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Double Standards: Dual Nationality Passport Stripping

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About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

Stripping your own people of their citizenship is a hallmark of oppressive and desperate regimes

Isabella Sankey, Liberty, December 2013

In February this year, the Home Office announced that the Asian-born perpetrators convicted of child sex exploitation in Rotherham will be stripped of their UK citizenship and deported at the end of their sentences. Such a move represents an innovative employment of current Home Office powers typically reserved for suspected terrorists.

Vinesh Mandalia, acting as counsel for the Home Office, stated that the decision to deprive the men of their citizenships following what has become a national scandal was based on the need to express ‘society’s condemnation of those who have gained the benefits and privileges of British citizenship, but go on to become involved in serious organised crime’.

For some, this need for such condemnation following the horrific levels of abuse suffered by the young girls involved may make deportation a fitting punishment. However, the very idea that additional punishment should be available on the grounds of nationality is both dubious and concerning.

British Citizenship, Naturalisation and Dual Nationality

Taking into account British Overseas Territories and various nations under the Commonwealth, there are actually six different types of British nationality, with British Citizenship being by far the most prevalent.  Such citizenship was conferred automatically on anyone born in the UK before 1st January 1983, and, if born after this date, born to a British Citizen or were naturalised there at the time of birth.

Naturalisation involves the acquiring of British citizenship, such as following marriage or five years of residency if certain conditions are fulfilled. Broadly, these require that a person making an application is:

  • 18 or over;
  • Of sound mind;
  • Of ‘good character’ (i.e without a serious or recent criminal record);
  • Intention to continuing living in the UK;
  • Can demonstrate the required knowledge of English and ‘life in the UK’;
  • Can demonstrate they meet the residency requirements (such as not breaching limits on number of days spent outside the country during the past 5 years)

The Migration Observatory at the University of Oxford found in their most recent assessment of migration trends that, in 2014, 125,800 foreign citizens naturalised as British citizens, the largest groups of, which, reflecting long standing migration trends, being from India (17%) or Pakistan (10%).

Unlike countries such as Norway and the Netherlands, Britain does not limit the ability of person to keep a foreign citizenship when naturalising. This means that, for some, naturalisation requires a person to relinquish their original citizenship altogether (as in China and Saudi Arabia). Such people will then hold sole-British citizenship in the same way as any other non-foreign born British citizen.

For others, naturalisation provides ‘dual nationality’ as such people are able to retain their foreign citizenship in addition to their British one. For example, although the Pakistani Citizenship Act 1951 (as amended) provides that ‘if any person is a citizen of Pakistan […] and is at the same time a citizen or national of any other country he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan’, an exception to this is where that person is also a citizen of the UK. 

The extent of this dual nationality is in some ways difficult to assess, but some statistics can give a broad indication. According to the 2011 census, 46% of the resident population who were born outside of the UK held a British Passport, representing 3.4 million people. Additionally, there were more children under 10 holding foreign passports in the UK (409,000) than those registered as being born abroad (290,000), suggesting that many “native” children also hold a foreign passport.

This all leads to two conclusions. First, there are no meaningful differences upon which to treat those who hold sole-British citizenship differently from those who hold dual citizenship, as both groups contain those who have been naturalised. It is difficult to see on what rational basis the criminal sanctions of a naturalised Chinese person should differ to that of a naturalised Pakistani one. Second, any change in approach which begins to introduce additional sanctions against those who carry dual-citizenship is likely not only to affect a significant number of people, but disproportionately those of Asian origin.   

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Removing Citizenship: Protecting the Public Good

The ability in law to deprive a person of British nationality dates back across the last century. Section 7 of the British Nationality and Status of Aliens Act 1914 provided for the removal of naturalisation certificates by the Secretary of State under a range of circumstances, including if imprisoned for 12 months or more within 5 years of receiving their certificate.

The current power to deprive a person of nationality of their British citizenship is provided by section 40 of the British Nationality Act 1981, as amended by the Immigration Act 2014. In addition to powers which enable the removal of citizenship where this was originally obtained by fraud or misrepresentation, section 40(2) gives the Secretary of State the power to deprive a person of their citizenship status if, on the balance of probabilities, ‘that deprivation is conducive to the public good’ and the person is not left without any citizenship (“stateless”).  The Home Secretary also has the power conferred by Royal Prerogative to withdraw British Passports if this is deemed to be in the public interest (this is entirely corollary to the fact that the provision of passports is also entirely at the Home Secretary’s discretion).

According to government figures, 37 dual-national individuals have been deprived of their liberty under these powers. Also, as noted by a government briefing, in recent years there has been an increase in use of the powers to deprive people of their British citizenship, although until now this has been mainly focussed on people suspected who have been involved in extremist activity or terrorist training overseas.

