Citizenship Deprivation: 21st Century Banishment

In the past few years, citizenship-stripping has become an important weapon in the arsenal of anti-terrorism laws in many western countries. Citizenship is increasingly removed on the basis of conduct deemed prejudicial to state interests at the sole discretion of interior ministries and officials. There are few checks on these powers that have massive implications for the lives and liberties of those involved, their families and communities, rendering them vulnerable and unprotected.

Citizenship-Stripping

Citizenship-stripping powers have long existed in the UK and differ from similar powers in other European countries in many ways, particularly the ability to render an individual stateless. These powers were used sparingly in the twentieth century and between 1973 and 2002 were not used at all.

That changed with the post-9/11 political landscape. In 2003, deprivation of citizenship rendering a person stateless was disallowed but, for the first time, dual nationals born British citizens could lose their British citizenship. Tacked onto various laws, further powers were introduced by the former Labour government, but citizen-stripping really took off only after the Conservative Party came to power in 2010 (in a Coalition with the Liberal Democrats until 2015).

In May 2014, Home Office Minister James Brokenshire provided figures of the numbers of deprivation orders made since 2006: 27 orders were made on grounds that it was conducive to the public good, i.e. ostensibly related to national security and terrorism, and 26 orders were made on grounds of fraud or false representations; 48 of these orders were made by the Coalition government. An undisclosed number of dual nationals (or supposed dual nationals) in the former category had their British citizenship removed while overseas. The government has been accused of deliberately waiting until individuals are out of the country to make deprivation orders, which it denies.

Due to the failure to revoke the British citizenship of naturalised Iraqi-born Hilal Abdul-Razzaq Ali Al-Jedda, which would render him stateless, a provision was introduced in the Immigration Act 2014 that granted the Home Secretary the power to order the deprivation of British citizenship acquired through naturalisation, even where such an order would render a person stateless, when she deems that doing so is conducive to the public good.

Review

The controversial nature of this power, which has few comparisons elsewhere, means that it is subject to regular review. The first review, covering the period from 30 July 2014 to 29 July 2015, was submitted to parliament by David Anderson QC, the Independent Reviewer of Terrorism Legislation, on 21 April. As the power was not exercised during that period, or by the publication date of the report, Anderson instead provided an outline of the evolution of this power and issues surrounding the deprivation of citizenship.

Anderson singles out two striking features of this particular power – the breadth of the discretion given to the Home Secretary: “Its exercise is not contingent on conviction for a terrorist offence, nor even on the satisfaction of one or more of the criteria that were  set  out  in  BNA  1981  [British Nationality Act],  but  only  on  the  deprivation  being  “conducive  to  the  public  good”  because  the  person,  when  a  British  citizen,  “has conducted  him  or  herself  in  a  manner  which  is  seriously  prejudicial  to  the  vital  interests  of  the  United  Kingdom”.”

The other key feature is the “absence of any requirement of judicial approval before deprivation is ordered.” Other issues, which can only be tested by the exercise of the power, are mentioned. Anderson states that the power “is an unusually strong one in international terms.” and “It extends  further  than  the  laws  of  most  comparable  countries  in  Europe,  North  America  or  Australasia” without having attracted as much controversy. He posits one reason for this being that similar laws have already existed and been used (before 1973) in Britain.

Elsewhere

Consideration is given to existing or planned citizenship-stripping powers in other countries. While some states consider introducing or extending powers to strip the citizenship of dual nationals, including those born citizens of the state, rendering individuals stateless is seldom on the agenda. In this respect, unlike some other European states, the United Kingdom is not a party to the 1997 Convention on the Avoidance of Statelessness. In addition, when exercised, the power to make such orders is not usually applied when the individual is out of the country; the British government does not believe that an individual’s rights apply under the European Convention on Human Rights in such cases. The United Kingdom nonetheless remains bound by two key United Nations conventions on statelessness.

Moves to introduce or expand citizen-stripping powers have met with fierce debate in all countries, due to the loss of protections the loss of citizenship entails. As such measures are suggested often as a knee-jerk reaction to specific incidents, such as bombings, the debate is often manipulated by the media and politicians. Anti-terrorism laws are a good means for otherwise unpopular governments to appear powerful against a vulnerable minority even though they are impotent to act against greater, more pervasive risks to society, such as homelessness, unemployment and poverty.

Recent developments:

France

Following the attacks in Paris in November 2015, the most controversial of a raft of knee-jerk measures announced by the French government was the extension of existing citizenship-stripping powers for dual nationals in the case of a terrorism conviction to those who acquired French nationality at birth. The legality and constitutionality of the measure were disputed and led to the resignation of Justice Minister Christiane Taubira in January. In late March, the measure was dropped.

