“Everyone has the right to a nationality”

UK House of Lords defeats Government on deprivation of citizenship leading to statelessness

29 April 2014 | Alison Harvey, Legal Director, Immigration Law Practitioners’ Association (ILPA)

On 19 November 2013 Amal de Chickera responded on this blog to the UK Home Secretary’s announcement that she would invite parliament to change UK law so that in certain national security cases persons could be deprived of their nationality even though this would make them stateless.  This post tells the next chapter in the story.  It is not a response to the earlier post although I have attempted to pick up some of the points raised there.

The Secretary of State introduced the provisions as amendments to the Immigration Bill before the UK parliament. On 7 April 2014 the UK House of Lords rejected them, substituting an amendment that would refer the question of whether the UK should take powers to deprive people of citizenship where this would make them stateless to a committee of parliamentarians and then require the Government to bring forth fresh legislation if it subsequently decided to proceed. The amendment was carried by c votes to 180.  The Liberal Democrats, the second party in the coalition government, abstained and a number of Liberal Democrats and Conservatives, including a former Lord Chancellor and a former Ministers, spoke against the Government and joined the opposition in supporting the amendment in the name of the Lord Pannick.

The Immigration Bill has not completed its passage through parliament and there are some indications at the time of writing are that the Government will try to overturn its defeat, in whole or in part. Everything remains to play for, but here I take stock of what has been achieved to date.

The Government amendment’s passage through the House of Commons was less than glorious. Drafts of the Home Secretary’s proposals were circulating by early December 2013 but the amendment was tabled at the eleventh hour. It appeared without warning on 30 January 2014, the day before the UK House of Commons as a whole debated the Bill for the second time following its detailed consideration by a small committee. Essentially the Government wanted something, anything, to talk about so that, in the time allotted for consideration of the Bill, it would not reach amendments tabled by rebellious members of the Conservative party seeking to introduce provisions to reverse the lifting of restrictions on access to the UK labour market by Romanian and Bulgarians on 1 January 2014.  Mention is made on the parliamentary record of ILPA’s having briefed through the night to inform that debate.

The gravity of the matter was acknowledged by the Home Secretary in introducing her amendment: “Depriving people of their citizenship is a serious matter. It is one of the most serious sanctions a state can take against a person.”  She was pressed on questions of procedural protection and also on why there were no limitations on the proposed power given that her announcement following the Al Jedda case had focused on persons who were in a position to acquire another nationality or citizenship. There were also questions as to whether it was right that only those naturalised as British could be deprived of their citizenship in this manner. This latter restriction is inevitable if the law is to be changed, given that any amendment has to stay within the confines of the of the UK’s declaration on ratification of the 1961 Convention, made when there was no power at all to deprive those British by birth of their nationality.  However it is a powerful reason for not changing the law at all.

For her part, the Secretary of State argued that she needed the powers to protect national security, that what she was doing was in line with international law and, moreover, that the amendment did no more than revert to the position the UK had held up until the Nationality, Immigration and Asylum Act 2002 removed the power to deprive persons of their nationality for reasons of conduct where this would result in statelessness.  The terms of the amendment, she said, were designed to restore the powers the UK had preserved in the declaration on ratification of the 1961 Convention. There was a vote on the amendment: the opposition abstained and the amendment was carried by an overwhelming majority.

The question of procedural protection was of particular concern because in 2004, seemingly by accident, as explained in ILPA’s briefings, the UK had hugely reduced the procedural protection afforded to those deprived of their British citizenship. It had taken powers that ensured that rather than take effect only after all rights of appeal against deprivation had been exhausted, deprivation of citizenship took effect at once, with citizenship to be restored in the event that the appeal was successful. It then proceeded to use those powers to effect summary exile, depriving persons of their citizenship while they were outside the UK, as is the case for Madhi Hashi, who was in Somalia at the time of his deprivation and was rendered from Djibouti to the United States, where he is now imprisoned.  Bilal al Berjawi was deprived of his citizenship in October 2010 while in Somalia. He was killed in a drone strike there in January 2012.  The report on Mohamed Sakr’s death in a drone strike makes mention of “an Egyptian commander”.  Yet, born in London a dual British and Egyptian national, he had never had an Egyptian passport but had travelled to Somalia on his British passport which was then cancelled. The Labour MP Diane Abbott, forced a debate on these matters just days after the debate on the new clause.

