For further information please get in touch with Alison Harvey, Legal Director,

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1 ILPA Briefing for the Immigration Bill House of Lords Committee stage, Part 6, Miscellaneous, Clause 60 Deprivation if conduct seriously prejudicial to the vital interests of the UK Introduction The Immigration Law Practitioners Association (ILPA) is a charity and a professional membership association. The majority of members are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics, non-governmental organisations and individuals with an interest in the law are also members. Established nearly 30 years ago, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law through an extensive programme of training and disseminating information and by providing evidence-based research and opinion. ILPA is represented on numerous government, including Home Office and other consultative and advisory groups and has long worked with parliamentarians of all parties. This briefing replaces ILPA s 6 March briefing about clause 60. This revised amendment includes notes on new amendments and new versions of amendments. It should be read with the opinion and paper from Professor Guy Goodwin Gill, Fellow of All Souls and the opinion and fact sheet from the Open Society Institute previously circulated and all available at For further information please get in touch with Alison Harvey, Legal Director, Alison.Harvey@ilpa.org.uk, ILPA supports Lord Pannick, Baroness Lister Baroness Kennedy of the Shaws and Lord Roberts of Llandudno in their opposition to Clause 60 standing part of the Bill. None of the other amendments we have seen justify giving the government power to make persons stateless on character grounds. The Supreme Court has described how The evil of statelessness 1 became better understood following the Reich Citizenship Law of15 September 1935 which provided that all Jewish people should be stripped of their citizenship of the German Reich. Lord Wilson said Although the international growth of human rights during the past fifty years has to some extent succeeded in establishing that a person's right to have rights stems from his existence as a human being, worldwide legal disabilities with terrible practical consequences still flow from lack of nationality 2 In the words of UNHCR: To be stateless is to be without nationality or citizenship. There is no legal bond of nationality between the state and the individual. Stateless people face numerous difficulties in their daily lives: they can lack access to health care, education, property rights and the ability to move freely. They are also vulnerable to arbitrary treatment and crimes like trafficking. Their marginalization can create tensions in society and lead to instability at an international level, including, in extreme cases, conflict and displacement 3. 1 SSHD v Al Jedda [2013] UKSC Ibid

2 In his preface to the UNHCR Ministerial Intergovernmental Event on Refugees and Stateless Persons - Pledges , UN High Commissioner for Refugees (UNHCR), the UN High Commissioner for Refugees, António Gutierres, said I am especially heartened by the real breakthrough what I would describe as a quantum leap forward in relation to the protection of stateless people. awareness of the problem of statelessness has expanded significantly in all regions, and substantive progress has been made in addressing it Over sixty States made statelessness-related pledges. The pledges set out in this document constitute a profound expression of solidarity and commitment. They signal a watershed in the reinforcement of the international protection regime and, once implemented, will lead to tangible improvements in the lives of men, women, boys and girls affected by displacement and statelessness in the decade ahead. Statelessness has not been eradicated. Some 15 million people in the world are stateless. In 2001 changes to the law in Zimbabwe stripped thousands of Zimbabwean citizens of their nationality, leaving many of them stateless. We still see statelessness resulting from the break up of the former Yugoslavia and from the division of Ethiopia and Eritrea. As recently as 2013 many thousands of Dominicans of Haitian origin were rendered stateless by a reinterpretation of its laws and the secession of South Sudan from Sudan has given rise to many cases of statelessness. Conflicts of laws continue to give rise to new cases of statelessness In the UK, the question of deprivation the grounds of character tracked the wars of the 20 th century. Section 1 of the British Nationality and Status of Aliens Act 1918 converted the power to deprive into a duty and extended it to grounds of public interest: acts of disloyalty to the Crown and, provided that the Secretary of State was satisfied that the continuance of a person s certificate of naturalisation was not conducive to the public good, to any of five further facts. Following the second World War, section 20 of the British Nationality Act 1948 converted the duty back into a power, to be exercised on broadly the same grounds as before. In 1959 the UK ratified the 1954 UN Convention relating to the Status of Stateless Persons. It recited the "profound concern" of the United Nations for stateless persons and the desirability of regulating and improving their status. It did not address deprivation. When the 1961 UN Convention on the Reduction of Statelessness was negotiated the UK was a leader, not a follower. On 16 August 1961 at the Sixteenth Plenary Meeting of the Conference that agreed the Convention, the UK delegate, Mr Ross, said of deprivation of nationality that the Conference still had the duty of doing its upmost to eliminate that minor cause of statelessness as well... The UK s compromise text admitted no grounds for deprivation other than those already specified in the current law of the Contracting States... [I]t attempted to overcome... objections... by restricting the causes for deprivation of nationality to certain well-defined categories : UN doc. A/CONF.9/SR.16, 11 October 1961, 2, 3-4. At the Twentieth Plenary Meeting on 23 August 1961, the UK delegate, Mr Harvey, said:... There had been considerable discussion as to whether or not separate grounds of deprivation or nationality should be applied to natural-born and to naturalized persons. The feeling of the Group had been that the distinction was not a happy one, and it had concluded that it was unnecessary to grant extended grounds for deprivation in the case of naturalized persons. Hence the grounds mentioned applied to both types of cases. The effect of the article was to freeze the grounds of deprivation at the date on which the State acceded to the Convention, and to limit them to certain 4 October 2012, available at: [accessed 30 January 2014]

