Clause 9 in the new bill exempts the government from giving notice if it is not “reasonably practicable” to do so, or in the interests of national security, diplomatic relations or is otherwise in the public interest.
Devyani Prabhat, Professor in Law, University of Bristol – 14 December 2021
A restrictive new immigration law being debated in parliament has huge implications, not only for people seeking asylum in Britain but also for British citizens.
The nationality and borders bill is now in the House of Lords for readings after being debated for only nine minutes in the House of Commons. The bill makes it a criminal offence to arrive in the UK without permission, with a maximum sentence of up to four years. The bill lets the UK send asylum seekers to a “safe third country”, and can allow for offshore processing centres overseas instead of considering their asylum claims in the UK.
In November, home secretary Priti Patel introduced a provision that would allow the government to strip people of their British citizenship without notice.
Citizenship stripping can take place for public interest reasons, mostly connected to national security and counter-terrorism. These decisions come into effect even before appeals can be processed, so it is crucial for the affected person to be notified. The UK has had a recent, significant rise in citizenship deprivations. Most have taken place when the British citizen is already overseas, so they would be unlikely to know about cancellation orders and would find it difficult to appeal.
A well-known recent case is that of Shamima Begum, who went to Syria at the age of 15, and had her citizenship removed. In a recent judgment, the supreme court held that Begum could not return to the UK to challenge her deprivation order in person. While Begum had a right to a fair hearing, this right did not trump all other considerations, such as the safety of the public.
The British Nationality Act 1981 requires the secretary of state to give a person written notice of a decision to deprive them of their British citizenship before a deprivation order can be made. Clause 9 in the new bill exempts the government from giving notice if it is not “reasonably practicable” to do so, or in the interests of national security, diplomatic relations or is otherwise in the public interest.
This gives the government enormous power over British citizens who have another nationality or who may have been born elsewhere. Effectively, naturalised citizens can be made stateless without notice. The government, however, claims that it will not make anyone stateless and will not affect their right to appeal.
The abrupt addition of this provision is particularly concerning, as it was not mentioned in consultations or included in the original bill.
Why now?
Patel’s attempt in clause 9 to take away notice requirements appears to be a direct reaction to the case of D4, a British citizen who was in Syria to allegedly join Islamic State. Her citizenship was cancelled in 2019 and a notice of that decision was placed on her home office file as per a 2018 regulation. D4 knew nothing of the decision to deprive her of her citizenship.
In July 2021, the high court decided that this was not enough notice for removing citizenship. The court found that the 2018 regulation went beyond the powers granted by parliament with regards to serving notice. The judge considered it unlawful – a private act of putting something in a drawer and locking it, rather than actually notifying anyone.
The new clause 9 contains a subsection that renders the provision about secret deprivations retroactive as well, so as to wholly neutralise the effect of the court’s judgment in D4.
The new bill could affect an estimated 6 million Britons who were born elsewhere or have another nationality. This provision makes these citizens far more vulnerable, despite the government’s assertion that these powers are rarely used, and only against the “very worst”.
The government claims that the vast majority of these millions of people are very unlikely to be in war areas fighting against British interests. Yet these powers are framed widely and could indeed be used far beyond the national-security emergency scenario.
Citizenship stripping orders are not obtained from any court or tribunal and are based entirely on the discretion of the home secretary. UK law empowers the home secretary to deprive nationality of British citizens who have another nationality, if the secretary deems it “conducive to the public good”. The home secretary can also deprive naturalised citizens of their citizenship – even if this results in their statelessness – if the home secretary finds “reasonable grounds that the person is able to become a citizen of another state”.
Currently, no other country can make its own citizens stateless by depriving them of citizenship.
The UK’s citizenship deprivation practice affects minorities and those of migrant heritage much more than it does white British nationals born in Britain. The Begum case demonstrated that an appeal against deprivation orders can remain indefinitely suspended. Taking away notification requirements will make appeals even harder. Even without this change, deprivation laws risk alienating minority communities, but with it, potential challenges in courts will be eliminated at source.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
