Deprivation of citizenship – by stealth
June 9, 2011 — Comment
Written by Amanda Weston
Lawyer Amanda Weston, at a seminar at the IRR, described the impact that the loss of appeal rights under deprivation of citizenship clauses has had on those affected and their families.
When David Blunkett informed Abu Hamza of the decision to deprive him of his British citizenship in April 2003, there hadn’t been a similar situation since the case of William Joyce, aka Lord Haw-Haw, in the aftermath of the Second World War, after his prosecution for treason for broadcasting for the Nazis. After 1983, the only basis on which you could be deprived of British citizenship under the 1981 British Nationality Act was if you had obtained it by fraud, false representation or concealment of a material fact. If you were born British, you could not be deprived of citizenship. That is no longer the case. In the wake of September 11, there followed a degree of tabloid and public pressure on David Blunkett, then home secretary, pressing for Abu Hamza to be deprived of his British citizenship, which he had obtained by naturalisation after marrying a British citizen. The so-called ‘Hamza amendment’ changed the law so that a person could be deprived of citizenship if ‘the Secretary of State is satisfied that he has done anything prejudicial to the vital interests of the United Kingdom or a British overseas territory’. We do not know exactly what this means, or what kinds of conduct it covers, as no cases were decided under this provision. In fact Abu Hamza won his appeal under the provision which prevents deprivation of citizenship if the person would become stateless (deprivation applies only where you have another nationality) – so there never was a discussion about what conduct would be caught.
Loss of procedural protections
Most importantly, the 1981 British Nationality Act made it clear that an order for deprivation of citizenship could not be made while the person was appealing against the decision to deprive – only after appeal rights were exhausted. The person remained a British citizen until that point. That is obviously important, as great injustice could be done otherwise. Bringing the provision into effect, David Blunkett told the BBC, ‘I want to deal with people who our intelligence and security people believe are a risk to us. If you encourage, support, advise, help people to take up training, if you facilitate them, then of course that takes you right over the boundary. People have to work to earn citizenship. They will be proud to have it. I’m proud to have done that.’ Shadow home secretary Oliver Letwin said, ‘It’s important to protect the civil liberties of the country.’ So the position in 2003 was that more grounds for deprivation of citizenship were added but the deprivation order was still suspended pending appeal.
There then followed the most incredible sleight of hand. Hidden away in paragraph 4 of schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, with no reference in Hansard at all, was a repeal of the section which continued British citizenship pending appeal against a decision to withdraw it. The Act was not even about nationality, making the provision even less likely to be noticed or debated.
The effect of that is that you are served with an order removing your British citizenship, almost immediately after the notice of intention to deprive you of it, and you cease to be a British citizen then and there, whether or not you appeal. The justification the Secretary of State gave for that amendment was that it would allow deprivation and deportation proceedings to take place concurrently. But in fact, a FOI (Freedom of Information Act) application by a journalist demonstrated that there was no instance of concurrent deportation and deprivation appeals, because in every single case of a deprivation decision since the amendment, the Secretary of State has waited until the person has left the UK to serve notice of the decision. The officials might know through surveillance that you have left the country and have the decision all ready to go, once you have left. So you leave the country quite legitimately, on your British passport, perhaps on holiday with the kids – and then, once you have left the country, they serve you with the notice of intention to deprive you of British citizenship. When I say ‘serve’, obviously if you are away on holiday they might just post it to your home address, and you might or might not know it has arrived. Generally, officials are required to send immigration decisions by recorded delivery, but there is no such requirement under the nationality notice provisions. We are now seeing how an accumulation of procedural gaps lead to a very unfair situation. So the decision is made, ‘served’ but you know nothing about it; a day later, when you still know nothing about it, the deprivation order itself is ‘served’, and from that moment you are not a British citizen. With that order, or within a day or so, may come a decision excluding you from the UK at the discretion of the Secretary of State, and when that decision is served, or before, it is the practice to send out warning notices to the ports and to the airlines, the carriers, the border posts, indicating that you are not a person who is entitled to travel on a British passport. From here on, you find yourself in a completely impossible situation. You cannot return; you might or might not know about the notice, and the procedures as they stand mean that you might not find out about it until it is too late for you to appeal. You might think that the appeal bodies – the Tribunal or the Special Immigration Appeals Commission – would readily agree to extend time in this situation to allow people to appeal. That is not the case, and in one case I have been involved in, there has been ‘closed’ evidence on the issue of whether there has been valid service, turning on the issue of whether a brother-in-law had contacted the person by phone abroad to let him know.
