RESPONSE
Irving’s work on Allegiance is Vital
Devyani Prabhat (University of Bristol)
The Nuances of Allegiance
My interest in allegiance as a concept arises from my own research on citizenship in which I examine historical links between citizenship, empire and subjecthood. In my work I also analyse modern cases of cancellation of citizenship. Research on these fronts draws me to this excellent book, Allegiance, Citizenship, and the Law, by Helen Irving. Irving asks a set of questions to draw out the nuances of allegiance: How was it that individuals acquired a relationship with public authorities and specifically with government and its associated legal and administrative bodies? What might this relationship consist of? How did it evolve as the state itself evolved and expanded? And what should the name of this relationship be? In sum, what were the origins of what we now understand to be citizenship?
To answer these questions Irving examines the feudal era relationship of subject to King as well as different historical periods when this relationship changed. Her underlying purpose is to understand the many dimensions of allegiance and her primary argument is that allegiance is no longer a relevant concept for understanding the citizenship bond. To arrive at this conclusion, she looks at various dimensions of the links between citizenship and allegiance.
Irving’s central thesis is a before and after account of allegiance. She finds that how allegiance was before modern democracy is fundamentally different from how it is now with the advent of democracy. Protection may be the counterpart of allegiance in the past, but it is hardly present in accounts of citizenship today (p. 9). Prior to democracy, allegiance was automatic obedience to the sovereign. It is not just conformity to the law and is a submission to authority. It is a habit which is incompatible with democratic self-government (p. 9). Thus, the pre-modern is allegiance and the modern is participatory (p. 13).
Certainly, modern democracy is a different political arrangement, but this characterisation may not have that kind of sharp transition point. At least in the British context there has been no sharp transition from subjecthood to citizenship; both ideas co-exist. Instead, there has been a continuum of legal statuses such as subjecthood to citizenship of UK and colonies, European union citizenship, and national security linked conditional citizenship, emerging at various key stages of evolution of the concept of citizenship. There is no clear before and after but each of these stages creates new categories of people through British immigration and nationality laws. Each develops processes of inclusion and exclusion of people. Sometimes when rights attach and consolidate at a supra-national level, nation states retaliate with new restrictions. For instance, Brexit has provided the latest instance of loss of status for an entire category of long-term residents as EU nationals lost their automatic right to settle and work in the U.K. The hostile environment towards migration has affected all migrants and many settled populations whether they be the Windrush generation (Caribbean/Commonwealth diasporas), EU nationals, or indeed long-term citizens.
Naturalised Citizens and Integration
Irving points out that naturalised citizens are held to higher standards of allegiance than those of their citizen counterparts, such as through additional loyalty oaths. She illustrates this point through an incisive analysis of the Nottebohm case (p. 50-51). While many scholars have written about this fabled case on naturalisation from the point of national sovereignty and international law, Irving points out that the court required a higher level of allegiance from Nottebohm solely because he was ostensibly naturalised in Liechtenstein and not born there. Another case Irving incisively discusses is the well-known Calvin case. As I am researching jus soli and jus generis in the context of subjecthood and children’s citizenship, Irving’s analysis of the Calvin’s case is really useful. It connects ideas of allegiance with natural territorial and personal connections with the king, which was then retained in common-law for centuries.
While connecting naturalisation and integration, Irving says that terrorism by naturalised citizens causes additional concerns as the presumption is that well integrated people would not attack their own country (p.57). Yet, this is not always true. There are many political causes or beliefs for which people participate in violence such as the furthering of various political or ideological ideals/goals (e.g., fascist, or right-wing violence in which people attack minorities). These acts are not always committed by ‘outsiders’ who become insiders. Indeed, right wing terrorists may participate in so-called ethnic cleansing to maintain the demographic purity of their nation state. In Britain ‘home grown terrorism’ is a widely used term: Britain’s 7/7 tube attacks were all by British-born British citizens rather than naturalised citizens who have failed to integrate.
More recently in instances such as the citizenship deprivation of Shamima Begum, Begum (Respondent) v Secretary of State for the Home Department (Appellant) [2021] UKSC 7, a person born in the UK, and British citizen from birth, was considered a threat to national security and stripped of her citizenship. In Begum’s case through her parental links with Bangladesh, Begum was deemed to have eligibility for Bangladeshi citizenship. The focus has now shifted from naturalisation to finding disloyalty and links elsewhere for anyone who is a national security threat.
There is support here for Irving’s argument on how individuals are now held responsible for their citizenship which is treated as a private property. The Home Secretary can deprive British citizens of their citizenship in a few different scenarios: (1) it would be ‘conducive to the public good’ to deprive the person of their citizenship and to do so would not leave them stateless; (2) the Home Secretary is satisfied that citizenship was acquired through naturalisation and obtained fraudulently or by false representation; or (3) on ‘conducive’ grounds where citizenship was acquired through naturalization and the Home Secretary has reasonable grounds to believe they could acquire another nationality. The Secretary of State can use these powers for all naturalized citizens: irrespective of issues of statelessness if the conduct in question is ‘not conducive to the public good’ and is ‘prejudicial to the vital interests of the country’. All that is required is a reasonable belief that another nationality may be acquired.