In an interview with the Bureau of Investigative Journalism (BIJ) in 2014, a man referred to as “E2” subject to such an order gave their account, having had his passport confiscated when attempting to travel back to the UK from a visit to Pakistan and Afghanistan. It appears that the basis of this action was the belief by security services that E2 was involved with the Haqqani Network – connected to the Pakistani Taliban - though it’s not possible to assess this as evidence on which the decision was based has not been disclosed ‘in the interest of national security’.  E2 denies the allegations and claimed the action had put his life in danger: ‘People back in Afghanistan know that my British passport was revoked […] I can’t visit my relatives and I am an easy target to others […] Without the British passport here, whether [by] the government or Taliban, we can be executed easily.’

Another example raised by BIJ includes that of Bilal al-Berjawi, a British-Lebanese citizen born in London but who left for Somalia. Suspected of involvement with terrorist group al Shabaab, he was stripped of his nationality in 2010 and killed by the first known US drone strike in 2011. Ian Macdonald QC commented that the effect of removing citizenship in this case enabled the British government to  ‘completely wash their hands’ of al-Berjawi and therefore any consequences of the drone strike.

More recently, in 2013 the powers were used to remove dual nationality from 20 individuals who travelled to take part in the fights in Syria.  Speaking of those cases, the Home Office stated:

Citizenship is a privilege, not a right, and the Home Secretary will remove British citizenship from individuals where she feels it is conducive to the public good to do so.

These cases clearly differ in many ways from serious organised crime committed within the borders of the UK. However, the approach that has been taken so far has attracted criticisms that the powers have not been exercised fairly, for example: waiting until a citizen is out of the country before revoking citizenship, thereby preventing them from returning to raise an appeal, or refusing to reveal the evidence by which the decision was made. It is this approach that raises concerns as to how such powers would be applied once the scope is widened to other criminal activity.

Two-Tiered Justice

Following the decision to remove the citizenship of the Rotherham offenders, one Whitehall adviser is reported as stating: ‘[t]here are no limits. It is not just potential terrorists who face losing their UK citizenship. Those involved in serious or organised crime, and who hold dual nationality, can expect similar justice.’

As the quote above illustrates, the Home Office is at pains to emphasise citizenship is a right and not a privilege. However, even accepting that, it is simply not the case that British citizenship is contingent on the adherence to British law. An individual does not lose their citizenship for committing serious offences such as murder, and an individual can only be made stateless altogether where their actions are ‘seriously prejudicial to the vital interests of the United Kingdom’ and there are reasonable grounds to believe that person can become a national of another country (s.40(4A) British Nationality Act).

The proposal by the Home Office in fact appears to be that British citizenship for those of dual nationality is contingent on the adherence of the law and that for those of dual nationality justice is served not by merely the usual sentencing powers of the court, but also deportation under s.40(2). As the European Union Democracy Observatory on Citizenship highlights, they demonstrate ‘there are now several categories of British citizens whose status or more or less secure depending on their situation’.

Such differentiation in status seems to go against the very concept of the rule of law, in which each citizen is subject to the same legislation: for example, being subject to the same approach by the court when considering adequate punishment for a crime.

The Sentencing Guidelines Council’s Guidance document sets out the criteria for assessing the seriousness of an offence and therefore the sentence: culpability, harm and prevalence. However, there is nothing about the fact that a person who has committed an offence is of dual nationality that necessarily increases any of these factors: taking the example of the offence of rape under s.1 of the Sexual Offences Act 2003, citizenship status is not listed as an aggravating factor. It follows that if there is nothing about a citizen’s legal status as dual-national that makes their crime more serious, then no additional action is required to address the offending above that given to a sole-British citizen.

In the context of criminal activity, the “conducive to public good” test is arguably so low that it should apply to all those convicted of indictable offences, giving the Secretary of State the ability to arbitrarily select those for deportation. In context of the Rotherham case, one cannot help but wonder whether such action would have been taken if the offenders also held Swiss or Australian passports. It is also worth noting that re-assessment of citizenship status has not been mooted as necessary for those British citizens, such Karen Macgregor, sentenced as accomplices to the abuse.

Citizenship may be a privilege, but it is surely indisputable that all those conferred with such status should be held to the same standard. The removal powers, by their discretionary nature, undermine this fundamental principle. The risk is that, as solicitor Daniel Carey characterises, that use of the powers were ‘getting worryingly close to a system of citizenship by executive fiat’, and thereby further away from the very British values such actions claim to protect. 

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Tagged: Anti-Terror, Criminal Law, Discrimination, Equality, Extradition, Immigration

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