In the House of Lords, the debates were extraordinarily well-informed, even by the standards of one of the world’s great debating chambers.  Two of the UK parliaments most respected Committees, the Joint Committee on Human Rights and the Lords Committee on the Constitution, interrogated the Government on its proposals and produced reports. Guy Goodwin Gill, Professor of International Refugee Law and fellow of All Souls College at the University of Oxford, produced three briefings for the House of Lords.  ILPA, the Open Society Institute, the Bureau of Investigative Journalism and Liberty all provided extensive written argument.  These documents drew on international and national law, the Travaux Préparatoires for the 1961 Convention and the UK’s actions in deprivation of citizenship cases to date.  The peers laying amendments and leading the debates brought extensive experience of their own: Lord Brown of Eaton-Under-Heywood, a former justice of the Supreme Court; Lord Pannick QC, a leading public law barrister; Lord Lester QC, a leading human rights barrister and Baroness Kennedy of the Shaws QC, better known as Helena Kennedy, the barrister in the deprivation of citizenship case of Madhi Hashi.

The House of Lords did not dispute the Home Secretary’s intention to limit use of the proposed provision to, persons whose actions are “seriously prejudicial to the vital interests of the UK”.  The majority, which was greater than the 242 voting for the amendment, given the abstentions, did dispute that deprivation of nationality resulting statelessness was an appropriate response even to such persons. Those debates in the House of Lords are as memorable for the principled statements as for the detailed legal argument.

Briefings that considered the Travaux Préparatoires reminded peers that the UK had championed a principled approach during the negotiations of the 1961 Convention.  The Lord Avebury invited the House to consider “ … the appalling example we are setting…the rest of the world. Britain was in the forefront in promoting the 1961 UN Convention on the Reduction of Statelessness, and has since worked to reduce the pockets of statelessness that still exist all over the world, such as the Bidoon in the Gulf states, the Rohingya and the Palestinians. How can we now pretend to a share in the leadership of the UNHCR’s continuing effort to eliminate statelessness when, at the same time, we are enacting domestic legislation to create more stateless people?”

The plight of the stateless received attention and the House saw past questions of national security to the stateless person. The Lord Roberts of Llandudno reminded the House “Let us not forget the judgment of Chief Justice Warren ruling in the United States Supreme Court case of Trop v Dulles in 1958. He said that, ‘use of denationalization as a punishment’, means, ‘the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture.’” The Lord Deben said “… the exemplars are not ones that are easily taken to the heart of the broad mass of the British people. That means that those people should be particularly able to call upon this House… We live in a world in which statelessness is one of the most terrible things that can befall anyone.” The Lord Brown of Eaton-under-Heywood recalled that “…Lord Wilson, in giving the Al-Jedda judgment, referred in paragraph 12 to ‘The evil of statelessness’ and spoke of the ‘terrible practical consequences’ that flow from it.”   Lord Macdonald of River Glaven declared  “… statelessness deprives people of the ‘right to have rights’. It brings about a bleak, hopeless status, or rather a complete lack of status, that the British Government should have no role in encouraging, first, because of the positively terminal impact that the imposition of statelessness is bound to have on the ability of the rightless to function in a way that is even remotely human in the modern world and, secondly, because it is clear that such an imposition as a policy measure can have no sensible part in a co-ordinated international effort to combat security threats. …”

As that last extract suggests, the House refused to be cowed by dire warnings of the risk to national security. It did not accept that a deprivation of citizenship would make the citizens of the UK, or indeed of other countries, safer. It conceived of security not as a national, but as a global, affair. A person who threatens security is the responsibility of all States, in the spirit of, as Lord Macdonald of River Glaven put it, “the comity of nations” and “solidarity between free countries in the face of terrorism.” Aut dedere aut judicare  is to be preferred to offshoring those who threaten our vital interests. It is but a short step from this approach to the principle that the stateless are a collective responsibility of States, which underpins the 1954 Convention on the Status of Stateless Persons.

In any event, the Government overplayed its hand on national security arguments. It refused to tell the Joint Committee on Human Rights, or the House, how many of the 25 persons deprived of their British citizenship since 2006 had been outside the UK at the time, citing “national security”.  Yet in 2010 it had responded to freedom of information requests on this very point.  The Bureau of Investigative Journalism has identified 18 of the people, 15 of whom were deprived of their citizenship while outside the UK.  What could answering the question tell us that we do not know already? The Government continues to advance in letters the argument that deprivation of citizenship allows it to stop people travelling although it has all the powers it could want or need to deprive citizens a passport on national security grounds as was pointed out in the debates.