3 specified types. Paragraph 4 provided that, while the grounds could not subsequently be extended, certain modifications and improvements could be made... 5 Paragraph 4 was deleted from the final version by a vote of 12 to none, with 18 abstentions but on the basis:... that the United Kingdom understood the intention of paragraph 4 as being to make it clear that nothing in paragraph 3 should prevent States from restricting their grounds for deprivation of nationality. However, that could be implied from the terms of the Convention as a whole; paragraph 4 was therefore unnecessary its deletion would make no difference to the meaning of the Convention 6 In 1966 the UK ratified the 1961 UN Convention on the Reduction of Statelessness. To do so, parliament passed the British Nationality (No 2) Act 1964 abolishing two of the grounds for deprivation under the 1948 Act, which were not permitted by the Convention and in the case of a third, a sentence of imprisonment of over a year within five years of naturalisation, providing that the power to deprive could be exercised only where to do so would not make the person stateless. This was the beginning of the UK s limiting its powers of deprivation to prevent statelessness. Between 1949 and 1973, a total of ten citizens of the UK and Colonies were deprived of their British nationality. We do not have figures for how many were left stateless. From 1973 until the coming into force of the Nationality, Immigration and Asylum Act 2002, which prohibited deprivation on character grounds where this would leave a person stateless, no one was deprived of their British nationality, whether to be left stateless or not 7. Any suggestion that deprivation of citizenship leaving persons stateless was the norm until 2002 is thus inaccurate. The 1961 UN Convention on the Reduction of Statelessness came into force in Since that time the UK has not deprived anyone of their nationality on grounds of conduct or character where this would leave them stateless. It is arguable that the UK has no power to do so. While it took advantage of the opportunity under Article 8(3) of that Convention to retain its existing powers to deprive persons of their nationality on character grounds when it ratified the 1961 Convention, retaining powers to deprive naturalised persons of their citizenship on the grounds of their conduct seriously prejudicial to the vital interests of the UK, it gave up those powers in 2002, part of the a reorganisation of the law on deprivation that saw take powers to deprive those born British, as well as the naturalised, of their British nationality. It is arguable that having given up these powers, the UK cannot now take them back. The UK s declaration was to Article 8(3) which states Article 8 (1(. A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless. (3). Notwithstanding the provisions of paragraph 1 of this article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its being grounds existing in its national law at that time: 5 UN doc. A/CONF.9/SR.20, 11 October 1961, Twenty-second Plenary Meeting, 24 August 1961: UN doc. A/CONF.9/SR.22, 11 October 1961, 7. 7 HL Deb 8 July 2002 col 66W

