DEPRIVATION OF CITIZENSHIP
Stripping someone of their citizenship is a radical measure, and therefore unsurprisingly, any changes to the law that are due to increase the government's powers in that respect, are due to attract public attention and scrutiny.
The House of Commons has recently approved the Nationality and Borders Bill. The Bill will now go to the House of Lords who are due to debate it on 5 January 2022. The Bill includes a controversial amendment to section 40 of the British Nationality Act (BNA) 1981, which in certain circumstances will allow the Home Office to deprive someone of their British citizenship without first giving them a notice.
The Home Office previously introduced the same change through a back door by publishing some regulations, without changing the BNA 1981 itself. However, this was challenged in court and the High Court judges' decision pointed out that the BNA 1981 requires a written notice and it could not be met by simply putting a notice to file. Following this court challenge, the Home Office decided to introduce the changes by amending the BNA 1981.
Since July 2021, when the Nationality and Borders Bill was first introduced in the House of Commons, there have been an unprecedented number of articles published in the press and social media by journalists, lawyers, various charities, and the general public, expressing their concerns that someone's British citizenship can be taken away without prior warning.
The public outcry on the matter was so strong, that the Security and Borders Minister, Damian Hinds, decided to publish a letter in the Guardian to address this matter. Mr Hinds stated: 'Removing British citizenship on grounds of being "conducive to the public good" is used against the most dangerous of people, such as terrorists, extremists and serious organised criminals. (...) We would always try to notify someone, but this may not be possible in exceptional circumstances – such as if they're in a war zone, their location is unknown, or it would reveal sensitive intelligence sources.'
DEPRIVATION OF BRITISH CITIZENSHIP – SOME HISTORY
The power has been introduced since the 1914 British Nationality and Status of Aliens Act. The 1914 Act introduced provisions dealing with deprivation of citizenship that empowered the Secretary of State to revoke a naturalisation certificate obtained by fraud, false representation or concealment of material circumstances. In 1918, extended powers of deprivation were introduced, targeting naturalised Britons of German origin.
The Secretary of State also gained the power to revoke certificates in cases of treason or disloyalty. Other grounds of loss included residence abroad for longer than 7 years and being sentenced to prison for longer than 1 year within 5 years after naturalisation. Most cases of deprivation were due to residence outside of the Kingdom and not because of fraud or treason.
Following the UK's ratification of the 1961 UN Convention on the Reduction of Statelessness, the possibility to be stripped of citizenship on grounds of residence in foreign countries was removed from the law and citizenship deprivation in case of criminal conviction was allowed only in situations where it would not lead to statelessness.
The 1981 British Nationality Act did not bring changes to the rules on loss of citizenship. Registered or naturalised citizens were liable to lose their status if (1) citizenship had been obtained by fraud, misrepresentation or concealment of a material fact; (2) were disloyal to the Queen; (3) had assisted the enemy in time of war or,(4) in the past five years after naturalisation, had been sentenced to at least twelve months imprisonment in any country.
In 2002, Section 40(2) of the British Nationality Act 1981 allowed the Secretary of State to deprive by order "a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of the United Kingdom or a British Overseas territory.' However, because section 40(4) restricted the power of the Secretary of State only to cases where the person would not become stateless due to loss of British citizenship, the provision applied only to dual nationals.
Following changes in the law brought in 2004, when someone is served with an order removing their British citizenship, the effect of the order is no longer suspended until the appeal rights are exhausted. This means that the person deprived of citizenship whilst abroad is unable to return to the UK to carry out their appeal.
Since 2006, the Home Secretary has had the power to strip dual nationals of their British citizenship if doing so is deemed to be "conducive to the public good".
In 2014, the powers were extended to British citizens without dual nationality, who can be made stateless so long as the Secretary of State believes they are eligible for foreign citizenship and they have 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."
In 2019, the former Islamic State supporter Shamima Begum, who was born in London as a British citizen, was stripped of her UK citizenship. Although Begum did not possess a foreign passport, the home secretary at the time argued that she would not be rendered stateless, because Bangladesh (the country where her parents were born) considers anyone born to a Bangladeshi parent to be a citizen from birth until the age of 21. In February 2021, the Supreme Court ruled in favour of the Home Office's decision to bar Begum from returning to the UK to appeal her loss of citizenship.
THE CURRENT GROUNDS FOR DEPRIVATION
As per the recently published on 03.12.2021 'Nationality and Borders Bill: Deprivation of Citizenship Factsheet' the current grounds of deprivation are summarised as follows:
'1. Deprivation of citizenship on 'conducive to the public good' grounds is reserved for those who pose a threat to the UK or whose conduct involves very high harm, for example in response to activities such as those involving:
- national security including espionage and acts of terrorism
- unacceptable behaviour such as the 'glorification' of terrorism
- war crimes
- and serious and organised crime
According to the Home Office 'This is used sparingly and against those who pose a serious threat to the UK and cannot leave anyone stateless. The Home Secretary decides each case personally.'
2. Deprivation of citizenship on 'fraud' grounds is for those who obtained their citizenship fraudulently and so were never entitled to it in the first place.'