Legal arguments have a particular function in the political arena.  Only a few are knockout blows, even when those debating are leading lawyers. Arguable points serve rather to give confidence to those taking a stand.  The Open Society Institute’s argument that the use of “retain” and “retention” in Article 8(3) of the 1961 Convention meant that the UK could not revive a declaration on which it had ceased to rely got less attention than Professor Goodwin Gill’s explanations in his briefings of a State’s obligation to readmit its former citizens, which was widely relied upon in the debates. 

The Joint Committee on Human Rights had emphasised that for deprivation to be lawful it would have to be a necessary and proportionate response to threat posed, conditions it made clear would not be easy to fulfil.  This goes to the question of when deprivation of nationality will be arbitrary, a question already under consideration by the Office of the High Commissioner for Human Rights, to which ILPA has provided a submission. The Joint Committee also emphasised that deprivation could not be viewed in isolation from other obligations under national and international law such as the obligations to respect the best interests of the child.

The Government referred several times in the debates to the likelihood that those who were deprived of their citizenship could rapidly acquire another nationality. The possibility of the Secretary of State limiting her powers to those in a position to do so was raised, including by the Joint Committee on Human Rights, but the Lord Deben appeared to speak for the majority when he said “…to take away someone’s citizenship, it is not reasonable to say that you assume that they can get another country’s citizenship. It is only reasonable to say that you know that they have another citizenship; anything less than that is wrong. It may not be convenient, but it is not right” treating as the morally correct decision the decision the Supreme Court had held to be legally correct in Al Jedda [2013] UKSC 62:

“Parliament, reflecting the terms of the 1961 Convention, there refers to the person who will "acquire" another nationality. … it could have added the words "in circumstances in which he has no right immediately to acquire the nationality of another state". But it did not do so; and the Secretary of State therefore invites the court to place a gloss, as substantial as it is unwarranted, upon the words of the subsection.”

What emerges very strongly from the debates is the notion that a State that intentionally makes persons stateless is a pariah and that is reputation and influence must suffer as a result.  Given the nature of those proposed to be deprived of their citizenship under the Bill, this argument transfers easily to other situations involving statelessness. The Lord Bourne of Aberystwyth declared: I believe my country to be better than this proposal.” (10 February 2014 cols 489-490). The Lord Deben said “…recognise that if we have granted citizenship, or if someone has citizenship, we will defend it, and do so even though it be to our own hindrance…” The Lord Macdonald of River Glaven stated “…this proposal is not only ugly …; it not only associates the United Kingdom with a policy beloved of the world’s worst regimes during the 20th century; but it threatens illegal and procedural quagmire…” The Lord Brown of Eaton-under-Heywood, having indicated that he was in any event unimpressed by the national security arguments, said firmly “…it is very unlikely that any advantage to national security could begin to compensate for the indisputable reputational damage that such a measure would occasion.”. Baroness Kennedy of the Shaws asked “Where is the rule of law of which we are so proud? …Deprivation of citizenship is potentially inconsistent with obligations accepted by the United Kingdom under many different treaties dealing with terrorist acts, in particular, the obligations of investigation and prosecution in the fulfilment of which every other state party has a legal interest.”

The 1954 Convention permits the status of stateless person to be withheld on the grounds that there are serious grounds for considering that a person has committed a crime against peace, a war crime, or a crime against humanity, has committed a serious non-political crime outside thecountry of their residence prior to their admission to that country or has been guilty of acts contrary to the purposes and principles of the United Nations. As examined in close detail in the UK debates, the 1961 Convention allowed states to retain certain powers to deprive persons of nationality resulting in statelessness.  But the more work is done to highlight the plight of the stateless, the more the force of the characterisation of deprivation of nationality resulting in statelessness in the US Supreme Court’s decision in Trop v Dulles, 356 U.S. 86 (1958) as “cruel and unusual punishment”, is brought home. 

If we are to eradicate statelessness, we need, as with the fight against torture, to argue that making a person stateless is not something you do to a nice person, but it is not something you do to a nasty person either. The debates in the UK have shown us that when you step up to defending the rights of those who, as Lord Deben said, are not easily taken to the heart of the broad mass of people, you put yourself in a powerful place from which to attack the “evil of statelessness” in all of its manifestations.

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