Obama placed limitations on the drone war aimed at reducing the number of civilian casualties. But will those rules survive Donald Trump?
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The background: On Monday, the UK House of Lords dealt a blow to Home Office plans to give Theresa May, Home Secretary, the power to make terror suspects stateless by removing their British citizenship if their behaviour is considered ‘seriously prejudicial’ to UK interests.
May has the power under existing laws to strip the UK nationality of British citizens, but it is illegal to leave a person stateless, effectively meaning the power can only be used against people who hold dual nationality. Since 2006, the UK has stripped 27 individuals of their citizenship on the grounds that their presence in the UK was not conducive to the public good.
In the January the government introduced a last minute clause into the Immigration Bill currently going through parliament which would allow the Home Secretary to make certain terror suspects stateless. The government has argued that it needs the powers to deal with urgent terrorist threats.
This Friday, April 11, between 1.30pm and 2.30pm BST (GMT+1), we are holding a live Q&A about deprivation of citizenship, one of the Bureau’s areas of investigation. You can submit questions to our experts by emailing us at [email protected], by commenting on this story, or by tweeting us @TBIJ using the hashtag #TBIJQandA.
Matthew Gibney is associate professor of politics and forced migration, and a fellow of Linacre College Refugee Studies Centre at Oxford University.
Matthew specialises in the political and ethical issues raised by refugees, citizenship, and migration control. His published research has dealt with issues of asylum, deportation, citizenship, globalisation and statelessness.
He has given keynote lectures across the world and his work and views have been cited by the New York Times, the BBC, the Australian, the Toronto Globe and Mail and CBC Radio in Canada, amongst other media. He has held visiting professor positions at Monash University, the University of Toronto, and the University of New South Wales. He was Director of Oxford’s International Summer School in Forced Migration for almost ten years.
Amanda Weston is a barrister at Garden Court Chambers. Amanda practises across a wide range of public and administrative law fields with an emphasis on civil liberties and vulnerable client groups. Her public law practice includes deprivation of citizenship, human rights and discrimination.
Having been instructed in many of the leading cases on deprivation of citizenship for national security reasons, this has become a niche specialism for Amanda who has been involved in driving the case law on procedural fairness in this developing area. Amanda was a guest on BBC Radio 4’s Law in Action in March 2013 speaking about deprivation of citizenship and the rule of law. She also writes and lectures on the subject.
Alice K Ross is a Bureau journalist who has been closely following developments in the use of deprivation of citizenship and the Home Office’s plans to expand its powers.
Alice is also project leader of the Bureau’s work on drones. Along with the other members of the Bureau’s drones team, she won the Martha Gellhorn Prize for Journalism in 2013 for the Covert Drone War project. The team was also shortlisted in the Foreign Press Awards 2011. She worked as a freelance reporter and editor before doing an MA in Investigative Journalism at City University London and won the university’s Richard Wild prize for journalism in 2011.
The Questions and Answers:
The first question comes from Kirsteen Shields via Twitter:
— Kirsteen Shields (@drkirsteen) April 11, 2014
Matthew Gibney: There are two real advantages: one is deterrent (though it’s hard to see that this has been important in the reckoning of the Home Secretary since the power is not widely advertised): the prospect of statelessness makes the implications of being implicated in terrorist types of offences much more dangerous to any individual.
The other advantage is that the UK government, which already has broad powers to strip citizenship from dual nationals, can increase the reach of those powers by now being able to use deprivation powers against single national UK citizens as well. Statelessness causes problems for the UK state if the individual concerned is in the UK (because there is nowhere that an individual can be deported); but this power is likely to be confined in practice solely to individuals who are overseas, undermining, inter alia, their right to reenter the UK.
Alice K Ross: Under the current laws, the Home Secretary can only remove someone’s citizenship if it won’t make them stateless – so in practice the orders can only be used on dual nationals. The new proposed law would remove this restriction, as long as people are naturalised British citizens – so not British-born.
But a number of people who have lost their citizenship have claimed they were actually made stateless, and proving whether someone has a particular nationality is often extremely complex.
More broadly, the advantages to the Home Office of removing someone’s citizenship are that it allows the Home Secretary to prevent someone from coming back into the country, if they’re abroad at the time (which almost all the case we’ve identified have been). When someone is inside the country it’s not quite so clear what the benefits would be – it would allow the Home Office to restrict their ability to work and so on, but it’s not clear how that helps national security.
AW: I think the potential key advantages are also
(i) preventing the ease of travel that a British passport may provide including visa free travel;
(ii) rendering a person a ‘rights free zone’
so they can be targeted for killing or other unlawful conduct such as rendition without a state’s protective duties as regards the treatment of its citizen, and no consular responsibilities.
However, targeting particular communities for this treatment is obviously going to alienate them and operating a programme of arbitrary deprivation, failing to provide fair redress and judicial scrutiny will exacerbate support for the idea that the UK state acts unlawfully and thus legitimise terrorism in the eyes of those from that community who might otherwise have supported state legitimate tactics against terrorism.