4 The language of retain and retention sits ill with the notion of giving up powers to make persons stateless and then reawakening them 8. It also sits ill with what happened subsequently in British nationality law. In 2002 the UK took the right to deprive the natural born of their British nationality. In.the Immigration and Asylum Act 2006, passed in the wake of the 7 July 2006 bombings in London, the UK changed the test to deprivation s being contrary to the public good the exact same test as is used in the deportation of foreign nationals. Neither of those changes are reflected in Clause 60 because they are, on any interpretation, outside the scope of the UK s declaration. Still the prohibition on deprivation leading to statelessness remained. But in 2006 the UK did another thing that would affect those made stateless were Clause 60 to become law. It changed the procedure so that rather than the Secretary of State s deciding to deprive a person of their British citizenship, the person appealing that decision and the Secretary of State making a deprivation order only if that appeal failed, the Secretary of State makes the order first and the person ceases to become British and would, were clause 60 to become law, become stateless. If the person wins their appeal, they can be made British again. Thus if Clause 60 becomes law then a person will become stateless, however erroneous the decision, and stay stateless for the entire period of their appeal. The Minister Mr Brokenshire ended his remarks in the Commons debate saying..this matter is before the other place, and I am sure that it will give the issues careful scrutiny and consideration. 9 The amendments on the order paper attest to such scrutiny and have themselves given heart to persons working in different parts of the world to eradicate statelessness. AMENDMENT 74 Baroness Smith of Basildon, Lord Rosser, Baroness Kennedy of the Shaws Purpose: To require the Secretary of State, prior to depriving a person of their nationality where this would make them stateless to have to obtain prior permission to do so from the Court. The court would determine whether the decision to deprive was in accordance with the law. Briefing This is a revised version of the manuscript amendment that was laid at House of Commons report and previously appeared on the House of Lords Order paper. It is much improved and the revisions mean that it now offers a real prospect of procedural protection. Not enough to justify giving government the power to make person s stateless, but ILPA would be pleased to see its scope extended to all deprivation of citizenship cases, not just those involving a risk of statelessness. The European Convention on Human Rights Supplementary Memorandum by the Home Office about this clause 10 argues that the clause is compatible with human rights because 8 For more detailed argument on this point see the Opinion of the Open Society Institute and see the Opinion by Professor Goodwin Gill. 9 See also

5 Deprivation decisions would be subject to supervision by the courts to ensure that they were necessary and proportionate and not otherwise unlawful. But as described above, if Clause 60 becomes law then a person will become stateless, however erroneous the decision, and stay stateless for the entire period of their appeal so that supervision now comes too late. It was in the House of Lords that the 2006 change in procedure was made. The House did not realise what it was doing. Lord Falconer introduced repeal of section 40A(6) of the British Nationality Act 1981 in Amendment 52 reversed the procedure so that henceforth it would be deprive first, appeal later. He said only: Amendments Nos. 50A and 52 to 59 make changes to Schedule 2, which provides for consequential amendments and transitional provision. In particular, I would like to draw the attention of noble Lords to Amendment No. 59. It introduces the transitional measure of a filter mechanism for cases applying for a review to the High Court. This is to ensure that (HL Deb 04 May 2004 vol 660 c999) Lord Rooker later explained (15 June 2004 Col 720) that the effect of the earlier amendment 52 had been unintentional. He said Although the earlier amendment was actually unintentional, having reviewed the position we believe that it would make considerable sense to be able to run the appeals the deprivation appeal on citizenship and the deportation or certification appeal together. We therefore propose to amend the relevant appeals procedure rules, subject to the approval of parliament to require the appeal against citizenship deprivation and any appeal against deportation or against certification under the 2001 Act, to be heard together. We append those debates, which are the complete record of how the House of Lords came to authorise summary exile, to this briefing. On 29 October 2010 a Home Office Freedom of Information request revealed that for 2007 (when the procedure changed) to 2010 deprivations looked like this: 2007 (I deprived whilst out of the UK) (1 deprived whilst out of the UK (5 deprived whilst out of the UK) In the case of L1 v SSHD [2013] EWCA Civ 906, the Court of Appeal recorded that it had expressed concern at an aspect of the case which arose from an undisputed finding of fact made by SIAC and set out at paragraph 12(i) of SIAC [the Special Immigration Appeals Commission]'s open judgment: "The Secretary of State's decision to deprive the appellant of his citizenship was one which had clearly been contemplated before it was taken. The natural inference, which we draw, from the events described, is that she waited until he had left the United Kingdom before setting the process in train." Mr Brokenshire in the House of Commons debate said 10 See