Impact on families
While I can’t name names or go into details of the cases that I or my colleagues have been involved with, I can give you a general picture of the consequences that loss of appeal rights have for the families of men so denied. Imagine mum, dad and the kids have all gone on holiday, and dad suddenly loses his citizenship and is unable to return to the UK. Mum is put in a difficult situation – is she going to come back, if she still has a passport? She might not be a British citizen, she might be a person who has leave contingent on her husband’s status, or she might be in the two-year probationary period for partners of those settled here, or for some other reason she might have no secure status of her own. She might not be able to get back, and the kids, who might be British citizens, might be unable to get back – that has happened in a number of cases. Or mum is put in the situation, if she does have her own status, where she has to take the decision whether to come back without her husband. Families have lost their housing, because they can’t get back, they have lost their homes, their possessions, if they have no family members who can take care of their affairs in the UK; kids lose their places at school, they lose their friends; or they have to live in limbo, where they don’t know what’s happening, the appeal proceedings stretch off into infinity, the Secretary of State is constantly asking for extensions of time to make her case good, this is the case that should have been in pretty good order when they made the decision in the first place.
It is hard to believe that there has been so little scrutiny of these measures. Although the Joint Committee on Human Rights heard evidence and there was a discussion of the widening of the criteria for deprivation of citizenship, there was no discussion about removal of the suspensive appeal right. The truth remains that it has not been given proper scrutiny, by any of the democratic bodies or by the courts.
In 2006 there was one deprivation (when the person was outside the UK), in 2007 there was one, in 2008 none, in 2009 two (one outside the UK), and in 2010, five, all when the person was outside the UK. I know there have been at least another four since. The nationalities of those affected were as follows: one Australian (former Guantánamo prisoner David Hicks), an Iraqi, a Pakistani, an Albanian, two Sudanese, a Russian, an Egyptian and a Lebanese. The common denominator is that by far the majority if not all are Muslims.
In 2006, Parliament widened the basis for deprivation of citizenship, to make it directly equivalent to the very wide, subjective test for deportation. The Secretary of State may now deprive someone of citizenship, if satisfied that it is conducive to the public good. The wording is important because of the House of Lords’ ruling that the courts must show deference to the Secretary of State’s view of what is conducive to the public good in national security cases, limiting the extent to which the decision can be challenged. So the only surviving protection from deprivation of citizenship is that you cannot lose British citizenship if it is your only citizenship. I had a huge shock when I had to do my first case about this amendment, which went through with no public outcry except for an article in the Times entitled ‘Why is there no song and dance about this Act?’, by Nicholas Blake QC, now a High Court judge, who said:
‘Citizenship has long been a guarantee that a person is not subject to the battery of intrusive and repressive measures available under the immigration legislation, notably deportation. However, the legislative barrage of the last five years, linking immigration, asylum and terrorism, has broadened the basis for deprivation of citizenship … the language used for deprivation, ‘conducive to the public good’, is telling. This is the term used in the immigration acts to justify the deportation of non-citizens. [The new provisions] enable the Secretary of State to deprive anyone of the right of abode on similar grounds, or to refuse citizenship to anyone of ten or over on character grounds’.
The sort of conduct which might come under this includes ‘extremism’, quite a troubling concept – one person’s extremism is another person’s adherence. It is difficult to know without a safe definition where one ends and another begins, and who gets to judge. It is worrying that there is no recognition or protection of the right of dissent in the context of acquiring or losing citizenship – there is real fear in migrant communities, for example about demonstrating anger about Afghanistan, which can in itself get you into trouble. If communities are frightened to speak out about things like that, while the rest of us can, it fosters division.
