by Helena Wray
The Immigration Act 2014, which received the Royal Assent on 14 May 2014, permits the UK government to remove citizenship from British nationals in some cases where the result will be statelessness. The powers it contains are now part of UK law but will not be implemented until ordered by the Secretary of State.
The British Nationality Act 1981, S.40(2) already permits the Secretary of State to deprive a person of citizenship if she is satisfied that deprivation is conducive to the public good. Although this power was granted in 2006, it was rarely used until 2010 but, since that time, has been used at least 37 times, including against British citizens by birth. Deprivation orders are almost always served while the individual is outside the UK and take immediate effect so that the affected person cannot return to the UK to argue their appeal. Two people whose citizenship was removed in this way were later killed in US drone strikes while another was rendered to the US. An appeal, which is usually heard partly in secret by the Special Immigration Appeals Commission, was likely to succeed only on grounds that deprivation would make the individual stateless, a prohibition contained in s. 40(4) of the 1981 Act. In 2013, the UK’s Supreme Court ruled in Al-Jedda that deprivation could not take place if dual nationality did not exist at the moment of deprivation even it were open to the person to apply for citizenship of another state and this would be granted.
Section 66 of the 2014 Act removes this protection from some groups of citizens. It inserts a new provision permitting the removal of citizenship acquired by naturalisation if the Secretary of State is satisfied that it would be conducive to the public good because the person has acted in a manner which is seriously prejudicial to the vital interests of the UK. The provision caused immense controversy when first proposed. It relies on a reservation to the 1961 UN Convention on the Reduction of Statelessness made by the UK government when it ratified the Convention and which was superseded in 2002 by changes to domestic law. The legality of reviving the reservation and the provision’s compatibility with norms of international law were questioned (see, for example, the opinion of the Open Society Justice Initiative and the opinion of Professor Guy Goodwin-Gill to the Joint Committee on Human Rights).
In the event, the severity of the new provision was mitigated in two ways. A deprivation order on these grounds may not be made unless there are reasonable grounds for believing that the person is able to acquire another nationality. The operation of the power must be reviewed periodically and a report sent to the Secretary of State and, subject to exclusions for public interest and national security reasons, laid before Parliament. These concessions were granted to obtain Parliamentary approval after the House of Lords had voted to replace the new deprivation power with a provision establishing a committee to investigate the necessity of such a power. Fresh legislation would have been needed later for it to be implemented. Whether these amendments are sufficient to ensure that the Act meets domestic and international standards remains to be seen; much will depend upon the individual circumstances of those to whom it is applied and whether they (or any state which now has the ex-British citizen on their territory) can bring an effective challenge.
There are now several categories of British citizens whose status is more or less secure depending on their situation.
(1) Those who are British citizens by birth and do not have another nationality cannot have their citizenship removed.
(2) Those who are British citizens by birth or naturalisation and are dual nationals. They may have their citizenship removed if that is considered conducive to the public good.
(3) Those who obtained their citizenship by naturalisation who are not dual nationals so that deprivation will leave them stateless. Their British citizenship may be revoked if: 1. It was obtained by fraud, false representation, or concealment of a material fact; or 2. They are considered to have acted in a way which is seriously prejudicial to the vital interests of the UK and there are reasonable grounds for believing that the person is able to acquire another nationality.
Reportedly, 53 Britons were deprived of their citizenship since 2002.
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