By Dr Lusine Navasardyan of OTS Solicitors
“The rights of every man are diminished when the rights of one man are threatened.” – John F. Kennedy
Is British citizenship a privilege or a right? According to the Home Office, it is the latter. Few people will be aware that the Government has the power to strip people of their British citizenship, even if they are British-born. Even fewer will know that the UK has emerged as the world leader in using citizenship deprivation as a counter-terrorism measure (Pillai, S and Williams G, Twenty-first century banishment: citizenship stripping in common law nations (I.C.L.Q. 2017, 66(3), 521-555)).
The main use of the power to remove British citizenship is to strip those who are strongly believed to have links to terrorist organisations from returning to Britain if they travel to the likes of Syria or Libya. In March 2017, the European Court of human rights held that this process was lawful when it threw out the case of a Sudan-born terror suspect who argued depriving him of his British passport violated his right to a private and family life under the European Convention on human rights, Article 8.
But despite the obvious best-intentions of the British Government to keep its citizens safe, Immigration lawyers and human rights groups have voiced concern that the power to strip a person of their citizenship or to denationalise them, is open to abuse and mistakes.
The terror threat and denationalisation
According to Sangeetha Pillai and George Williams’s paper, Twenty-first century banishment: citizenship stripping in common law nations, denationalisation has gained popularity with the public in countries such as Austria, Belgium and the Netherlands. The authors cite that since 2011, 25,000 to 30,000 foreign fighters from as many as 100 countries have travelled to take part in conflicts in Syria and Iraq and 21 percent were from Europe. There is a real fear that these fighters will return to their home States, radicalised and equipped with the knowledge and training to carry out terrorist atrocities in their own countries.
The concern is well founded. At least five of the terrorists who killed 130 people in Paris in November 2015, were radicalised just before travelling to Syria or in the war-torn country itself. And Mohammed Emwazi, known as Jihadi John, moved to the UK when he was six, was responsible for beheading several Western hostages in Syria.
Britain has experienced six terrorist attacks in 2017, five at the hands of Muslim extremists. The sixth attack, which claimed the life of one person and injured ten others, was directed at Muslim worshippers near Finsbury Park Mosque, was committed by Darren Osborne, who had previously professed his hatred for Muslims.
Of the attacks in Britain by radicalised Muslims, only the Manchester Arena bomber, Salman Ramadan Abedi, appears to have travelled to Libya and perhaps Syria. However, all three of the London Bridge attackers had confessed they wanted to travel to Syria prior to committing the atrocity.
The question is, would stripping any of the terrorists involved in these attacks of their citizenship have prevented the atrocities occurring? Or would imprisonment or other sanctions have been just, if not more effective?
Deprivation of citizenship powers
- She considers that deprivation of citizenship is ‘conducive to the public good’, and would not make the person stateless;
- The person obtained his citizenship through registration or naturalisation, and the Home Secretary is satisfied that this was obtained by fraud, false representation or the concealment of a material fact;
- The person obtained his citizenship through naturalisation, and the Home Secretary
- considers that deprivation is conducive to the public good because the person has conducted themselves ‘in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory’; and
- has reasonable grounds to believe that the person is able to become a national of another country or territory under its laws.
In the second and third scenarios, deprivation of citizenship is permissible even if the person would be left stateless.
A Home Office Freedom of Information response in June 2016 revealed that there had been 81 deprivation of citizenship orders made in the years 2006-2015. 36 orders were made because deprivation was conducive to the public good; 45 orders were made because the Home Secretary was satisfied that people had used fraud or false representation to gain British citizenship by registration or naturalisation.
According to a briefing paper entitled: Deprivation of British citizenship and Withdrawal of Passport Facilities held at the House of Commons Library,
“a Home Office Freedom of Information response in June 2016 revealed that there had been 81 deprivation of citizenship orders made in the years 2006-2015. 36 orders were made on the grounds that deprivation was conducive to the public good; 45 orders were made on the grounds that the Home Secretary was satisfied that people had used fraud or false representation to gain British citizenship by registration or naturalisation. In December 2013, the Bureau of Investigative Journalism reported a significant increase in the use of deprivation powers in 2013, in part due to British citizens travelling to fight in Syria.”
