The normalisation of exceptional powers: deprivation of nationality in France and in the UK

It is now widely accepted that the post 9/11 context prompted a dilution of the rights attached to citizenship. The recent French law on terrorism (Law No 2017-1510) is only one of many examples of the normalisation of exceptional measures. The law incorporates most of the provisions of the derogatory procedure of the “state of emergency” within domestic legislation (house arrest, administrative search powers, closing of religious places…). One of the core features of the post 9/11 context thus is the institution of “permanent states of exception”. This routinisation of exceptional powers is illustrated by the current revival of citizenship deprivation powers in several liberal democracies, and their re-tooling as counter-terror measures. Long gone is the portrayal of citizenship as the right to “have all of the rights”, as Arendt famously puts it. In the words of many, “citizenship is a privilege, not a right”. It is a status increasingly contingent on behaviour, to the extent that the failure to be a “good citizen” may leave some individuals stateless. As the British conservative MP Simon Kirby said in a House of Commons debate 

“Is this [citizenship deprivation] not just about getting rid of very bad people and preventing them from coming back to our country?”

This blog looks at deprivation of nationality as a normalisation of exceptional powers and addresses some of the main issues it raises, with particular focus on the context of France and the UK.  

As was already discussed on this blog the UK substantively increased its recourse to deprivation of nationality from 2006 onwards. In June 2016 the Home Office responded to a Freedom of Information request and revealed that 81 deprivation orders had been issued within 10 years, 36 on national security grounds. In addition, following the Supreme Court case of Al Jedda, the UK modified the scope of its legislation. In Al Jedda the Supreme Court struck down a deprivation order, because stripping Mr Al Jedda of his nationality would leave him stateless. Yet, a few weeks after this case, Section 66 of the Immigration bill 2014 purported to modify the scope of deprivation powers under section 40(4ab) of the British Nationality Act 1981. It drastically increased the breadth of the powers by giving the Home Secretary the power to deprive single nationality holders - naturalised citizens - of their nationality on grounds of conduct seriously prejudicial to the vital interests of the country. A reservation to article 8 of the UN Convention on the prevention and Reduction of Statelessness 1961 allowed the passing of such legislation. Thus, although the bill was widely contested, especially in the Lords, the UK is now entitled to make individuals stateless.

The 2015 unfolding of events in France followed a similar dynamic, although it resulted in a different outcome. In 2015, a few days after the attacks on Charlie Hebdo, the then Home Secretary Bernard Cazeneuve deprived 5 individuals of their nationality. Under the French legal regime (articles 25 and 25-1 of the Civil Code), it is possible to deprive the nationality of dual-nationality holders who have been naturalized for less than 10 years. The order can only be issued after the criminal conviction of the individual, for actions falling under the listed grounds of article 25 and within 10 years after the commission of the acts. Both time limits are extended to 15 years for acts of terrorism. The order is subjected to the advisory opinion of the Conseil d’Etat, the French higher administrative court, whose opinion is binding.

A few months after the Paris attacks of November 2015, the French government proposed to introduce deprivation of nationality in the Constitution and to extend its scope ratione personae and ratione materiae. The proposal prompted wide criticism, especially within civil society and political circles, but was backed by a majority of the public. One of the versions of the proposal sought to extend deprivation of nationality to all French citizens, irrespective of their mode of entry into citizenship or their holding of a second nationality. As such it would have allowed France to increase statelessness, because like the UK, France also has reservation to the 1961 Convention. The proposal was eventually dropped arguably due to the strict procedure that revision to the Constitution requires (the agreement of both houses, the national assembly and the Senate, on a similar text, adopted by a majority of 3/5 of both houses gathered in Congress). 

But if these proposals were dropped, the absence of judicial constraint in practice leaves space for further increase. Indeed, the Conseil d’Etat has never yet opposed a deprivation order. In addition, in the few instances where deprivation orders were challenged, none of the arguments advanced by the claimants deprived (“the deprivees”) found favour in the eyes of the court. In most proceedings, the claimants had argued that the measure interfered with their right to private and family life, that the difference of treatment between naturalised citizens and dual-nationality holders contravened the equality of all citizens before the law, and that the measure violated the principle of non bis in idem (the impossibility to face punishment twice for the same acts). Yet, although acknowledging that nationality is a “constitutive element of the individual”, in all instances the Conseil referred to the catch all phrase of “the particular gravity of acts of terrorism” to find the measure proportionate to the aim pursued, ie national security, and justify infringement.  However, in two instances, the European Court of Human Rights cancelled the deportation orders, because of risk of degrading and inhumane treatment individuals would face if returned. This means that the deprivees are stuck in a legal limbo, put under house arrest and awaiting their deportation to a third country. They are thus left de facto stateless, with their right to private and family life greatly interfered with, and respects for the principle of non bis in idem seriously challenged.

In the UK, because the measure can be taken pre-emptively (ie without a criminal conviction) and is of direct effect, individuals have been deprived while outside of the country. This in effect prevents their returning to the UK and seriously impedes their opportunity to challenge the decision. In the case of G1 v Secretary of State for the Home department, the court of appeal accepted the argument of the government and found that there was no “in country right of appeal” under common law. In a similar strand, the use of closed material proceedings in national security cases (ie where parts of the evidence are not disclosed to the individual nor to their lawyers because of their alleged national security character) was not found to be a disproportionate infringement of the right of individuals to a fair trial, so long as the individuals are told the “gist” of the case held against them (AF v Secretary of State for the Home department). The combination of both court cases seriously challenges the effectivness of the right to a (fair) hearing and leaves alleged “bad people” at the mercy of the Home Secretary’s closed evidences.

So, where does this leave us? The increase in the recourse to deprivation of nationality on national security grounds, and the broadening of the scope of application of the measure, is part of the broader trend of the normalisation of exceptional powers. It is also part of the dynamic of the increase of the recourse to citizenship as a counter-terror measure (for example the cancellation of passports), and, more broadly, of the diminution of the rights attached to citizenship - if not a diminution of citizenship itself. The coming back on the (purported) acquis of the post Second World War human rights international framework, through the potential increase of statelessness, is - to say the least - worrisome. But what’s even more worrisome is the surrender of both the judiciary and Parliament, and their participation in this current domino effect. Although it is true that deprivation powers have not remained unchallenged, both institutions have had a major role in legitimising the measures by accepting their “legal” necessity as counter-terror measures.