SOME STATISTICS ON BRITISH CITIZENSHIP DEPRIVATION
According to information published in (PDF) Citizenship in times of terror: citizenship deprivation in the UK (researchgate.net),'in 2002 the UK government confirmed that 'the deprivation power had been used rarely – at that moment, the last case of deprivation had taken place in 1973.'
How many deprivation decisions have been made in the past decade or so? In a FOI request made in 2016, the Home Office confirmed that 'Our records indicate that 81 deprivation decisions were made from 2006 to 2015.
The Independent published an article in February 2019 claiming that the number of deprivation decisions increased 600% during the past year. In the same article there is information that 150 people were deprived of British citizenship since 2010.
In 'The Nationality and Borders Bill: Deprivation of Citizenship Factsheet', published on 03.12.2021, Priti Patel stated that 'From 2010 to 2018 (the latest figures on record), on average only around 19 people a year were deprived of their citizenship.'
THE NEW LAW – NATIONALITY AND BORDERS BILL
In late July 2021 the High Court decided that it was a breach of the current law when the Home Office served a notice of deprivation of citizenship to file D4-v-SSHD-Final-Judgment-30.7.21.docx (live.com) . The High Court reminded that according to Section 40 (5) of the British Nationality Act 1981, before making a deprivation order in respect of a person, Secretary of State must give a written notice specifying that the decision to make an order has been made, the reasons for it and the right of appeal. Following the Court decision, the government decided to make amendments to the British Nationality Act 1981 and those amendments are currently in the Parliament.
For ease of reference, I quote below the new controversial section 9 of the Nationality and Borders Act, which inserts Subsection (5A) in the BNA 1981 that allows the Secretary of State in certain circumstances to deprive a person of British nationality without notice. The conditions for this are as follows:
'(a) the Secretary of State does not have the information needed to be able to give notice under that subsection,
(b) it would for any other reason not be reasonably practicable to give notice under that subsection, or
(c) notice under that subsection should not be given— (i) in the interests of national security, (ii) in the interests of the relationship between the United Kingdom and another country, or (iii) otherwise in the public interest.'
As we can see from the above, the powers to dispose of the requirement to provide notice are quite broad, including if it is considered by the Secretary of State to be 'otherwise in the public interest'.
RIGHT OF APPEAL
When the case is certified by the Home Office as a national security matter, the right to appeal is to the Special Immigration Appeals Commission (SIAC'). For other deprivation cases, appeals are made in the first instance to the First-tier Tribunal.
An appeal against deprivation entails a full reconsideration of whether the deprivation order should have been made.
Critics point out that in practice it may be difficult to bring an Appeal by those deprived of citizenship whilst they are abroad and who learn of the decision long after it was made by the Secretary of State.
CONCLUSIONS
There is undoubtedly quite significant distrust towards the Home Office expressed by the public, developed as a result of the Home Office policies and decision making. The Home Office made some recent attempt at improving their decision making by introducing in November 2021 the first Home Office guidance on 'Ethical decision-making'. We have written about this in one of our previous blogs Home Office first 'Ethical Decision-Making Model' guidance (thaxtedlegal.com) .
The UK government has frequently stressed over the past few years that they want to attract the brightest and innovative talent from around the globe. On the other hand, they try to stop those less bright or wealthy from coming to the UK. However, with the help of the Human Rights Act those less desirable migrants frequently win their cases against the Home Office. The government is proposing a new Plan to Reform the Human Rights Act though so this is likely to change in the government's favour.
LIST OF THE SOURCES:
(PDF) Citizenship in times of terror: citizenship deprivation in the UK (researchgate.net)
Deprivation of citizenship – by stealth – Institute of Race Relations (irr.org.uk)
CCWD FOI 38734 Final Response.pdf (whatdotheyknow.com)
D4-v-SSHD-Final-Judgment-30.7.21.docx (live.com)
Plan to reform Human Rights Act – GOV.UK (www.gov.uk)
Nationality and Borders Bill – Parliamentary Bills – UK Parliament
Nationality and Borders Bill: Deprivation of Citizenship Factsheet – GOV.UK (www.gov.uk)
9 Notice of decision to deprive a person of citizenship (extracts)
(1) In this section, "the 1981 Act" means the British Nationality Act 1981. (2) In section 40 of the 1981 Act (deprivation of citizenship), after subsection (5) (which requires notice to be given to a person to be deprived of citizenship) insert—
"(5A) Subsection (5) does not apply if it appears to the Secretary of State that— (a) the Secretary of State does not have the information needed to be able to give notice under that subsection, (b) it would for any other reason not be reasonably practicable to give notice under that subsection, or (c) notice under that subsection should not be given— (i) in the interests of national security, (ii) in the interests of the relationship between the United Kingdom and another country, or (iii) otherwise in the public interest.
(3) In section 40A of the 1981 Act (appeals against deprivation of citizenship), for subsection (1) substitute— "(1) A person— (a) who is given notice under section 40(5) of a decision to make an order in respect of the person under section 40, or (b) in respect of whom an order under section 40 is made without the person having been given notice under section 40(5) of the decision to make the order, may appeal against the decision to the First-tier Tribunal."
(7) A person may appeal against a decision to make an order to which subsection (5) applies as if notice of the decision had been given to the person under section 40(5) of the 1981 Act on the day on which the order was made or purportedly made.
Originally published 22 December, 2021
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