Statelessness update: the UK Government makes concession to citizenship-stripping proposals

Just Security has been covering citizenship-stripping proposals on both sides of the Atlantic. In an earlier post, I wrote about the UK Government’s citizen-stripping proposal (“the Proposal”) and the defeat it suffered in the House of Lords in April. I ended with the hope that, given the compelling points made in the House of Lords, it wouldn’t take the House of Commons too long to see the obvious sense in the new amendment. Subsequent events, which have included the enactment of a provision, have shown that my hope wasn’t misplaced, although there is room for debate as to whether the enacted provision goes far enough in protecting against statelessness. The events since April are described below but, first, a small recap.

As noted in my earlier post, the Proposal took the form of a clause in the Immigration Bill by which 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). As Lord Macdonald put it (during the House of Lords’ debate on May 12, 2014, on which see further below):

“The history of this matter is that it appears to have been conjured up to serve an entirely party-political purpose in the midst of a debate in [the House of Commons]. It is illiberal, it is an affront to civilised international relations, it will not improve our security and, in all likelihood, it threatens a legal and diplomatic quagmire, to no useful purpose and to the detriment of the reputation of the United Kingdom.”

Since the Proposal suffered the April defeat in the House of Lords the following events have taken place:

(1) The House of Commons amended the Proposal by adding a clause which provides that before the power can be exercised, the Secretary of State must have “reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.” (“the Amended Proposal”)

(2) The Amended Proposal was considered by the House of Lords on May 12, 2014. Highlights of the debate are set out below (note: such debates can be a significant source of guidance regarding the proper interpretation of a statutory provision, once enacted, pursuant to Pepper v Hart).

  • In presenting the Amended Proposal Lord Taylor of Holbeach (who is responsible for all Home Office business in the House of Lords), accepted that

“The government amendment is now very narrowly drawn—much more so than before—and is targeted at a small number of very harmful individuals.”

  • Lord Pannick sought a “number of assurances” which he considered were “important to the understanding of the protections” in the Amended Proposal:

“The first is this. I understand that the reasonableness of the Secretary of State’s conclusion that another nationality is open to the individual will be open to challenge in the Special Immigration Appeals Commission, and that SIAC will have the power to determine whether the Secretary of State does have reasonable grounds for her belief that the individual is able to become a national of another country. I understand from the Minister’s opening remarks that he agrees with that.

The second assurance I seek is this. Does the Minister agree that the material which is relevant to the Secretary of State’s decision on this point—that is, the ability to acquire another nationality—would be very unlikely to be secret? The material would be provided to the applicant’s lawyers so that it could be fully debated in any appeal to SIAC. I would be grateful if he could confirm that.

Thirdly, am I correct in my understanding that the new provision means that the Secretary of State has no power to take away British citizenship if the matter depends on a discretionary judgment by the foreign state? I think that the words in the new paragraph, “able to become”, must mean that the matter is in the hands of the individual, who needs only to apply to the foreign state, pay the relevant fee, provide the relevant documents and show their entitlement. The paragraph does not say “able to apply”. There is good reason to interpret this provision narrowly: namely, to prevent deprivation of British citizenship where it would leave people in limbo, with the risk of statelessness if the foreign country decides not to exercise any discretion in favour of the applicant. I therefore think that this provision means that at the time of deprivation of British citizenship, the individual must have a right to citizenship under the law of the foreign country. Does the Minister agree?

I seek reassurance on a fourth point. I think that the word “able”, which is the word in the new paragraph, must mean that there is no practical impediment to obtaining the foreign citizenship. For example, if there is reason to think that the foreign state will not apply its own laws, or will not do so within a reasonable time, the Secretary of State simply could not remove British citizenship. Does the Minister agree?

