On January 26th, 2022, the Court of Appeal handed down a ruling that was celebrated by human rights activists and organisations around the United Kingdom. The decision of the court found the Home Office to have acted beyond their power in the case of the Home Office repealing a British national’s citizenship without properly notifying her of the decision to do so. The power to repeal a British National’s citizenship status without notification would be a draconian reality under Clause 9 of the proposed Nationality and Borders Bill, which has already been passed in the House of Commons and is currently being examined in the House of Lords. If passed by Parliament, Clause 9 threatens to circumvent the decision of the Court of Appeal regarding this issue. It would exempt the government from the requirement to give notice if it is not ‘reasonably practicable to do so’ or in the interests of national security, diplomatic relations, or otherwise in the public interest. This has severe potential infringements upon human rights and should sound the alarm for every British citizen. How did we get here? What does this ruling and potential passage of the Bill mean for the future, and does it have strong footing in Parliamentary conversations on the new Bill?
Impact on Human Rights
Visibility of the potential injustices on fundamental freedoms which arise from this proposed policy varies between specific cases. After all, not every judge’s opinion in the latest decision from the Court of Appeal aligns. Sir Geoffrey Vos, Master of the Rolls, stated in his dissent,
“There is, in my view, no substantive difference between a regulation that allows valid service of a notice by sending it to an address at which it is known the person will not receive it and serving it to file.”
The primary trouble with this logic is if the Home Office is permitted to make no attempt whatsoever to notify the person of this decision outside of putting it on to their internal personal file, the ability to appeal the decision is virtually impossible. Lady Justice Whipple challenges Vos’ opinion by stating the majority opinion:
“The 1981 act does not confer powers of such breadth that the home secretary can deem notice to have been given where no step at all has been taken to communicate the notice to the person concerned and the order has simply been put on the person’s Home Office file. To permit that would be to permit the statute to be subverted by secondary legislation.”
In their decision, the Court of Appeal reinforced that only Parliament has the power to alter this law, and that the British Nationality Act 1981 requires the Home Office to issue some form of written notice of their decision. However, it is important to remember that the Court of Appeal was only deciding upon whether the Home Office had acted beyond the powers conferred upon them by Parliament to deprive citizenship without written notice, not whether the reasoning behind individual cases of stripping citizenship was lawful. Going further, it is also arguable that the law giving the Home Office power to deprive statehood breaches the United Kingdom’s commitments under Article 13 of the Universal Declaration of Human Rights, to which the United Kingdom voted in favour of (although not binding):
(1) Everyone has the right to freedom of movement and residence within the borders of each State, and (2) Everyone has the right to leave any country, including his own, and to return to his country.
It is also in contrast to Article 3, Protocol No. 4 (which sets out the prohibition of the expulsion of nationals) of the European Convention on Human Rights, upon which the United Kingdom is a signatory:
(1) No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national
(2) No one shall be deprived of the right to enter the territory of the State of which he is a national.
Additionally, other proposed rule changes in the Nationality and Borders bill are also facing strong criticism. The Bill makes claims from anyone arriving in the UK by an illegal route inadmissible, whilst also criminalising them and anyone who seeks to save their lives. Further, it grants Border Force staff immunity from prosecution if people die in the Channel during “pushback” operations. This part of the Bill deliberately deters legitimate asylum seekers from pursuing asylum in the United Kingdom and sends a clear and inhumane message to British citizens who simply endeavour to save the human life in front of them.
Notable Cases Related to Deprivation of Citizenship
The recent decision from the Court of Appeal discussed in this article concerns a British woman, referred to as ‘D4’ in court proceedings, who travelled to Syria to allegedly join the Islamic State. Her citizenship was stripped in 2019 and a notice of that decision was placed on her Home Office file in line with 2018 regulations. D4 was never notified of this decision. 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 and equated it to a private act of putting something in a drawer and locking it, rather than notifying anyone.
One of the most notable and publicised cases surrounding deprivation of citizenship over recent years is that of Shamima Begum. It concerns both the potential unlawful failure to notify as well as doubts over national security reasoning given by the Home Office for stripping of Begum’s citizenship. The case concerns a British-born woman who, at the age of 15, travelled from the UK in 2015 to Syria to join the ISIL. Ten days after she arrived in Syria, she was married to Dutch-born Yago Riedijk, an Islamic convert who had moved to Syria in 2014, and went on to have three children, all who have since died. In numerous interviews that she has given, there is no ambiguity that certain statements she has made are dangerous to the British public. Therefore, it can be inferred that these statements (among other reasons) resulted in the grounds of revocation of her citizenship for national security reasons (terrorism charges). When a person being deprived of citizenship results in statelessness, it is not lawful under the British Nationality Act 1981 (s. 40), nor is it permitted under UN International Law (the 1961 Convention on the Reduction of Statelessness, to which the UK is a signatory). A proposal for repatriating Ms Begum so that she is released into the public is not a suggestion proposed here, rather, her case prompts questions about statelessness and whether there is an alternative solution than failing to notify her and allow her an appeal for this decision. For instance, could Ms Begum be held in criminal detention in the UK in order to plead her case of appealing the decision by fair trial? Does denial of this trial infringe on the individual rights of not only Ms Begum, but every British citizen who is not able to appeal the decision of the Home Office?
