Depriving people of their citizenship is not just dangerous — it’s un-British
Reprieve’s Omran Belhadi reflects on a worrying week for human rights in the UK
It is rare for me to be proud of the country of my birth, France. Our footballers regularly disappoint us. Our government is repeatedly humiliated on the international stage. We are shamed by a refusal to accept the horrors of our colonial past. I must take comfort where I can: at least we don’t spontaneously strip the citizenship of Muslim people we don’t like.
Under French nationality law, only those who are convicted of serious crimes, either before obtaining citizenship or within ten years of becoming citizens, may be stripped of their citizenship. A citizenship stripping order can only be taken after consultation with the “Conseil d’Etat”, France’s supreme administrative jurisdiction. As a result, a person born in France may never be stripped of his or her citizenship; even someone who has come to our country must be shown abundant due process.
This stands in stark contrast to Section 40 of the British Nationality Act 1981, which empowers the Home Secretary to strip any British citizen of their citizenship if “it is conducive to the public good”. There is no requirement that a person be convicted of a serious offence, or any offence at all. This power is subject to no judicial oversight until the appeal stage. Since it is generally done when someone is out of the country, that means it is nigh impossible to challenge: dispossession is nine tenths of the law.
Since 2010 there have been 16 known cases of citizenship stripping, a sharp increase from the four known cases between 2006 and 2010.
The process lacks fundamental due process protections. Appeals do not go to regular courts. Instead, they go to the semi-secret and heavily criticized Special Immigration Appeals Commission (SIAC). SIAC barely constrains decisions made by the Home Secretary.
Consider the case of a Sudanese-British man, known only as L1, deprived of his citizenship while in Sudan. He was on holiday with his wife and four children aged between 13 months and 8 years old at the time. As a result of his forced exile, his children are effectively barred from growing up in the UK. The judge believed it “unlikely” for the Home Secretary to “have made that decision without substantial and plausible grounds.” Just how unlikely do political machinations have to be before the British legal system will tell the Home Secretary she cannot snatch the passport of a father and, derivatively, his whole family?
This touching judicial faith in the Home Secretary’s informed and impartial judgment is misguided, particularly for anyone who believes in the Magna Carta, and 800 years of developing human rights law since 1215.
On its own, the power to take away citizenship is dreadful. But it is doubly so when it is used as a weapon in the United States’ ‘war on terror’.
Consider the case of Mahdi Hashi. In the summer of 2012, Home Secretary Theresa May deprived him of his citizenship. Within moments of her order, he was snatched by the Americans and taken to New York to face trial. It is obvious that the British and Americans were working hand in glove. So May is patently complicit in the American practice of extraordinary rendition — otherwise known as kidnapping.
But it gets far worse. At least Hashi will get a trial, albeit one of questionable fairness that will likely end in life in prison, much of it spent in isolation. Meanwhile, Britain as a nation eschews the death penalty, even after a fair and open trial and all the judicial trappings that may follow. Yet our Home Secretary is dabbling in extrajudicial executions. In 2010, Theresa May deprived Bilal al-Barjawi and Mohammed Sakr of their British citizenship. In February 2012, both were both killed by U.S. drones in Somalia. Not only did the UK apparently work with the US to effect their deaths; by taking away their passports, the Home Secretary made it almost impossible for them to leave Somalia and come home peacefully.
Did these two men deserve to die? Some would say we should never be in the assassination business. But to the extent that some people feel we should be terminating people with extreme prejudice’ (as the euphemism goes), we will never know whether they met the secretive criteria of the American kill list (or ‘disposition matrix’), because nobody was required even to make allegations, let alone prove them.
Now it seems the Home Secretary wants to do away with the only restriction on her already considerable powers in this area. Theresa May is today looking to introduce amendments to the Nationality Act; amendments that would circumvent the UK’s pesky international obligations and allow her to deprive terror suspects of their citizenship even if it would render them stateless. What’s worse, her amendments are retroactive. If at any point in your life you have done something Theresa May disagrees with, she can tear up your British passport.
I write as a Frenchman in suggesting that this power and the proposed amendments are decidedly un-British. Deprivation of citizenship has been described by leading experts as “sinister” and tantamount to “medieval exile”. The process of citizenship stripping is troublingly secretive, with decisions made behind closed doors, at a time when the citizen cannot defend himself, using evidence that often cannot be challenged. Today’s amendments risk creating a legal black hole where individuals are stripped of all rights attached to citizenship, and are unable to meaningfully challenge the government’s decision.
Liberty is eroded at the margins. I do not know whether Mahdi Hashi should face prosecution in New York; I do harbour a personal opinion that Bilal al Berjawi and Mohammed Sakr should not have been murdered with or without a trial. Yet unless we stand up for the rights of unpopular Muslims, we will soon find that the Home Secretary wants to take away other rights without a trial.