Appealing a decision to deprive a person on their British citizenship
Those who are the subject of a deprivation of citizenship order can appeal to the First Tier Tribunal against the Home Secretary’s decision. Appeals must be made to the Special immigration Appeals Commission where the Home Secretary considers that the information she relied on should not be made public.
As passports are issued at the Home Secretary’s discretion, there is no right of appeal against a decision to withdraw passport facilities. However, a person whose passport is withdrawn, may seek a judicial review of the Home Secretary’s decision.
Concerns over Section 40 of the British nationality Act 1981
In 2014, in response to the inability to strip Hilal al-Jedda, an asylum seeker from Iraq, of his British citizenship as it would render him stateless, Theresa May, who was Home Secretary at the time, championed changes to allow sole-British citizens to be deprived of citizenship.
According to Sangeetha Pillai and George Williams’s paper, the House of Lords put up fierce resistance to the idea of leaving a person stateless via denationalisation. Lord Pannick, who led the opposition to the proposal, stated that "[t]here are regrettably all too many dictators around the world willing to use the creation of statelessness as a weapon against opponents and we should do nothing to suggest that such conduct is acceptable” (HL Deb vol 753 col 1169 (7 April 2014).
Many of the best Immigration Solicitors and human rights groups were also concerned about Parliament granting the Executive power to render a person stateless with limited safeguards attached and expressed their worries as the Bill was passing through Parliament. For example, the Joint Committee on human rights recommended that to mitigate arbitrariness, the Bill should be amended to require that, in cases involving statelessness, citizenship revocation be a "necessary and proportionate response” to the prejudicial conduct engaged in by the citizen. This recommendation was not incorporated into the amendments.
Although there is a right of appeal, Sangeetha Pillai and George Williams point out that this does not stop the Home Office stripping a person of their citizenship, deporting them from the UK, and forcing them to mount an appeal from a foreign country. The Supreme Court ruled in R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Byndloss) v Secretary of State for the Home Department)  UKSC 42,  All ER (D) 70 (Jun) that the government’s policy of “deport now, appeal later” was unlawful. Denationalising a person and then deporting them, with no opportunity for re-entry would bring forth the same challenges as highlighted in Kiarie. Therefore, it may be the Courts would rule such draconian methods as unlawful if a challenge under a deprivation of citizenship claim is brought in the future.
The consequences of a mistake being made and an innocent person being left Stateless
If a person is stripped of their British citizenship, they lose the right to rely on the protection of the UK government. A stateless person also cannot be convicted under a country’s judicial process, a factor that has led to devastating consequences for inmates in the Guantánamo Bay detention centre. One of the reasons President Obama was unsuccessful in closing the facility was because of the challenge in resettling stateless citizens.
And in this place of torture and force-feeding, we know of at least one innocent man; Murat Kurnaz, a Turkish citizen who lived in Germany, was held for five years but was later found to be innocent.
The powers of the British nationality Act 1981, section 40 should not be underestimated. For many politicians, the desire to protect British streets from potential terrorist overrides human rights concerns. But what if every country in the world adopted that approach? There is a strong argument that the State has other powers, that carry less severe consequences, that should be employed to deal with potential terror suspects. After all, the right to a fair trial has been enshrined in English law (albeit to a minimum degree) since the Magna Carta of 1215. If we allow people to be stripped of their citizenship, without the right to a hearing and an opportunity to provide a defence, then we are giving up a fundamental principle of our Rule of Law and commitment to human rights.
And the only people who win from this are the terrorists.
“Fear makes the wolf bigger than he is” – German Proverb
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Posted on: Wednesday, 06 September, 2017