Guest post by Celia Rooney, currently enrolled in the Graduate Diploma in Law at City University, a member of Lincoln’s Inn at Court, and an alumna of the University of Glasgow and the University of Oxford BCL.
On Monday, 10 February, the House of Lords debated the Immigration Bill currently before Parliament. Shortly before, on 30 January 2014, the House of Commons had voted (overwhelmingly, 297 to 34) in favour of a last minute amendment to the Bill, made by Home Secretary, Theresa May. If passed, it will allow the Home Secretary to revoke the British citizenship of terror suspects, even where doing so would render them stateless.
The Legal Position
Contrary to the Government’s ubiquitous sound bite, citizenship is a right―not a privilege. This is true, at very least, to the extent that the UK continues to pledge its allegiance to the aspirational rights set out in the Universal Declaration of Human Rights (Article 15) and the International Covenant on Civil and Political Rights (Article 24(3)). Although these provisions do not guarantee individuals the right to British nationality, once they have acquired such a status, it must not be arbitrarily revoked. The UK is also signatory to the 1961 UN Convention on the Reduction of Statelessness, in which article 8(1) prohibits the deprivation of citizenship where it would render the individual stateless. The UK, however, secured an exception to this general principle―as allowed by Article 8(3) of the Convention―which states that revocation is possible where the individual ‘has conducted himself [sic] in a manner seriously prejudicial to the vital interests of the state.’
At present, the UK government already has extensive powers to revoke the citizenship of dual nationals. Until 2002, this power only extended to citizens who had acquired their nationality via the process of naturalisation or registration, and the grounds of revocation were extremely limited. Section 4(2) of the Nationality, Immigration and Asylum Act 2002, however, extended the reach of those powers to all British citizens―naturalised or born in the UK. This was followed by section 56(2) of the Immigration, Asylum and Nationality Act 2006 (inserted into section 40(2) of the British Nationality Act 1981) which allowed for the revocation of citizenship of any British national so long as the Home Secretary was satisfied that the individual’s presence in the UK was ‘not conducive to the public good.’
The Home Secretary is not, however, able to annul citizenship where it would render an individual stateless (section 40 (4) of the British Nationality Act). This was confirmed in the case of Al-Jedda, where the Supreme Court made it clear that the reasons why Mr Al-Jedda would not have another nationality at the time of revocation were irrelevant under the present law. If passed in its current form, the Immigration Bill would repeal section 40(4), avoiding the result in that case. Essentially, the Bill would entitle the government to revoke citizenship―even where it would render the individual stateless―if that person's conduct was considered to be ‘seriously prejudicial to the vital interests of the state.’ This test, which is stricter than the ‘not conducive to the public good’ test required for dual nationals, mirrors the wording of the UK’s exception to the 1961 Statelessness Convention. The Home Secretary has thus tried to insulate the amendment from legal challenge.
A few points, however, are worthy of note in this regard. Firstly, the 1961 Convention exception requires both a high threshold of the ‘vital interests’ test, as well as conduct contrary to those interests. So far, Theresa May has targeted terror suspects―but it is likely that suspicion alone, in the absence of prejudicial conduct, is insufficient to allow lawful removal of citizenship. Secondly, the exception that the UK secured on accession only related to revocation from naturalised citizens. Britain cannot deprive those born in the UK of nationality while fulfilling its Convention obligations. Thirdly, the Convention exception requires that the law in question existed at the time of accession. As Amal de Chikara, writing for the European Network on Statelessness, has highlighted, although such a law was in place in 1961, it has since been amended. For years, the ‘not conducive to the public good’ test has been applied―a test that would breach the Convention if not for its current exception where revocation would render the individual stateless. Whether or not the current proposal will be compatible with international law may thus depend on whether the UK is allowed to revert to its previous position.
An Increasing Trend
Whatever the legality of citizenship revocation, its morality will always be questionable. Hannah Arendt aptly described statelessness as a condition that deprived people of the ‘right to have rights.’ Those who find themselves outside the sovereign system of states are often in legal limbo. Not only would a decision by Britain to expand its power to revoke citizenships set a poor example for other countries, it would be unwise to assume that its use will remain exceptional.