The next question came by email, from Damian Hockney:
In practice, what does the stripping of someone’s status like this mean, assuming they do not have dual citizenship? If someone was previously a British citizen and no longer has access to any usable ID, do they have to remain where they are, in limbo, and rely on the goodwill of the country in which they happen to be? Can they gain access to their UK bank accounts? It seems that without the ability to actually gain access to some things, they have no powers to challenge, limited ability to get support and possibly face major hardships where they are.
Amanda Weston: It is correct that if people do not have satisfactory proof of identity and do not have a state to provide them with such proof then they would have to hope that whatever state they were in was fully aware of its obligations under the 1954 and 1961 statelessness conventions and provided them with some form of identification document. Of course, determination of entitlement to such a status may take some time and serious questions arise as to how that person could prove their identity in the mean time. So I agree – major hardships.
AKR: The House of Lords has recently been grappling with what statelessness might mean for the individual in practice – Guy Goodwin-Gill, an Oxford University professor of immigration law, has written an influential memo claiming that if other countries accept people into their territory on the basis of their British passport, and the government then revokes that passport, it could put Britain in breach of its international obligations and other countries could effectively deport them back to Britain anyway.
The one man who has successfully argued he was left stateless, Hilal al Jedda, found himself stuck as you say in limbo, and has been living without documents in Turkey for the past six years. It’s a very vulnerable position to be in.
MG: The practical effects of statelessness have been well-charted by Brad Blitz at Middlesex University. He writes: “Stateless people face innumerable barriers, and wider societal and political challenges are posed by their exclusion. Obstacles include the denial of opportunities to: establish a legal residence; travel; work in the formal economy; send children to school; access basic health services; purchase or own property; vote; hold elected office; and enjoy the protection of a country. Too often the births, marriages, and deaths of stateless people are not certified and, many stateless people lack even basic documentation.”
Next, a question from student journalist Tom Belger.
If you lose UK citizenship, how hard is it to get citizenship somewhere else?
MG: It may be impossible to get citizenship elsewhere. For virtually all states, the naturalisation of foreigners is a discretionary act and most states do not recognise any obligation to grant citizenship even to stateless individuals on their territory. Furthermore, the naturalisation provisions of most states have “good character” requirements.
If an individual has become stateless because they are suspected of terrorist offences, no matter how flimsy the grounds, this will often be enough to derail any citizenship application. It’s worth pointing out that historically, most of those deprived of citizenship in the UK could claim citizenship in the state that they were suspected of spying for, or fighting for, or otherwise being loyal to (think of people who spied for the Russians). Those accused of loyalties to Islamist terrorist groups have no state in which to apply for citizenship because these groups are not state based.
AKR: Under the current laws, everyone who loses their citizenship is supposed to be entitled to documentation elsewhere as at the moment you can’t leave someone stateless. The Home Secretary has claimed that new law – which would enable her to act even if the individual ends up stateless – would be used mainly when people can gain another citizenship. But if someone has been made stateless because the British government believes they are a serious terrorist threat it may well be very difficult for them to persuade another country to accept them as a citizen.
AW: Following on from Alice – we all know that you can have all the rights in the world, but if you don’t have access to a court and a lawyer to enforce your rights they are meaningless.
Also from Tom Belger:
Are people who lose citizenship likely to have access to legal aid to contest it?
AW: Legal aid is subject to strict financial threshold criteria – basically if you are working you will be unable to qualify. Meanwhile the work that has to go into those cases is massive – and if you win you don’t get your costs as the Special Immigration Appeals Commission has no power to award costs against the Secretary of State in an appeal.
By email, Damian Hockney asks:
What are the mechanisms for challenging such a decision?
AKR: Where the Home Secretary has ruled it’s ‘not conducive to the public good’ for the individual to retain her citizenship – essentially national security cases – the individual is given 28 days to find and instruct a lawyer and lodge an appeal. The government can choose to use secret evidence gained from intelligence sources, where the evidence and even the detail of the allegations are withheld from the person and their lawyers. We’re not aware of a case where someone has successfully appealed against the loss of their citizenship by proving the allegations were false – but lawyers have argued they’re at a serious disadvantage in arguing these cases.
Some cases have got further in their appeals on other grounds – such as claiming they’re made stateless. The only successful appeal we’ve identified was when Hilal al Jedda went all the way to the Supreme Court arguing he was made stateless, and he won. But three weeks later the Home Secretary issued a new order revoking his citizenship again, forcing him to return to the beginning of the process all over again.
The next question is from Abraham P Kenmore, by email.
As a student from the U.S.A. whose father worked in immigration, I have always taken it for granted that citizenship was a right that could not be revoked. It seems that that is not the case in the U.K., and indeed some officials were claiming that “citizenship is a privilege, not a right”. What is the legal justification for that claim? And what are the legal implications of calling citizenship a privilege?