A recent unrelated landmark decision may give Begum new grounds for appeal. A British schoolgirl’s terrorism charges were dropped after the Home Office decided she was a victim of trafficking. The Derbyshire schoolgirl was accused of possessing instructions for homemade firearms and explosives, but an expert unit decided she had been groomed online by an older male extremist from the United States. This is the first time a terrorism prosecution has been halted following a decision of this kind. The Home Office’s Single Competent Authority decided there were “conclusive grounds” that she had been groomed and exploited sexually, and this conduct amounted to trafficking under modern slavery laws. They concluded that a child does not need to have been subjected to forced movement, either within a country or across borders, to be judged a victim of trafficking. Although not directly a citizenship case, it provides an example of a terrorism charge being dropped due to sexual exploitation/grooming and adds a dimension that has not yet been explored in the Begum case. This finding begs the question of the gap between online radicalisation and exploitation. Some would argue that exploitation is the flip side of online radicalisation. If found to be a wide gap, this leaves room for Begum and her legal team to explore the nature of her relationship with Mr Yago Riedijk, and whether Begum’s actions were connected to exploitation of her vulnerabilities as a young person.
Lastly, deporting lawful British immigrants without sufficient cause or notice has recently happened in 2017. The Home Office found itself in the middle of the ‘Windrush Scandal’ in 2017. Many members of the Windrush generation, who had legal right to live and work in the United Kingdom and journeyed across the Atlantic in the period immediately following WWII, were wrongly deported back to their home countries in the Caribbean and denied legal rights. In 2012, the government legislated a policy called ‘Hostile Environment’ to effectively make the UK unliveable for the commonwealth citizens of the Windrush generation and ultimately push them to leave. Many of the Windrush immigrants had come to the UK as children, and their landing cards were either lost or even destroyed by the Home Office. When the burden of proof was on the commonwealth immigrants to prove their status, the Home Office required at least one official document from every year they had lived here (which dated back to before 1973). It is not difficult to see how this is beyond unreasonable as they would need to have produced documents from over 40 years prior. Many, unable to prove their status, were forcibly detained or deported back to countries they had not seen since they were young children. Though the government has subsequently commissioned a review of the scandal, many who were affected have not been compensated to this day. The scandal helps to further illustrate a pattern of expanding, sweeping powers of UK government and Home Office that have been gained over the last few decades without many checks in place; powers which are often an affront to fundamental human rights and dignity of immigrants and ordinary British Citizens.
Future of Citizenship Cases in the UK
When speaking about the current Clause 9 of the Nationality and Borders Bill, Frances Webber, the vice-chair of the Institute of Race Relations, said,
“This amendment sends the message that certain citizens, despite being born and brought up in the UK and having no other home, remain migrants in this country. Their citizenship, and therefore all their rights, are precarious and contingent.’
Clause 9, if enacted, flouts clear fundamental freedoms for British citizens and naturalised immigrants. In response to the criticism of the clause, the government states that although it will not remove Clause 9, it is necessary to ensure deprivation powers can be used effectively and will only apply in very limited circumstances. Where is the check on power to ensure this, especially since much of the reasons behind deprivation can be murky and easily contested? They have also stated that Clause 9 ‘does not affect the right to appeal’. How can this hold true when the clause says they do not have to give notice, which typically triggers the right to appeal, if the Home Office deems that it was not ‘reasonably practicable’ to do so, in line with the wording of the new bill? There is legitimate concern about the extreme power it hands to the Home Office, relatively unchecked, and the broader message it sends to British-born dual nationals.
Although the UK government is no longer bound by European courts and conventions as it was pre-Brexit, it may want to ask itself what kind of reputation it seeks in the world, as the breaching of the Convention on Human Rights (Art 3) could have serious ramifications for British citizens and naturalised immigrants. Has the UK government learned from Windrush, or has it simply sought new ways to expel those it does not want through creative statutory accounting?
