Keeping K2 (European Human Rights Court Decision on Citizenship-Stripping) in Perspective

Yesterday, the European Court of Human Rights (ECtHR) in Strasbourg rejected as inadmissible an application by K2, a terror suspect born in Sudan but who acquired British citizenship by naturalization. At first glance this admissibility decision might seem to be of general significance but it is actually highly fact-specific and does not substantively address the single material general issue of principle raised by the applicant, i.e. the potentially discriminatory effect of the relevant citizenship-stripping laws. This is unsurprising since admissibility decisions – initial decisions about whether an application satisfies the stringent admissibility criteria and should proceed to be considered on its merits – are rarely of general significance, and this is especially so when, as in this case, the application is deemed inadmissible. It would be odd, therefore, if, as opined by the Guardian, the decision “is likely to encourage Home Office ministers to make greater use of their power to exclude terror suspects even if they are British citizens.”

Article 8

K2 complained that the Home Secretary’s decision to deprive him of his British citizenship violated his Article 8, ECHR right to respect for family and private life. The decision to deprive him of his citizenship was taken pursuant to the statutory power in section 40 (2) of the British Nationality Act 1981.

The ECtHR assessed this complaint by reference to established principles: by asking whether the revocation was arbitrary (i.e. was it in accordance with the law, was it accompanied by necessary procedural safeguards and did the authorities act diligently and swiftly) and by considering the consequences for the applicant.

The ECtHR held that the revocation was not arbitrary. The principal issue that it considered in this regard was the adequacy of procedural safeguards on the facts of the applicant’s case. The ECtHR also held that the consequences for the applicant did not violate his Article 8 rights because, for example, he was not rendered stateless by the deprivation of British citizenship (see here and here my 2014 posts on statelessness and citizenship stripping) and because his wife and child could visit him in Sudan or relocate there. The Article 8 claim regarding the decision to deprive K2 of his British citizenship was, therefore, held to be manifestly ill-founded. 

Similarly, the Article 8 claim regarding the Home Secretary’s decision to exclude him from the UK was manifestly ill-founded.

Article 14

K2 also complained that there had been a violation of the prohibition of discrimination in Article 14 (read together with Article 8). The ECtHR rejected this claim too.

It rejected K2’s claim that he had been treated differently from a non-national resident because he was denied an in-country right of appeal: the ECtHR held that the reason he had been denied the right of appeal was not because he was a British citizen but because he had chosen, voluntarily, to leave the UK.

More significantly, the ECtHR also rejected K2’s complaint that he had been treated differently from a British citizen considered a threat to national security but who did not hold a second nationality. However, the Court did not substantively address this complaint – essentially the only part of the case that could have been of general significance. The ECtHR rejected this complaint on the technical ground that K2 had not raised it before the domestic, English courts and he had, therefore, failed to exhaust domestic remedies (a pre-condition for a claim to be admissible before the ECtHR). Thus, the only material principled point in the case was not substantively decided.

Image: Getty

 

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers