The news cycle is choc-full of controversy at the moment; the Conservative Party were fined £17,800 over Boris Johnson’s flat refurbishment, and the government are under serious pressure to answer questions about several Christmas Parties that allegedly took place whilst the UK was in lockdown in late 2020. Yet, one of the most controversial stories is the passage of the Nationality and Borders bill – a piece of legislation which could allow the government to strip British people’s citizenship without notice.
The bill includes many sweeping reforms of the government’s immigration system, many of which are controversial, but it is Clause 9 of the bill which is causing the most worry. Clause 9 could theoretically give the government the power to strip citizenship from British people without informing them or necessarily giving them cause, sparking worries over the appeals process.
The Home Secretary – who is currently Priti Patel, and the person behind the Nationality and Borders bill – can currently remove citizenship from British citizens where they have any dual national of their citizenship and if doing so is deemed “conducive to the public good”, but they must give notice to these individuals.
This is what happened with Shamima Begum, the British-born teenager who left the United Kingdom aged 15 to become an ISIS bride. Then-home secretary Sajid Javid removed her citizenship as she was also a citizen of Bangladesh. She is still without British citizenship, despite her wish to return to the UK and face justice in UK courts, having since left ISIS and stating that she had been groomed. She is now living in a refugee camp.
The new bill however, would mean that those with citizenship of another country could have their British status revoked, and without there being notice given to the individual impacted, making it unclear how an appeals process could play out if the person is unaware that their British passport had been revoked.
Section 9 of the bill refers to the current law, which is derived from the 1981 British Nationality Act, and states that notice need not be given if “the Secretary of State does not have the information needed to give notice under that subsection” and if “it would for any other reason not be reasonably practicable to give notice under the subsection”.
It also states that notice should not be given in cases where it is “the interest of national security”, “the interest of the relationship between the United Kingdom and another country,” or, “otherwise in the public interest”.
The government would therefore still need a good reason for citizenship to be revoked, but that there would not be a requirement to inform that person their status has been removed. This would presumably be to limit the recourse available and limit the ability of the person to challenge the home secretary through the courts, limiting their access to justice. Likely, the change comes to avoid another publicly fought exchange between the government and a person with revoked citizenship, as has been the case since Shamima Begum had her passport revoked in 2019.
The bill does not significantly change the current law, but it does have potential to significantly limit the access to challenging any decision through the courts. This is despite the government saying that people would still have the right to appeal, but how they would appeal a decision that they don’t know about is unclear.
Home Office examples of where they would strip citizenship without notification include if informing them would reveal sensitive intelligence sources.
The power to remove citizenship has existed since 2006, shortly following the 7/7 bombings in July 2005, allowing anyone with dual citizenship that was foreign-born to have their British passport revoked. This was then extended in 2014 by then-home secretary Theresa May, who expanded the definition to include anyone that is eligible for citizenship of another country, including those born in the UK. This could be through generational ancestral links whereby people no longer have genuine or real connections to a place.
It is against international law to leave people stateless, and the 2014 expansion pushed the limit as far as possible without contravening this. Article 15 of the Universal Declaration of Human Rights – which was adopted by the United Nations in 1948 – explicitly notes that you cannot make people stateless. The European Convention on Human Rights (which is separate from the EU) also makes this clear.
The proposed bill likely does not expand this definition and create any new conflicts with international law, however, its potential to limit the appeals processes likely could contravene the rule of law, unless there are clear mechanisms through which the decision can be challenged. The rule of law are a set of principles upon which a fair legal system is built upon, with the right to appeal being a key facet of this principle.
The new bill – which has now passed through the House of Commons – therefore, does little to change the practical effect of who can have their citizenship revoked, but it will likely make pursuing judicial recourse much more difficult for anyone who has had their citizenship unilaterally revoked by the home secretary.
There is clearly an argument that the government should not have this power at all, and that it should either rest in the judiciary, or simply not exist as a tool for pursuing ‘justice’.
However, Clause 9 is not the only controversial element of the bill – which Patel has mooted as a way of tackling migrant crossings in the channel.
It will also give Border Force officials the power to turn migrants away from the UK while at sea and it could prison asylum seekers for up to four years if they enter the country ‘unlawfully’.
This bill, for the first time, considered how someone enters the UK to impact how their asylum claim progresses and on their status in the UK if that claim is successful, with a determination to be made considering if they entered ‘legally’ or ‘illegally’. This is despite the fact that under international law, it is impossible to illegally enter a country to claim asylum if a refugee.
The bill also includes clauses to allow the UK to submit claims at a “designated place” determined by the Secretary of State bringing up questions over offshore processing centres that Patel had previously expressed an interest in, such as those controversially used by Australia.
