Citizenship Deprivation: Punishment without Due Process

The end of the second decade of the twenty first century bears some resemblance to the start of this millennium. The CIA remains embroiled in war crimes in Afghanistan, endless wars rage around the planet and states continue to adopt increasingly repressive measures in the name of national security. The constant is a lack of justice and due process.

Then and now

Following the outbreak of the US-led war in Afghanistan in October 2001, the United States held thousands of prisoners in Afghanistan, largely in Kandahar, without access to lawyers or courts. Few questions were raised about their detention. Some were subsequently transferred to US detention at Bagram or Guantánamo Bay. Seventeen British nationals and residents were held at Guantánamo.

The men taken to Guantánamo were dubbed “the worst of the worst”. By 2006, research by Seton Hall Law School would reveal that only 5% of Guantánamo prisoners were captured by the US and the 86% who has been captured by Pakistan or the Northern Alliance “were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies”. Eighteen years on, more prisoners have died at Guantánamo than have been convicted.

Northeast Syria is the new Kandahar where US allies, the Kurdish-led Syrian Democratic Forces (SDF), are reported to be holding “about 12,000 men and boys suspected of ISIS affiliation […] including 2,000 to 4,000 foreigners from almost 50 different countries” in overcrowded prisons, in addition to over 100,000 Syrian and foreign women and children related to them. As well as transferring some to Iraqi custody, the SDF has called on foreign countries to repatriate their nationals.

Guantánamo now

Unlike his predecessors, US President Donald Trump has shown almost no interest in Guantánamo. His administration failed to follow through on his 2018 executive order concerning Guantánamo and he has ruled out sending further prisoners there.

Some European states have considered the possibility of creating their own Guantánamo-style detention facilities to detain returnees from Syria or Iraq indefinitely without trial. The emerging alternative, however, appears to be the creation of new Guantánamos in Iraq, a state known for its use of torture, unfair trials and mass executions. This is the likely destination for detained Syrian and Iraqi nationals. Some French nationals transferred to Iraq have been sentenced to death.

Of those who return to their home countries, a small number have faced prosecution. European states also have a number of measures they use to keep terrorism suspects, who have travelled to conflict zones or otherwise, under surveillance, such as the “fiche S” terrorism watch list in France and Terrorism Prevention and Investigation Measures (TPIM) in the United Kingdom.

Citizenship Deprivation

A common approach adopted by many western states in some form has been the expansion of citizenship deprivation measures to ensure citizens suspected of being foreign fighters or involvement in terrorism do not return home or can be removed.

As Article 15 of the Universal Declaration of Human Rights (UDHR) provides that everyone has the right to a nationality and prohibits arbitrary deprivation of nationality, and the 1961 Convention on the Reduction of Statelessness, along with other international laws, prohibits making an individual stateless through the deprivation of their citizenship, the focus has primarily been on stripping the citizenship of dual nationals.

States like Belgium and France appear keener on prosecuting dual nationals first, as “criminal conviction is an essential prerequisite to deprivation of citizenship”. On the other hand, “one of the specificities of the UK system is that citizenship deprivation can occur in the absence of criminal conviction, thus giving the executive leeway in deciding what sorts of actions can be sanctioned with deprivation.” The United Kingdom, which is not a party to the Council of Europe’s 1997 Convention on the Avoidance of Statelessness, is considered to have the “most extreme approach to citizenship removal” in Europe.

British Citizenship

The power to strip British subject (pre-1948) or citizenship status has existed since 1914. The British Nationality Act 1981 governs current nationality law with Section 40 setting out the power to deprive citizenship either on the basis of conduct not conducive to the public good or obtainment through fraud or misrepresentation. Only the former is relevant here. Between 1973 and 2002 no citizenship deprivation orders were made.

The post 9/11 context has seen the rules relaxed and extended, firstly, in 2002, with a new “seriously prejudicial to the vital interests” of the United Kingdom test, which was only ever applied to Abu Hamza. For the first time, British-born citizens could also be deprived of British citizenship. A more relaxed “conducive to the public good” threshold was introduced in 2006, taken from immigration law grounds for the deportation of non-nationals. Three people had their citizenship stripped on this basis by the previous Labour government. Between 2010 and 2014, under the Coalition government, this number went up to 24.

