openDemocracyUK: Analysis

Patel’s citizenship-stripping bill would accelerate UK race to the bottom

Britain already breaks international norms. The Home Office bid to remove citizenship without notice is a landmark on the path to authoritarianism

Amal de Chickera
26 November 2021, 3.19pm
Priti Patel’s bill amendment has been condemned by lawyers
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Russell Hart/Alamy Stock Photo. All rights reserved

In November 2012, Jawad Fairooz was stripped of his Bahraini nationality while he was visiting the UK. The former Bahraini MP received the news from his wife – who had heard it in a TV announcement.

As his citizenship was stripped without prior notice and while he was abroad, he was denied the right to return to Bahrain and challenge the decision. He was made stateless, with no legal recourse on the basis of a law that I think most in the UK would agree is draconian, arbitrary and in violation of international law.

Now Home Secretary Priti Patel also wants the power to deprive people of their citizenship without notice. Not only is this an attack on fundamental principles of justice and international law, it will inevitably target minorities and those of migrant heritage overwhelmingly. Attempting to justify the tactic, the Home Office has resorted to a discredited and alarming argument: that citizenship is a privilege, not a right.

Happily, Fairooz – who I subsequently met and befriended – was granted asylum in the UK and naturalised as a British citizen a couple of years ago.

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In his case, the UK honoured its international obligations to protect refugees and stateless people, affording him the opportunity to rebuild his life with a new home.

He grasped this opportunity, established a human rights organisation, and has become one of the most prominent and respected pro-democracy voices regarding the Gulf region. His children are studying in the UK: if they have children themselves, chances are, they will acquire British citizenship by right at birth – the same citizenship that their grandfather acquired through naturalisation.

UK nationality law, however, sees the citizenship of Fairooz (and even his future grandchildren) differently. His is deemed an inferior version of the citizenship enjoyed by those who better fit right-wing perceptions of what it is to be traditionally English, Scottish, Welsh or Northern Irish.

Second- and third-class citizens

Section 40 of the British Nationality Act sets out citizenship deprivation powers in a manner which, in essence, creates three tiers of British citizenship. The most secure, top tier, which cannot be taken away in any circumstances, is afforded to British-born citizens who have no other nationality.

Less secure is the citizenship of those born British, or naturalised, who also have another nationality. Section 40 states that such people can be deprived of their citizenship without leaving them stateless, if the home secretary is satisfied that such a measure is “conducive to the public good”.

On the least secure, bottom tier are those naturalised as British citizens who have no other nationality. They can be stripped of their citizenship even if this results in their statelessness, if the home secretary believes on reasonable grounds that the person is able to become a citizen of another state.

The racialised nature of this tiered system is evident: the citizenship of those of minority and migrant heritage is less secure than those who belong to majority ethnic groups and have no meaningful connection to other countries.

The Windrush scandal and citizenship deprivations that disproportionately target members of the Muslim British community are consequences of this racially tiered citizenship framework. Minorities and those of migrant heritage are judged by a different yardstick and face harsher consequences for their actions. This type of racially tiered citizenship regime usually brings to mind countries such as Myanmar, with its notorious 1982 citizenship law, not the UK.

Patel’s power grab

It is in this context that Patel introduced a new clause to the already controversial Nationality and Borders Bill, which is presently at report stage in the House of Commons. If enacted, section 9 of the bill would empower the home secretary to deprive a British citizen of nationality without notice if she does not have the information needed to serve notice, deems it not reasonably practicable to do so, or believes it is in the interests of national security, relations with another state or otherwise in the public interest.

This proposed amendment thus further relaxes the procedural obligations of the Home Office, which is required under current law to give written notice before depriving a British national of their citizenship (a 2018 amendment allows the Home Office to serve notice to the person’s last known address if their whereabouts are unknown).

The controversial new proposal is likely to be a knee-jerk reaction to the recent D4 case, in which the High Court held that the government couldn’t simply strip someone of their citizenship without making any effort to contact them first. The Home Office is appealing against this decision, but the retroactive nature of the new amendment (it will apply to previous revocation decisions as well) is a clear indication that the government aims to shape the rules to fit its practices, rather than the other way around. This government has, of course, a dubious track record in this regard, most recently, in relation to the Owen Paterson lobbying scandal.

The amendment has been criticised by a wide array of lawyers, advocates, parliamentarians and international legal experts, who have raised concerns about the draconian nature of the powers, rule of law implications, disproportionate impact on minorities and practical implementation problems that are likely to arise.

The UK’s international legal obligations

Even before this latest development, UK citizenship deprivation practice was on the wrong side of its international obligations. While states may legitimately deprive people of citizenship in extremely limited circumstances, the discretion to do so is constrained by a range of fundamental international norms. These include the right to nationality, the prohibition of arbitrary deprivation of nationality, the prohibition of discrimination and the obligation to avoid statelessness.

Furthermore, the impact of nationality deprivation on other human rights, humanitarian and refugee law standards will affect the legality of citizenship deprivation. Any nationality deprivation must also comply with procedural safeguards and the right to a fair trial.

UK law and practice already fails on a number of these counts. Even before this latest amendment, much work was needed to strengthen protection, non-discrimination and fair trials, but instead, efforts must now focus on preventing further backsliding through this regressive proposed amendment.

How does the UK compare with other states?

Sadly, the UK is not alone in this regression. While the importance of protecting the institution of citizenship and the deeply harmful consequences of citizenship deprivation were self-evident in the aftermath of the Second World War, citizenship is once again becoming fair game in the post 9/11 world.

Although citizenship deprivation is still a rarity in democracies, more than 15 states have expanded powers to deprive citizenship in the past decade. Often presented as an administrative measure, in reality, citizenship stripping is a permanent punishment that may even contravene international law. Many Western democracies, including the Netherlands and Australia, have expanded their powers in comparable ways with the UK, despite there being no clear evidence of related policy benefits.

The more convincing argument is that deprivation measures are purely symbolic, and ultimately counterproductive and harmful, as they inevitably stigmatise and target minorities. Perhaps for this reason, there have also been positive developments, with countries such as Chile and Canada narrowing the scope of such powers.

Furthermore, many states that have expanded citizenship deprivation powers maintain stronger checks against abuses of government power known as executive excess, through more robust judicial oversight or requiring a criminal conviction as a prerequisite for citizenship deprivation.

The trajectory in the UK heads in the opposite direction: towards greater executive convenience and less oversight, epitomised by this latest amendment. This threatens to move UK practice from the murky territory it currently occupies to the blatantly undemocratic.

The ‘citizenship is a privilege’ response

Often, when governments attempt to defend the indefensible, they do so not through rational and logical argumentation, but by resorting to soundbites. Asked to justify the draft amendment, the Home Office resurrected Theresa May’s legally inaccurate statement from 2013 that “British citizenship is a privilege, not a right”. It is perhaps no coincidence that the UN Secretary General, António Guterres, subsequently tweeted that “having a nationality is not a privilege – it’s a human right” protected by UN treaties, to which the UK is party and is obliged to protect.

Perhaps a more accurate reflection of the current state of affairs would be that citizenship is a right for some – those who hold the most secure citizenship in the three-tiered scale – but racialised minorities should consider themselves privileged to be British citizens. The Home Office cannot publicly hold such a position, which would clearly contravene its obligations under the Human Rights Act and the Equality Act, but this is the inescapable reality. In this context, it is not more executive power and discretion that’s needed, but stronger adherence to legal principle, judicial oversight and due process.

Due process, rule of law and democratic balance

Earlier this year, commenting on the Shamima Begum judgment, I raised concern about the implications of reduced judicial oversight on due process, the rule of law and the balancing of the democratic functions of the executive and judiciary. Without repeating these arguments, I simply add that this new amendment will further tip the balance towards legal uncertainty, executive impunity and erosion of the rule of law.

It is a basic tenet of justice that you are informed of charges against you and have a fair opportunity to challenge any decision in that regard. This is crucial both to protect individual rights, but also to protect democratic institutions.

Institutions being legally empowered to act opaquely, without communicating decisions to those affected and without meaningful scrutiny by the courts, is a hallmark of authoritarianism, not democracy. This is particularly so with regard to citizenship: being intangible, many years may pass before someone finds out their citizenship was stripped and they were never notified.

I may be accused of hyperbole, but the road from democracy to authoritarianism is rarely dramatic and sudden. It is more often slow and winding, through the relentless chipping away at norms, principles and institutions. This amendment marks one such moment.

Bahrain denied Jawad Fairooz his basic right to be notified and to challenge the decision to strip him of his citizenship. As a consequence, the UK stepped in to fulfil its international obligations to him. This amendment, if passed, will make it imminently easier for the UK to do to others what Bahrain did to Fairooz.

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