 1961 Convention on the Reduction of Statelessness. The deprivation of citizenship resulting in statelessness will engage the United Kingdom’s international responsibility where it violates the rights of other states. …As a matter of international law, the United Kingdom has no right to deport a person whom it has made stateless to any state which has not expressly agreed to admit the individual; nor does it have the right to refuse to readmit a former British citizen who has been deprived of his or her citizenship while present in another country. Deprivation of citizenship may engage a variety of European convention rights, and a person deprived of their British citizenship does not cease to be within the jurisdiction of the United Kingdom for the purposes of those rights. Deprivation of citizenship is potentially inconsistent with obligations accepted by the United Kingdom under many different treaties dealing with terrorist acts, in particular, the obligations of investigation and prosecution in the fulfilment of which every other state party has a legal interest. Deprivation of citizenship will likely expose the conduct of the United Kingdom to close and critical scrutiny whenever a former British citizen seeks international protection from the United Nations High Commissioner for Refugees, or as a stateless person or convention refugee.” (Baroness Kennedy of The Shaws; emphasis added)
“Does the Minister accept—this is the crucial question— that if British citizenship is removed from a person in this country on public-good grounds, with the result that they are rendered stateless, it will make it much more difficult to remove that person to another state? Other states are less likely to accept entry by a person who is stateless than one who enjoys British citizenship. Does the Minister therefore accept that, far from contributing to national security, the exercise of Clause 60 against persons in this country will positively damage national security by making it more difficult to remove people who are a danger to the public good? For this reason, it seems highly likely that Clause 60 will in practice only ever be used against people who are living abroad. Does the Minister agree that, if we strip a person of British citizenship while they are abroad, thereby rendering them stateless, there is a real danger that the country that admitted them temporarily will take urgent steps to remove them back to this country, since it will not wish to be responsible for a stateless person? It is surely highly likely that the United Kingdom will be told by the country where such a person is living that it admitted that person temporarily only because the individual had a British passport. The foreign country will surely say that, now that the passport has been taken away, the United Kingdom can have that person back. There will then be a dispute with the foreign state—and some such states are our allies—about our duty to re-admit someone who was admitted to it only because they presented a British passport that has now been revoked.” (Lord Pannick; emphasis added)
There followed, on April 7, a debate in which the House of Lords considered an amendment to the Proposal, moved by Lord Pannick and others. This called for thorough pre-legislative scrutiny of the Proposal by requiring the establishment of a committee of members of both Houses of Parliament
“to consider and report on whether section 40 of the British Nationality Act 1981 (deprivation of citizenship) should be amended to enable the Secretary of State to deprive a person of their citizenship status if—(a) the citizenship status results from the person’s naturalisation, and (b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, even if to do so would have the effect of making a person stateless.”
The amendment was agreed by a considerable majority. The fundamental point was persuasively put by Lord Lester of Herne Hill:
“If I were persuaded, as the Minister has suggested, that this debate and previous debates are adequate as a substitute for effective pre-legislative scrutiny, I would not support the noble Lord, Lord Pannick, but I am not persuaded of that.”
And
“We have no written constitution. We have no constitutional court that would be able to rule upon the matter. Therefore the safeguards have got to be parliamentary safeguards. Judicial review could not review the compatibility of the Bill with the [ECHR] because, if the Government are right, the [ECHR] might just as well be written in water—it has no application. That makes me consider it absolutely vital that Parliament properly considers the Bill before this can go on to the statute book, in order to make sure that it is satisfied of the constitutionality of the Bill and its compatibility with human rights.”
The Immigration Bill – with this new amendment – will shortly go back to the House of Commons where the Government will need to decide what to do with it. One would hope, given the compelling points made in the House of Lords, that it wouldn’t take them too long to see the obvious sense in the new amendment. Whether that happens remains to be seen.