The turning point was 2014 when the failure to have the citizenship of Iraqi-born naturalised citizen Hilal Al-Jedda revoked, rendering him stateless, led the Home Secretary to introduce provisions making it possible to deprive citizenship even if it rendered a person stateless if citizenship was acquired through naturalisation, the Home Secretary is satisfied that their conduct is “seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory” and has reasonable grounds to be believe they can acquire citizenship of another country.

Where returnees from Syria are concerned: “where a person has dual nationality, the British response has been to deprive them of their British citizenship”. Since 2010, 150 citizenship deprivation orders on national security grounds have been made.

Appeal

The power to make citizenship deprivation orders lies with the Home Secretary. Written notice must be served to the person concerned, usually at their UK address. The appeal period is 28 days and in such cases is made to the Special Immigration Appeals Commission (SIAC), a notoriously secretive court, where the appellant and their counsel may not learn the full case against him or her in open court or judgment or be able to challenge the evidence against them.

Since many of these notices are sent while the person concerned is out of the country, it is often only later that they become aware that such an order has been made, frustrating the ability to appeal and communicate effectively and instruct counsel.

In addition, “judicial scrutiny […] is weakened by the tendency of judges to defer to the executive in respect of decisions relating to national security”. The only case to have been decided by the European Court of Human Rights on this issue concerned K2, a naturalised British citizen born in Sudan. In 2010, the Home Secretary revoked his citizenship, while he was in Sudan, “on account of his terrorism-related activities and his links to extremists”. He unsuccessfully appealed his inability to appeal within the UK and to know the full argument against him, given the use of closed material procedures at SIAC; the Court held the UK government had acted lawfully. In 2017, the year this decision was made, citizenship deprivation orders rocketed from “14 people in 2016” to 104.

On the other hand, in 2018, SIAC found that the Home Secretary’s decision in 2017 to deprive two British Bangladeshis, E3 and N3, who were not dual nationals, of their citizenship was unlawful as it rendered them stateless; in this case, neither man was alleged to have any connection to ISIS. This followed the case of a British Bangladeshi woman, G3, whose citizenship was stripped in 2017 for alleged involvement with ISIS, who also successfully appealed on the basis that she would otherwise be stateless.

Criticism

The broad powers granted to the Home Secretary have been widely criticised by MPs, lawyers, academics and civil society organisations on many grounds.

It creates a two-tier citizenship system where British-born citizens, “second or third generation immigrants of foreign descent may be deprived of their citizenship, even if they hold no other discernible link with their ‘country of origin’.” Citizenship has become a privilege that some must earn and only the allegiances of British citizens whose parents and/or grandparents are immigrants are questioned.

While alienation is often cited as a root cause of radicalisation, citizenship deprivation only marginalises further, particularly when aid workers in Syria are also targeted.  Known recipients of such orders are almost wholly from the Muslim community. This extends the impact beyond individuals and their families, and becomes a disciplinary measure to control the actions and thoughts of an entire community.

It is often argued that since British and European citizens who have travelled to Syria and Iraq to join ISIS were radicalised and made the decision to join the organisation in their home countries that they should be prosecuted there rather than states washing their hands of responsibility. Some have asked to return to be prosecuted. Of those who have returned to the UK only 10% have faced prosecution. Since prosecution cannot be initiated until an individual enters the UK, citizenship deprivation rules this out.

Review

The powers granted to the Home Secretary in the 2014 law are subject to review by the Independent Reviewer of Terrorism Legislation. Only one such review has been conducted by Lord David Anderson QC, covering the period from July 2014 to July 2015, at which point the powers had not been used. A further review for the period up to July 2018 has not been produced. The position of independent reviewer was vacant for six months until May 2019 when it was assumed by Jonathan Hall QC, who has represented the government in a national security deportation at SIAC. No announcement has been made about the outstanding review.

