Controversial provisions of the proposed Immigration Bill, which is currently making its way through the British Parliament, risk granting the government the power to make its citizens stateless – expelling them from the country and stripping them of their nationality, even when they have not been convicted of a crime.
These provisions would apply to anyone who was not born a British citizen, even when they have no other nationality – effectively rendering them stateless.
For the government to exercise this power, the person has to have ‘conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom.’ The power is intended for use in national security cases – where the person having their citizenship withdrawn is accused of involvement in terrorism – though there is no reason why it couldn’t be used in other circumstances.
The right to citizenship is of great importance in both human rights and constitutional law, to the extent that the US Supreme Court famously declared that it is ‘the right to have rights.’ Numerous international instruments, not least the Universal Declaration of Human Rights, enshrine the right to citizenship. While exceptions in international law do allow for the revocation of a citizenship even where no alternative is held, these should be treated with immense care. Statelessness is a dangerous legal limbo and an ineffective measure in countering radicalization or international terrorism.
Expelling a suspect from Britain is a poor substitute to trying them fairly of a crime. Indeed, the fact that the power could only be used on those who have gained their British citizenship in their lifetime, and were not born with it, risks further alienating already marginalized immigrant communities.
Once excluded from Britain, there is no reason to assume someone would be any less of a terrorist threat.
Compounding this already dangerous state of affairs is the appeals process available to those whose citizenship is withdrawn. When national security reasons are the state’s justification, which it’s likely to be in most cases, this appeal will be heard in secret, with the person appealing barred from much of the court proceedings. They will be unable to challenge the evidence which is being used to argue that they have conducted themselves in a way which is seriously prejudicial to the interests of the state. Instead, a security cleared lawyer, called a Special Advocate, will be appointed to see the classified evidence on their behalf. This lawyer will then be allowed next to no further contact with the person they represent.
In August 2013, powers under schedule 7 of the Terrorism Act 2000 were used to detain David Miranda, the partner of Glenn Greenwald, a journalist covering the Edward Snowdon case.
Miranda was carrying documents that the British government claimed were sensitive for reasons of national security. Yet the stories that Greenwald wrote based on contact with Snowden, a former contractor at the US National Security Agency (NSA), told how the general public had been subjected to extensive illicit internet and phone surveillance by government intelligence services.
This is a prime example of how powers passed by parliament to combat terrorism pose a major risk to civil liberties and, in this case, press freedom.
These measures, despite their significance, have been tacked on to the Bill at the 9th hour with insufficient time for proper parliamentary scrutiny. On Wednesday 7 May, the House of Commons reinstated them after they had been stripped out by the House of Lords. An amendment now means that the government must ‘reasonably believe’ that the person being deprived of their citizenship is able to become a national of another country.
However, the decision over whether this is a ‘reasonable belief’ will be decided behind closed doors, without due legal process.
We can only hope that the House of Lords will be wise enough to remove the statelessness provision again.