Indeed, citizenship revocation appears to be à la mode, particularly under the coalition government. The Bureau of Investigative Journalism has reported that, since the coalition came to power in 2010, 36 individuals with dual nationality have lost their British citizenship―with 20 revocations last year alone-- compared to only five in seven years under the previous Labour Government. In the vast majority of cases, the Home Secretary rescinded the individual’s citizenship while he or she was abroad, most notably from those who recently travelled to Syria. Under these circumstances, individuals struggle to launch an appeal against the revocation decision and, where a challenge is launched, they must await the result abroad.
The result is often devastating. British national Madhi Hashi, for example, had his citizenship cancelled while in Somalia. After being detained by the US, he was extradited to Djibouti, where he remains incarcerated. The UK government have refused to help locate him or advocate his return on the basis that he is no longer British. Other examples include Bilal al Berjawi and Mohamed Sakr, who were killed in Somalia by a US drone strike after they had their citizenship annuled by Theresa May.
Challenging the National Security Logic
Given the hardship that statelessness entails, why has the Home Secretary pursued the policy so obstinately? As well as Theresa May’s evident frustration with the Al Jedda decision, national security is clearly being offered as a justification. Such considerations are, by their nature, sensitive and undisclosed, and thus it may be unfair to speculate on the risk that particular individuals may or may not pose. But does the security logic withstand scrutiny when considered from a more theoretical standpoint?
The ‘indefinite detention of terrorist suspects’ saga, and the decision of the House of Lords in Belmarsh, may shed some light in this regard. In that case, indefinite detention was successfully challenged. The court questioned the national security rationale offered by the Government for internment. Firstly, the policy did not apply to British nationals, despite the clear risk (post-7/7) of ‘home-grown’ terrorism. Secondly, detainees were free to leave, as long as they left the UK. It was clear to the court, therefore, that the Government’s aim was deportation rather than detention.
In a similar vein, the national security justification for citizenship revocation, where individuals would be left stateless, is flawed. Stateless individuals do not simply disappear. It is unlikely that any of the UK’s allies will be enthusiastic about the prospect of housing stateless terrorist suspects. Instead, such individuals may well end up in countries where any terrorist affiliation they have is allowed to flourish. In essence then, such a policy may well undermine national security―exporting terrorism abroad where we are unsure of the long-term impact that this may have on the UK.
Citizenship as Security: Constituting Citizens via Exclusion
Examining citizenship revocation in the US, Israel and the UK, Shai Lavi has argued that in the UK, the model of citizenship has shifted from ‘traditional notions of allegiance to a new paradigm of risk management.’ Current provisions do not require any conduct on the part of the individual. In an age of risk and prevention, suspicion alone is sufficient. The criteria for citizenship revocation have become increasingly similar to those for deportation, so much so, that the ‘not conducive to the public good’ test is lifted directly out of the Immigration Act 1971 (section 5b). This reflects our model of citizenship itself, which is defined by the management of risk and migration.
In such an age, where nationality is equated with security, is citizenship deprivation purely symbolic? Mary Bosworth and Mhairi Guild have noted the way that migration control has been used to construct a notion of ‘Britishness,’ saying that:
"[t]here is, in other words, a constitutive as well as an exclusionary element to the immigration and nationality discourse in the United Kingdom: in the process of identifying those who are denied certain rights, the form and basis of these rights have been simultaneously established and formalized…"
Applying this line of reasoning to citizenship revocation, it becomes clear that in redefining the ‘them’, we also re-establish what we believe it is to be ‘us.’ While previous work has focused on the idea of citizens vs. non-citizens, the issue of stateless terrorist suspects reminds us that these questions of identity run far deeper than the labels that we rely on. If nationality can be revoked, and individuals left stateless, being a citizen is no longer enough to ensure protection in the state system. Indeed, it seems that UK citizenship is no longer enough to be ‘British.’
How to cite this blog post (Harvard style):
Rooney C (2014) Stateless Terrorists: Citizenship in an Age of Risk. Available at: http://bordercriminologies.law.ox.ac.uk/citizenship-in-an-age-of-risk/ (accessed [date]).