Fifthly, the word “able”, as well as general principles of public law must mean that the Secretary of State could not exercise this new power to take away British citizenship where, although the person is entitled to acquire the foreign citizenship, there is good reason for their being unwilling to do so. An obvious example is where the individual is a member of a group that is persecuted in the country concerned. Does the Minister agree that it would be wholly wrong and unlawful for the Secretary of State, if she accepts that those are the facts, nevertheless to go ahead and deprive that person of British citizenship?

Sixthly and finally, I think that the word “able” and the general requirement that the Minister must exercise her power in a reasonable manner must mean that the courts would apply a “reasonable link” test. By that, I mean that the clause could not be applied by reference to an individual’s rights to acquire citizenship in a country with which he or she has no close link other than an entitlement to nationality. …Therefore, the sixth question is: does the Minister agree in principle that there must be a “reasonable link” test implicit in this paragraph, so that the clause could not be used in circumstances that would, in the absence of a reasonable link, be wholly unreasonable?”

  • Lord Taylor’s reply included the following points:

“Perhaps most important is the whole question of the meaning of “reasonable grounds to believe” and whether those reasonable grounds of belief are appropriate for determining the ability of a person to acquire another nationality. The Home Secretary’s decision must be “reasonable” based on the evidence available to her on the nationality laws of those countries and the person’s circumstances. That will include having regard to any practical arrangements, but those will vary from case to case, and it is not possible or appropriate to speculate about what weight those issues would carry in a particular case. ..

…The key issue will be whether the Secretary of State reasonably believes that they are able to acquire the nationality. It does not say that the person must have a right—an automatic entitlement—to that other nationality. Where there is a discretionary judgment there may be reasonable grounds to believe that the discretion will be exercised. However, reasonableness would require something more than saying that the person should apply for the exercise of a general discretion to grant citizenship to any country that has such discretion. I hope I make myself clear on that. The Home Secretary must have reasonable grounds to believe that, at the end of any application process—if one is required—the person will become a national of another country.

[As to reasonable link test].. In most cases, the decision will be made on the Secretary of State’s assessment of whether the person can reacquire a nationality that has previously been held by that individual. But we cannot rule out circumstances in which a person has recourse to a nationality that they have not held recently. As we have noted, the nationality laws of other countries can be very complex and any decision will be entirely case-specific. …

[As to whether other countries should be about the introduction of the power].. we cannot prejudge which countries will be involved in future deprivation decisions. The circumstances of each case will be different, and it would be impossible to consult all countries on a theoretical question. We need to act in the interests of the national security of the United Kingdom, and what is important is that it is clear that we are acting within our international obligations and under the law. In the context of an individual case, we would not rule out consulting another country, but that must not be a requirement.

I wind up by saying that those who threaten this country’s security put us all at risk. This Government will take all necessary steps to protect the public. This proposal will strengthen the Home Secretary’s powers to ensure that very dangerous individuals can be excluded from the privileges attached to citizenship if it is in the public interest to do so. The Government’s revised proposal—it is very much a revised proposal, based on listening to noble Lords’ contributions in this House—will enable the Home Secretary to deprive in a very limited number of cases…This is not about arbitrarily depriving people of their citizenship. It is a targeted policy to be used sparingly against very dangerous individuals who have brought the action upon themselves by terrorist-related acts. This amendment aligns us more closely with those international commitments as set out in the UN Convention on the Reduction of Statelessness 1961 and the declaration that the UK made in ratifying that convention in 1966. I hope that noble Lords will approve the Commons amendments.

one of the factors that has to be borne in mind by a Home Secretary considering these matters is the question of possible persecution.”

(3) It is questionable whether Lord Taylor’s replies to the searching queries put to him (by Lord Pannick and others) were suitably clear or comprehensive. Nevertheless the House of Lords was apparently sufficiently satisfied by those replies because, following the debate, a vote was taken on the Amended Proposal and it was passed.

(4) Two days later, on May 14, 2014, the Immigration Act 2014 was enacted. The Amended Proposal is included as section 66 (with a commencement date to be appointed). The application of it in practice will undoubtedly be closely followed.

 

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers