Theresa May but the UK shall not

Theresa May recently announced that she would seek to change UK law so that British terror suspects can be deprived of their citizenship even if it makes them stateless. This most recent announcement comes on the back of the Al Jedda judgment of the UK Supreme Court, which was a bitter pill for the Secretary of State to swallow. In Al Jedda, the Court rejected the argument of the Secretary of State that Mr Al-Jedda’s statelessness was due to his failure to re-apply for Iraqi citizenship and not due to the deprivation of British nationality.

The exchange between the executive/legislature and judiciary on this important and often inflammatory issue has all the makings of a classic episode of British legal history, reminiscent of the tussle between Court and Parliament on the issue of the cruel, inhuman and degrading treatment and destitution of refused asylum seekers (see the Limbuela judgment). If history is anything to go by, the checks and balances of the British justice system generally have a way of ensuring the right outcome. However, for the individual whose rights are impacted in the here and now, little solace is to be found in this assertion.

So as the British justice system meanders on its way – hopefully in the right direction – Theresa May continues to relish her role as pantomime villain, planning different ways to ambush lady justice and send her packing. The scary thing is that the audience (read Labour) doesn’t seem to be too concerned about the plight of lady justice and refuses to perform its role of shouting ‘Look, she’s behind you!’ Instead, they seem preoccupied with how (in)efficient and (im)practical May’s proposals really are. The response of Labour shadow immigration minister David Hanson that "[t]hese suggested changes could take years, will be legally questioned and won't help with the six terror suspects being allowed off terrorism prevention and investigation measures in two months' time" is disappointing to say the least.

Theresa May’s wishes may not materialise, but they nonetheless pose some difficult questions that must be grappled with.

Do we have a right to a nationality or is it a privilege?

Theresa May has repeatedly stated that British nationality is a privilege and not a right. The drafters of the Universal Declaration of Human Rights (UDHR), the foundation of international human rights law and a moral compass for the world would humbly beg to differ. Article 15 of the UDHR states that ‘everyone has the right to a nationality’ and ‘no-one shall be arbitrarily deprived of his nationality’. Many binding international treaties which the UK is party to including the ICCPR (Article 24(3)), ICERD (Article 5(d)(iii)), CEDAW (Article 9) and CRC (Article 7 & 8) also have articulated the right to a nationality. Perhaps the Secretary of State was ill advised on the intricacies of international law or perhaps this is just political speak aimed at coming across as tough and uncompromising in the face of terror.

Regardless of whether the Secretary of State actually believes what she said, the fact that she said it can be deeply harmful to the very fabric of international law. If individuals do not have a right to a nationality, states will be able to deprive individuals and entire communities of their nationality on a whim and with no repercussions. Zimbabwe did it, Myanmar did it, Latvia did it, most recently the Dominican Republic is lining up to do it – but all of these countries are considered to have acted in violation of principles of international law, a transgression which comes with its own set of repercussions.

The right to a nationality does not necessarily mean the right to a British nationality. It does for the majority of British nationals who acquired their nationality by right - i.e. where there was no discretion involved – but those who were granted nationality through a discretionary naturalisation process did not have a right to British nationality at the outset. But once regarded as nationals, regardless of how nationality was acquired, Article 15 UDHR kicks in to protect the individual from the arbitrary deprivation of nationality.

The notion of arbitrariness comes into play because there is a right at stake. British nationals have the privilege of travelling to most parts of the world without visas. If one day, all countries decide to make their visa policies towards the UK reciprocal – UK citizens will lose this privilege – and as it is a privilege, the question of whether such a step is arbitrary would not arise. But nationality is a right and must therefore be treated with the utmost respect.

Can the UK render people stateless while acting in compliance with its international obligations?

Theresa May has reportedly asked officials to ‘find a way of overturning international human rights conventions that prevent individuals with only one citizenship from being made stateless’. The treaty in question is the 1961 Convention on the Reduction of Statelessness. Article 8(1) of the Convention states the general rule that ‘A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.’ Exceptions to this rule are articulated in Article 8(3) according to which:

Notwithstanding the provisions of paragraph 1 of this Article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time:

(a)   that, inconsistently with his duty of loyalty to the Contracting State, the person...

(ii)    has conducted himself in a manner seriously prejudicial to the vital interests of the State;

This text deserves some further analysis. Accordingly, the contracting state can deprive a person of her nationality even if the result is statelessness if:

1. it expressly reserved the right to do so when signing the convention,
2. such deprivation was provided for by national law at the time (i.e. a new law cannot be drafted subsequent to signing the convention) and
3. it is limited to the specific grounds and standards articulated in the Convention.

The UK position with regard to these three conditions is as follows:

1. The UK did make an express declaration under Article 8(3). However, in its declaration, the UK further limited the application of this exception to the deprivation of nationality of ‘naturalised’ persons. (Perhaps the UK did not envisage a situation where a born and bred Brit would be capable of acting in a manner seriously prejudicial to the vital interests of the state.)
2. Such deprivation was provided for by the law at the time. However, since then, the law has been amended. Firstly, the threshold for deprivation of nationality has been significantly lessened. It is no longer necessary to establish that the person has conducted himself in a manner ‘seriously prejudicial to the vital interests of the state’. Instead, the standard is one of the Secretary of State being satisfied that ‘deprivation is conducive to the public good’ (Section 40(2) of the British Nationality Act). However, this lowering of the threshold has not resulted in a violation of Article 8(3) because the amended Act includes a safeguard against statelessness (Section 40(4)).
3. As mentioned above, the grounds for deprivation of nationality under UK law no longer meet the stricter threshold articulated in 8(3)(a)(ii) of the Convention, but this is a moot point as the UK has changed its law and therefore its declaration under Article 8(3) of the Convention no longer applies.

The question therefore is can the UK revert to the previous position which allowed it to strip persons of their nationality even if the end result would be statelessness? For most countries, an analysis of the 1961 Convention would result in a straightforward ‘no’ for doing so would involve implementing new law, whereas the exception under Article 8(3) only applies to existing law. But the UK is rather unique in that one of its key constitutional principles is that of Parliamentary Sovereignty, according to which Parliament is the supreme legal authority in the UK and no Parliament can fetter the sovereignty of future Parliaments. Thus, the decision of a previous Parliament to in effect lift its declaration under Article 8(3) should not bind a subsequent Parliament from revisiting the issue. The question of how it goes about doing so however is a more complex one which goes to the intersection between the UK’s constitutional principles and its international obligations. Three points must be made in this regard:

1. Since the UK’s declaration limited its application of this exception to ‘naturalised’ citizens, a further broadening of its application as Theresa May envisages would not be possible under the current terms of the UK’s obligations under the Convention.
2. In any event, if this exception is to be invoked, the lower threshold of ‘conducive to the public good’ must be scrapped and the threshold permitted in the Convention of ‘seriously prejudicial to the vital interests of the state’ must be applied.
3. Compliance with the 1961 Convention does not equate to compliance with international law as a whole. The UK has further obligations to ensure that it does not arbitrarily deprive anyone of their nationality.

What constitutes arbitrary deprivation of nationality?

Protection from arbitrary deprivation of nationality is a complex and growing area of international law. While the issue of arbitrary deprivation cannot be satisfactorily explored in one paragraph, it is worth noting that the deprivation of nationality which:

1. is unlawful,
2. is discriminatory on grounds protected under international law (including gender, race and national origin),
3. does not serve a legitimate objective,
4. is not necessary,
5. is not proportionate and/or
6. does not uphold procedural and substantive safeguards

would be arbitrary under international law. The end result/impact of deprivation – whether it renders the individual stateless, results in him or her not being able to exercise rights to family and private life, freedom of movement etc must be taken into account when determining the proportionality of the deprivation of nationality.

Further to a UN General Assembly Resolution on the Arbitrary Deprivation of Nationality, the Office of the High Commissioner for Human Rights (OHCHR) has been tasked with reporting back to the General Assembly on legislative and administrative measures that may lead to the arbitrary deprivation of nationality. The Immigration Law Practitioners Association of the UK (ILPA) has made a submission to the OHCHR on arbitrary deprivation of nationality in the UK, and one of their well made points is that the current threshold under UK law of ‘conducive to the public good’ is far too low to pass the test of non-arbitrariness.

If one day, the Secretary of State were to argue that the manner in which she has chosen to exercise her powers as Secretary of State was not conducive to the public good, I would have to agree. If she decided to strip herself of her nationality as a result, I would not hesitate to argue that to do so would be arbitrary and unlawful.

Does treating those with dual nationality differently to those with single nationality comply with the principle of equality and non-discrimination?

For once, I find myself agreeing with Theresa May. It does not seem fair or right to have one set of rules for those who have dual nationality and another for those who have only British nationality. Particularly when those who have dual nationality are more likely to belong to ethnic minorities and/or have migrant backgrounds, such double standards are unlikely to stand up to any serious scrutiny from a discrimination perspective.

Where I do disagree with the Secretary of State is in the solution to this problem. Her preferred solution is one of levelling down – erode the rights of single nationality individuals, whereas mine would be one of levelling up – strengthen the rights of those with dual nationality. I believe that this is the only solution that would be compatible with the UK’s obligations under international law.

At a broad principled level, the right to equality and indeed all human rights are intended to enhance the quality of life of all human beings. The trajectory of the human rights movement has to be a positive one which over time, benefits the most marginalised and least protected. Any action which runs counter to this trajectory – including achieving equality through levelling down - must be subject to the strictest of scrutiny.

At a more tangible level, the UKs obligations under the 1961 Convention do not allow such a broadening of the exception. A general principle of the interpretation of statutes is that exceptions to a rule must be construed narrowly. Consequently, any exception with allows for loss or deprivation of nationality resulting in statelessness must not be given an expansive interpretation as the Secretary of State intends. Furthermore, such a levelling down would not pass the tests of non-arbitrariness and proportionality under international law.

Does stripping someone of their nationality really help fight terrorism?

The terms ‘national security’ and ‘terrorism’ have taken on a completely new significance post 9/11, and are the go to place for executive and legislative powers in search of solace from the scrutiny of courts. Paint anything with the ‘terrorism’ brush and your discretion multiplies infinitely. Call anyone a national security threat and their rights diminish significantly. This is a sign of the times and perhaps the most difficult challenge faced by human rights law. What weightage do such considerations deserve when applying a proportionality test? Now that’s the subject for another blog.

I am not British; I am Sri Lankan, a country that has had its fair share of terrorism and a state that has multiple skeletons in its closet on how terrorism was dealt with. Despite the abysmal human rights record of the Sri Lankan state, not one Sri Lankan (terrorist or otherwise) has been stripped of his or her Sri Lankan nationality to-date. This is less to do with the fact that the Sri Lankan state is a paragon of justice and more to do with the knowledge that depriving someone of their nationality has very little to do with combating terrorism in an effective manner. One can understand why Sri Lanka has never contemplated depriving citizens of their nationality, for which country would accept an individual who has been deprived of his nationality and made stateless on grounds of terrorism? In the UK on the other hand, under Theresa May’s tenure as Secretary of State, at least 16 persons have been deprived of their nationality on security grounds, many while they were out of the country (thus making a mockery of due process standards).

Why have Sri Lanka and the UK taken such different approaches to combating terrorism? The answer may lie in the fact that the Sri Lankan state has in its considerable arsenal, the Prevention of Terrorism Act; a draconian law which contravenes almost every human right in the book and allows the state to detain terror suspects for extremely long periods. In 2008, the UK government unsuccessfully attempted to increase the pre-charge detention period for terror suspects to 42 days. A cynical take on Theresa May’s approach to deprivation of nationality would be that she is trying to achieve through immigration law – where indefinite detention for the purposes of removal occurs in practice – what the government failed to achieve through an amendment to its Prevention of Terrorism Act. If this is indeed true, it would amount to the wrongful and ultra vires exercise of power by the Secretary of State of circumventing the legal restriction imposed on her by Parliament with regard to the deprivation of liberty of terror suspects, by stripping them of their nationality, initiating unattainable removal proceedings against them and placing them in immigration detention.

Do the stateless have no rights?

Implicit to the entire position of the Secretary of State, is that the UK has more leeway to mistreat non-nationals and stateless persons, as they have fewer (if any) rights. Such a position, while seemingly true in the UK in practice (where else are you better off as a terror suspect than an irregular migrant), betrays a lack of understanding of or reluctance to adhere to the UK’s obligations under international law. All persons, be they nationals, non-nationals or stateless persons benefit from the fundamental human rights embodied in the core human rights treaties (barring a few exceptions such as the right to vote and seek election which are restricted to nationals). The development of international law in this manner is not only right, it is the only practical and sustainable way forward for the human race in an increasingly globalised world where migration is more common and identity more diluted. It is in the UK’s interest to uphold its obligations in this regard, as increasing numbers of UK citizens have made their homes in third countries where they rightly expect equal treatment and protection of the law. The principle of reciprocity demands that the UK ensure the same standards of protection to non-nationals subject to its jurisdiction as it expects for British nationals living abroad.

I have faith in the British justice system, and I believe that the stain left by Theresa May will be a temporary one. This does not mean it is not a dangerous development which undermines the rule of law and the protection of human rights both within the UK and internationally. If her words ever evolve into action, Parliament and subsequently the Courts will be compelled to address them in due course. In the meantime, civil society has a responsibility to make its disapproval heard.