The government appears keen to avoid scrutiny of the powers and has failed to provide adequate statistics about the number of people have had their citizenship stripped or respond to a freedom of information request to provide them. In his review, Anderson noted that the “exact number of British citizens that have found their citizenship withdrawn while abroad is kept secret on the grounds of protecting national security”.

Anderson used his 2016 review to set out his concerns about the powers, singling out two in particular: the breadth of the discretion given to the Home Secretary and the lack of judicial approval before the deprivation is order, which although consistent with immigration and nationality decisions is inconsistent with counterterrorism measures.

He also summarised arguments that characterise citizenship deprivation as an “ineffective and counter-productive weapon against terrorism” as it exports the problem without addressing it, involves costly legal challenges in terms of time and money and “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.” Similar arguments have been made by academics and politicians.

Consequences

Citizenship deprivation is far more than medieval-style banishment. It tears families apart, leaves individuals penniless and stateless and in a state of limbo. A sanction for unspecified offences, it is extreme in nature and has uncertain consequences for those subjected to it. It can leaves individuals vulnerable to abuse by other states and be fatal.

In June 2012, Somali-born British citizen Mahdi Hashi had his citizenship revoked while living in Somalia, rendering him stateless. In neighbouring Djibouti, where he travelled to visit the British consulate, he was arrested and rendered to US intelligence officers. He claimed that he and two other men were subject to torture by US officials at a secret facility there and he was later held secretly in the US prior to being charged in late 2012. He was held in solitary confinement ahead of his 2015 trial where he pleaded guilty to membership of Al-Shabaab and was given a 9-year sentence. He remains in solitary confinement at a maximum security prison. Meanwhile, in the UK, he lost his appeal against citizenship deprivation in 2015, with the courts claiming he could still acquire Somali citizenship and had thus made himself stateless. The government has not been held responsible for what it might have known about his case prior to his arrest and rendition.

While the British government has faced criticism of its decision to “authorize a secret drone strike against a British target in Syria”, in “summary executions from the air”, no questions were asked when two former British citizens were targeted and assassinated in US drone strikes in Somalia after their citizenship was stripped in 2010.

More recently, while media debate has raged over the possibility of capital trial for two ISIS militants dubbed the Beatles, who had their British citizenship stripped, in the US, a similar fate awaits many others who have had their British citizenship removed while detained in Syria and face the prospect of the death penalty before ad hoc courts. The mother of one of the two Beatles is seeking to have her son tried in the UK. The men’s fear of being rendered by the US came true after the US seized custody of them in October.

What value?

Citizenship deprivation as a means of protecting national security becomes quite ineffective in the current context of cyber and other threats, including organised crime. Borders become insignificant in a time of remote control drone warfare and when murder can be “directed” online. With Shamima Begum reported to have left the UK using her sister’s passport and with modern slavery and human trafficking rampant, there is nothing to stop individuals either re-entering the country on a false passport or through trafficking.

In a UK context, citizenship deprivation is punishment without due process. It is a way of dismissing serious issues without due consideration. It is no surprise that the 2014 amendment was pushed through at the last minute in the same Immigration Act that produced the hostile environment. Calls for prosecution and the impact on legal and defence rights have been “overshadowed by the executive’s claim that citizenship deprivation was necessary in relation to national security, and the threat posed by radicalized UK citizens travelling to join the civil war in Syria.”

At the same time, the British government is currently considering a number of measures to protect the armed forces from prosecution and investigation in armed conflict, citing the large number of cases that have been brought particularly in respect to Iraq. The British government has also ruled out a judge-led inquiry into its role in CIA torture and limited other efforts to hold it accountable.

The UK is not alone; other states are also keen to avoid accountability. That states are prepared to let lives hang in limbo is best demonstrated by the 40 prisoners who remain at Guantánamo after 18 years, largely without charge or trial. On the other hand, the US has worked actively to ensure its own war crimes in Afghanistan are not brought to light by the International Criminal Court.