Irving provides really good insight into treason as an offence or as an act for which citizenship can be stripped (pp. 110-111). According to Irving the stripping means that the relationship of citizenship has broken down and does not exist anymore thereby removing any obligation of protection or any allegiance. If any act by a person can lead to the loss of citizenship it seems to indicate, they own their status and can give it up by an act of conduct. However, the reality is that citizenship is not really an individual property (social bond, socially given, political relationship etc) so this is paradoxical. Irving also queries how, if an individual owns citizenship, can a state unilaterally revoke citizenship? 1960s case law in US seems to register this as a contradiction (p. 117). However, the idea of citizenship as revocable is very much in tune with present day British developments.
Irving’s alternative ideas on citizenship: an assessment
Overall, there’s a tension between the ‘ought’ and the ‘is’ in the book. Irving says, “Citizenship as participation and citizenship as allegiance are essentially irreconcilable, notwithstanding their frequent conflation and the attempt to reconceptualise allegiance in a modernised form that merges the two.” I agree with this sentiment. Citizenship ought not to be about allegiance and especially so in modern democratic societies but in reality, we see is that there is the resurgence of allegiance as a concept. Cancellation demonstrates how there is a renewal of national scrutiny over multiple nationality holders and the creation of aliens out of citizens. So, it is not the simple case of pre-democratic society rooted in allegiance versus post-democratic citizenship floating free of allegiance. Instead, I find much force in another idea proposed by Irving; that of revocation as being connected to theories of citizenship as a civic virtue (p. 118). Here, an obstacle to universal protection from the state via citizenship is that people have to subordinate themselves to the public good through the lens of allegiance. Some people will lose this protection if their conduct is not satisfactory. Indeed, this is the exact logic of cancellation cases. Lady Arden in Pham says, for instance, “In the present case, the appellant has over a significant period of time fundamentally and seriously broken the obligations which apply to him as a citizen and put at risk the lives of others whom the Crown is bound to protect. I do not consider that it would be sensibly argued that this is not a situation in which the state is justified in seeking to be relieved of any further obligation to protect the appellant.”[1] Normally a person cannot be expelled from the territory as a citizen, but this is not true for revocation that takes place outside of the country as this prevents the re-entry of the person once deprived of citizenship.
Irving attributes a profound social bond to the meaning of citizenship. It gives a person the right to live in a country and this is inherently meaningful. It is not just a formality, and one does not need to superimpose allegiance to confer substantive meaning upon it. Irving does a fantastic job of bringing in the perspective of the global south and women there who depend on landholding or rights to land for security into her substantive idea of citizenship rights in the conclusion of the book. This could be fleshed out more if the particular legal citizenship lineages of some of those countries could have also been tracked in the book. The book examines empire and subjecthood but overlooks the citizenship relationships that emerged in the global south after decolonisation. Even for modern times (for example on dual citizenship) the examples are mainly from the global North but for some references to Indonesia and Singapore (p. 31). It is important to think about the global south not just as a source of migrants and naturalised citizens but also democratic states where issues of allegiance and belonging have been debated at and since time of state formation. There is also the issue of circular migration where people may work in a country and then return to their country of birth in the years when they retire or simply hold multiple passports for business or work in multiple locations.
Part of the process of being a global citizen has been the capacity to hold multiple nationalities. However, states have the power to recognise or derecognise this capacity and they can strip their own nationals of their citizenship. The suspicion with which multiple nationality holders are perceived (despite often being inadvertent nationality holders) is based on the same concerns about loyalty and allegiance as those underlining cancellation cases. Targeting multiple nationality holders for cancellation is regressive in a world where the number of people holding at least two citizenships is constantly increasing both because of increasing mobility and different nationality regimes across countries.
Conclusion
By the broad parameters used in the Begum case, nearly anyone with some sort of ancestry which is ethnically different from white, British, and even a lot of white, British people with links to any other country, become amenable to citizenship stripping for loosely defined reasons of conduct. There appears to be a resurgence of the suspicion of multiple nationality holders and people from ‘elsewhere’ whose loyalty, often linked to ethnicity, just could not be trusted. Such prejudices predate the current human rights regime but perhaps surprisingly continue to co-exist with various rights frameworks. Under the new Nationality and Borders Act 2022, the British government is allowed to strip people of citizenship without giving them notice to appeal against the measure thereby diluting the earlier protections as people may remain unaware of their loss of nationality while outside the country. In this manner, cancellation powers have morphed into targeted instruments of bordering effective especially against naturalised citizens and multiple nationality holders. This reality is in sharp contrast to what Irving says citizenship is: a sacral bond (p. 67).
Irving’s ideas on citizenship and its sacralising force remind me of Durkheim’s concepts of the sacred and the profane. This raises a slew of new questions. Would this imply that overly broad naturalisation/entry would make citizenship profane/mundane in nature? Can the sacred be exclusive and actually justify a very restrictive ‘sacred’ citizenship or strict requirements of some kinds of behaviour? Or is it just formal ritualism which itself makes the relationship sacred? These are all interesting lines of enquiry. Undoubtedly Irving’s work is thought provoking. A final thought to close on, since there is such a large gap between the ‘ought’ and the ‘is’ of national citizenship perhaps it is important to think of other kinds of affiliations beyond the nation state such as linguistic and religious affiliations or loyalties to specific cities or regions or even football teams. Allegiance and loyalty need not remain exclusively attached to nation states especially if nation state citizenship fails to live up to its promise.
[1] Pham v Secretary of State for the Home Department [2018] EWCA Civ 2064. Arden, LJ, in para 51.