6 It is true that people have been deprived while outside the UK, but I do not accept that it is a particular tactic. It is simply an operational reality that in some cases the information comes to light when the person is outside the UK or that it is the final piece of the picture, confirming what has been suspected. In other cases, we may determine that the most appropriate response to the actions of an individual is to deprive that person while they are outside the UK 11 The difference between the most appropriate response and a particular tactic evades us. It also contradicts the position as described to us, as we set out in our briefings on the Crime and Courts bill 12 where we used information about deprivation of citizenship while a person is outside the UK to argue against removing a person s leave while they are outside the UK and not letting them return for their appeal. It was certainly a definite policy in the Crime and Courts Act 2013 to change the law so that if a person s leave was curtailed they could not return to the UK to exercise a right of appeal, reversing the decision of the courts in MK (Tunisia) v Secretary of State for the Home Department [2011] EWCA Civ 333. The Minister indicated in the Commons debate that there had been 27 deprivations since 2006, and we understand these to be on character grounds, since the total is otherwise 47, but we do not know how many of those 27 people were inside or outside the UK at the time. Ms Diane Abbott MP indicated in that debate that The Minister will be aware that in response to a freedom of information request, we now know that between 2010 and 2013, the Home Secretary revoked the passports of 16 British nationals under the current section 40 of the British Nationality Act 1981 on public good grounds. Again, we do not know whether they were inside or outside of the UK at the time. The Joint Committee on Human Rights records 19. We also asked the Government for more details of the cases of the 27 people who have been deprived of their citizenship since 2006 on the ground that it is conducive to the public good to do so. The Government assesses that at least six of the individuals concerned had children, but "for reasons of national security and operational effectiveness" is unable in an open letter to provide details of the number of individuals who were abroad at the time they were deprived of their citizenship or the number of deprivations that were based in whole or in part on closed material. 20. We are surprised by the Government's refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad, or of the number of cases in which the Secretary of State's decision was taken wholly or partly in reliance on information which in the Secretary of State's view should not be made public. The suggestion that this goes to operational effectiveness cannot be made good. The person deprived of their citizenship while outside the UK is taken completely by surprise. Detailing the number of cases in which this happens does not assist them at all. In 2010 it was the proper 11 Mr James Brokenshire, Minister for Security and Immigration, H.C. Deb., 11 Feb. 2014, cols. 261WH, 262WH 12 See our Briefing for Lords Report at and see our briefing for Committee stage on 22 June 2012 (right click on hyperlink to download) Briefing on Clause 25 and Amendment Nos. 148F, 148G, g149 & 149A (Restriction on right of appeal from within the United Kingdom. See also ILPA s 21 January 2011 submission to the Joint Committee on Human Rights for its enquiry The Human Rights Implications of UK Extradition Policy and see the report of that enquiry, Fifteenth Report for Session , The Human Rights Implications of UK Extradition Policy, 22 June 2011, HL Paper 156/HC 797, paragraph 224.