MG: This is a complicated question to answer and I am not a lawyer, so Amanda may have more to say on this. However, one legal justification – a positivist one – is that since 1918, the UK has had laws enabling the deprivation of citizenship (on grounds other than fraudulent acquisition or misrepresentation) for naturalised citizens. Hence, it’s possible for UK officials to claim that UK citizenship has not, for the past hundred years, been an unconditional right, at least for naturalised citizens. One implication of construing citizenship as a privilege rather than a right, is that the government has the power to create laws that enable citizenship to be taken away. The view from international law is somewhat more complicated: some legal scholars argue that human rights constraints are starting to point in the direction of individual’s having a international right to citizenship in certain contexts.
AW: That is a really fascinating question which is worthy of a book at least. I have pondered on this for a long time. In the US you are right – the judiciary view with horror the idea that the state can play around with a person’s US citizenship – whether naturalised or born American. See for example the famous words of Chief Justice Warren in Trop v Dulles. But here, the sense of ourselves of ‘citizens’ is a relatively new concept with which we have struggled over the years.
There is a cultural seam through our society of believing on some visceral level that we are not citizens, but subjects. I think it is no accident that this government has carefully gone around renaming government agencies ‘Her Majesty’s this and that’ which promotes the kind of supine forelock-tugging place-knowing society who might accept without question the repeated mantra that citizenship is a privilege not a right to be distributed at the largesse of a politician.
Devyani Prabhat asks a question on Twitter:
— Devyani Prabhat (@Devi636) April 11, 2014
AKR: No, it’s a lot broader than that. The existing powers – where people who were born with British citizenship rather than being naturalised can also lose their citizenship – will still remain in force. This is an additional power that can be applied to those who have acquired their citizenship. The government says that these are people who have sworn an oath of allegiance, they have signed up to the British way of life, and therefore if they don’t hold to those social codes then they shouldn’t have the right to stay British. But an alternative point of view is offered by the US Supreme Court, which has ruled that citizenship shouldn’t be contingent on good behaviour: it should be a permanent state that can’t be taken away.
AW: NO! From the 1914 Act until 2002, the conduct required for deprivation (of a naturalised or later registered person) was essentially serious treachery or fraud and all such deprivees had a right to put their case to an independent committee of inquiry that they had a right to attend which had to examine the case BEFORE such an order could take effect.
What we have now is more like what Gareth Peirce has memorably described as medieval summary exile and is a measure which is spiralling upward in its use at an alarming rate.
MG: It’s true that the legislation reverts to an old tradition of picking out the naturalised for different treatment in terms of citizenship. Historically, UK legislation enabled the loss of citizenship for naturalised citizens even if it would make them stateless (though throughout the twentieth century stateless was increasingly built into legislation as a constraint on deprivation.)
However, the current amendment needs to be looked at in conjunction with a 2006 Act, which provides extremely wide-ranging grounds for depriving dual national UK citizens of their citizenship (the not conducive to the public good standard) that apply to the native born and naturalised alike. It’s certainly possible to argue that, taken together, the current legislative arrangements are unprecedented.
One last question, from Nathalie Van Meurs by email:
At the moment, these cases concern individuals who are considered to have controversial links and are thus deemed socially undesirable by some (media, politicians, etc.). In other words, some may argue that it’s ‘good riddance’ and that these individuals should have thought about the consequences before they engaged with terror activities, an example being Hilal al Jedda. The violation of any individual’s rights is evident but can you tell a layman like me more about the wider and possibly future implications of laws allowing the deprivation of citizenship?
AKR: The test for whether the Home Secretary can deprive someone’s citizenship is whether she believes their presence in the UK is ‘not conducive to the public good’. Under the new laws she will be able to make someone stateless if she believes their presence is ‘seriously prejudicial to the vital interests’ of the UK. Neither of those explicitly mention terrorism, and they’re broad enough that they could be applied to all sorts of behaviour that the government deems undesirable.
Last year Theresa May decided not to extend the visa of Trenton Oldfield, the Boat Race protester, on the grounds that he was ‘not conducive to the public good’. This was eventually overturned and clearly visas are different from citizenship but it’s an example of ‘mission creep’ in how these terms can be applied.
AW: This raises an interesting question about how an allegation becomes true as long as it gets repeated. There is no system of oversight that tests whether these decisions are based on objective fact or just the same kind of cocktail of innuendo, scapegoating and vested interests that resulted in the Guantanamo detentions. Of the few cases that manage to get a meaningful court examination of the allegations, few overcome the endemic problem of ‘closed material procedures’ where they don’t get to know – and thus cannot rebut or explain – the allegations against them.
A state that perpetuates this kind of injustice aimed at a section of the community loses the high ground and the support of that community in being vigilant to stop extremism developing in itself. The loss of the power of the rules of law is damaging to the fabric of society and threatens our democracy. As Lord Hoffmann said in the Belmarsh cases on detention without trial – do we really want to hand such a victory to the terrorists?
MG: you’re right; the legislation is crafted more broadly than terrorism, and that is one of the dangers. When the 2006 Act relating to deprivation was being discussed in parliament, the government mentioned a range of international crimes (other than simply terrorism), like international trafficking and smuggling, that might also be grounds for deprivation. I think the “not conducive” standard is worryingly broad, as evidence by its common usage in deportation law for non-citizens.
That’s all there is time for. Many thanks to our panel, and to everyone who submitted questions.
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