It is very worrying, the vagueness of the terms that are relied on. The whole issue of these deprivation measures and how they are applied is a massive subject for debate – but the problem is, there hasn’t been a debate. There has been no debate about the impact these measures are having on communities, or about how families can be protected from the unfair consequences flowing from the lack of procedural protection. British citizens can be deprived of citizenship and deported without being convicted of anything. My colleagues in chambers dealing with serious crime have a lot of respect for senior police they deal with. But the security service officials making assessments for the UK Border Agency often appear to be parochial and ignorant people who do not know the communities whose members they are impugning, and have not taken steps to find out what goes on in those communities, and there is no structural basis to ensure that people making the decisions understand those communities.
My standard advice is to warn people not to leave the country if they think there is any reason why the Secretary of State might not like them or their beliefs. It seems to me that freedom of movement no longer exists for certain categories of people. I would like to know how many people in affected communities feel their freedom of movement or their ability to express their views has been curtailed.
There are a number of legal challenges currently going through the courts to deprivation of citizenship while people are out of the country. And the MK case, which is not about deprivation of citizenship but residence rights, is also significant. The facts are as follows. MK, who had lived a blameless life in the UK, was extradited to Italy and then acquitted there, and the question was whether he was entitled to come back to join his wife and children here. He was released by the Italian authorities, given his documents and told to leave the country within five days, but was served with a decision that his indefinite leave to remain in the UK had been rescinded and that he could only appeal from abroad. The ports were notified that he was not entitled to enter, and his refugee travel document was cancelled at the same time. He was not aware of it, as although a document had gone to his solicitor in the UK he was in an Italian detention centre at the time, and linguistic problems meant he was not notified by them. So he was arrested when he arrived back in the UK. But the courts held that the prerogative power of exclusion could not be used as a kind of trump card to override statutory appeal rights.
Crucial in this case was the fact that MK’s indefinite leave did not lapse when he left the UK, The suspensive effect of the appeal framework against deprivation of residence rights meant that he was entitled to come back to the UK and exercise his right of appeal, and he did not need permission to do that. But people who are deprived of citizenship, on the contrary, do not have suspensive appeal rights. And if you have been prevented from getting back to the UK to present your appeal, in a case which may well turn on your credibility as to whether you are a terrorist or not, the chances of succeeding on appeal are in such circumstances slim, to say the very least. You have no opportunity to explain in person, to a judge who wants to hear from you about why you did this, why you signed up to this website or associated with that person, you need that opportunity to provide an innocent explanation. So if you are deprived of that, it becomes a self-fulfilling prophecy. Add that to the closed evidence procedure, by which you often see very little of the evidence against you and the question is, just how unfair does the appeal process have to be before it becomes an utter waste of time?
Finally, I just wanted to say something brief about European citizenship. It is a developing concept, but there are increasingly opportunities for the European Court of Justice to get involved in these kinds of decisions by member states – because when you deprive someone of their British citizenship (or citizenship of any member state) you are also depriving them of their citizenship of the European Union, which is separate and free-standing. Over the next few years we will see a lot more focus on the protection that the European provisions can provide against the excesses of member states responding to tabloid pressure.
Amanda Weston is a human rights lawyer at Tooks Chambers.
This speech is based on a seminar on 'Deprivation of citizenship - by stealth' held at the IRR earlier this year.
Footnotes:  Abu Hamza was a preacher at Finsbury Park Mosque who called for jihad against corrupt Middle Eastern regimes. He became notorious for co-organising a conference praising the September 11 bombers. He was arrested in 2004 and jailed for seven years in 2006 for inciting murder and racial hatred in his sermons.  In the case of Rehman  UKHL 47, available here.  Nicholas Blake, 'Why is there no song and dance about this Act?', The Times, 25 April 2006.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.