Sweden

On 11 February, as the now scrapped French measure cleared an important hurdle, lawmakers in Sweden voted overwhelmingly to reject an amendment proposed by the far-right Sweden Democrats Party to an anti-terrorism bill that would remove the citizenship of a Swedish national convicted of a terrorism offence, even if it rendered them stateless. Swedish law only allows the removal of citizenship due to false representations or corruption of an official.

Canada

In Canada, the government of Justin Trudeau is planning to repeal sections of the Strengthening Canadian Citizenship Act 2014, which amends the Immigration Act and expands measures for the revocation of Canadian citizenship, including after conviction for terrorist activities, as well as restricting the appeal procedure. For some, the proposed amendments go a long way but not far enough in addressing the inequalities and ambiguities created by this law.

Belgium

Following the Charlie Hebdo attack in Paris in January 2015, the Belgian government proposed a 12-point antiterrorism package, which included a provision to remove the Belgian citizenship of naturalised dual nationals who have been sentenced to more than 5 years in prison for a terrorism offence. The law was passed and took effect in July 2015. Citizenship can only be removed by a judge and not a minister or civil servant.

With the ball rolling, the Flemish nationalist N-VA Party has since proposed the law is extended to dual nationals who are born Belgian citizens. Further controversy was raised when Brussels politician Rudi Vervoort compared the discriminatory nature of the law to Nazi policies: “Citizenship deprivation was used by the Germans to consider Jews as a separate kind of citizen. The Vichy government did the same thing.”

Australia

In December 2015, Australia passed the Australian Citizenship (Allegiance to Australia) Act, “to ensure that Australian citizens accused of fighting for a declared terrorist organization, or acting inconsistently with their allegiance to Australia, will be stripped of their citizenship automatically, including that of their children, if they are dual nationals.” The law applies retroactively, and to individuals aged over 14. The law was criticised by Australian Human Rights Commissioner Gillian Triggs as it “significantly threatens our freedoms. […] Counter-terrorism laws are but one example of the growing unchecked and unreasonable intrusion of executive government in our lives.”

In February 2016, a Citizenship Loss Board, which has no statutory reference, was established. The board operates in secret and is not politically accountable. Nonetheless, it will decide on the cases of “more than 100 Australians involved in the conflicts in Iraq and Syria”. Professor George Williams has called the board “an Orwellian development, and yet another indication of Australia’s willingness to compromise good governance and basic rights in the name of the war on terror.”

“Ineffective and counter-productive”

In his review of the UK’s current law, David Anderson QC flags three arguments against citizenship deprivation powers on the grounds that they are “ineffective and counter-productive”. Such criticisms have been made elsewhere too. “Exporting” convicted terrorists simply shifts and does not solve the problem or prevent possible re-offending. Use of the power can also result in lengthy and expensive legal battles concerning the human rights of individuals, as has happened already in the UK and has been raised with respect to Belgium. In a handful of cases in France, where an individual has lost their acquired French citizenship due to a terrorism conviction, it has proved legally impossible for the authorities to deport that person to their country of origin due to the risk of torture or persecution there, leaving that individual in perpetual limbo.

More importantly, Anderson points out that “The  power  encourages  “the  dangerous  delusion  that  terrorism  is  (or  can  be  made  into)  a  foreign  threat  and  problem”,  diminishing  the  incentive  to  deal  with it domestically.” The idea promoted by politicians and the media, but not borne out statistically, is that terrorists are predominantly of foreign and/or Muslim origin. Indeed, the worst terrorist attack in recent years in Europe was carried out by far-right Norwegian extremist Anders Breivik.

Citizenship-stripping is sometimes related to the medieval concept of banishment, particularly in academic discourse, but the practice is in many ways a resumption of racist colonial-era policies. The myth that terrorism is a threat only to western states is also not borne out: the risk and death rate is exponentially higher in Middle Eastern, African and Asian countries. Turkey has recently announced plans to remove the citizenship of “Turks who support terrorism”, and a number of Gulf States impose hefty penalties and prison sentences on individuals accused of fighting for and supporting the Islamic State militant group.

Proponents of citizenship-stripping powers seldom explain how or why they are effective as a counter-terrorism measure. Nonetheless, such measures lend legitimacy to the apparent need for the surveillance of the wider public and its movements. Rather than prosecutions, secrecy and arbitrary powers are the tools of counter-terrorism measures.