7 subject of a response to a freedom of information request, with no cavil. What has changed? Peers should require these figures. That which is known is recorded on the website of the Bureau of Investigative Journalism at 13 Cases include Bilal al Berjawi British Lebanese. Lost citizenship Oct Killed in USA drone strike Somalia Jan Mohamed Sakr born in London. British and Egyptian. He had never had an Egyptian passport. In Somalia when his British passport was cancelled. Lost citizenship September Killed February 2013 in a Drone strike by the United States. Reports of the strike refer to an Egyptian commander having been killed. L1 v SSHD [2013] EWCA Civ 906. L1 was a refugee, married, with British children. L1 naturalised in the early 2000s. Refugee. He travelled to Sudan each summer. It has been discovered from disclosure in the documents before the court that a decision to deprive him of his nationality was taken in He had been overseas but it was learned that, it being the end of the children s holidays, he was returning to the UK. The deprivation proceedings were halted. L1 returned to the UK and was at liberty. Nothing happened until the next summer when L1 went again to Sudan for the summer. The decision to deprive was served at his home in London and the deprivation order signed straight away. L1 learned of this when he went to the Embassy to get his wife s documents. He was told that he was no longer a citizen and should surrender his passport. Documents disclosed in the case made clear that L1 s precarious health (a life-threatening brain condition) and the risks of death together with concerns that he would have a case based on Article 3 (prohibition on torture, inhuman and degrading treatment) if deprived in the UK were recognised although none of this had been revealed in the open proceedings before the Special Immigration Appeals Commission. It was found as a fact in the case that the Secretary of State had waited until L1 was out of the country before setting the process in train. S1 case now going to the Supreme Court Had three British born sons, all of whom have been deprived of their citizenship and all of whom have been stranded in Pakistan. Madhi Hashi Had come to the UK as a child asylum seeker. Deprived of citizenship June He disappeared, in Djibouti, shortly after he lost his British citizenship. His next known whereabouts as in a jail in New York, where he awaits trial. Y1 a British citizen who had been born in Afghanistan. He was detained by British forces in Afghanistan in July 2011 and deprived of his British citizenship in August Mr Justice Irwin found that the Security service advice had been that he remain under surveillance in the UK but that this had been rejected and he had been deprived of his citizenship while out of the UK. 13 See also

8 A person deprived of their citizenship while in the UK has an in-country right of appeal against that deprivation. A person outside does not. We consider that is wrong where the effect of the deprivation leaves a person outside the UK with another nationality, let alone where it leaves them stateless. The courts and parliament have expressed grave concerns over deportations with assurances where there are fears that a person will face torture or extrajudicial execution on return. In the debate in the House of Commons the Minister strenuously denied that the killings by the US as enemy combatants of two persons deprived of their citizenship by the UK were in any way linked to the deprivations 14. However, this is summary exile: a person finds themselves outside the UK, if Clause 60 becomes, law stateless outside the UK, before there has been any challenge to the Secretary of State s decision. Trying to conduct an appeal before the Special Immigration Appeals Commission is fraught with difficulty at the best of times. When the client is overseas, it is well-nigh impossible. Because of the closed material system, evidence made available to the appellant is drip-fed. It then has to be discussed with the appellant. But a person accused of endangering national security may be at enormous risk in even discussing the allegations from the country in which they find themselves (and are trapped) at the moment of being made stateless. The safeguards that would make a difference in practice are: a) That a person can only be deprived of their citizenship when they are within the UK; b) That deprivation take effect only after any appeals against that decision have finally been determined. c) That appeals against deprivation be suspensive. The House of Lords Committee on the Constitution has suggested that the following questions be asked: Is it a response to a general problem or is it designed to address only the particular case of Al- Jedda; if the former, could the Government provide details of further instances? Is it intended that the power be exercised only in respect of naturalised citizens who are not in the United Kingdom? What would happen to any naturalised citizen in the United Kingdom who is made stateless by the exercise of the power? Would such a person be able to work / be housed / have access to healthcare, etc? What would happen to any dependants of a person who is rendered stateless by the exercise of the power? Should the new power be exercisable not by the Secretary of State but by a court on the application of the Secretary of State? 15 AMENDMENT 75 Lord Lester of Herne Hill, Lord Pannick, Baroness Lister of Burtersett Purpose To provide that deprivation of citizenship resulting in statelessness cannot take place unless it is a necessary and proportionate response Feb 2014 : Column 261WH 15 See 6 th Report of Session , Immigration Bill, at

9 Briefing ILPA does not consider that it would ever be necessary and proportionate to deprive a person of their citizenship making them stateless and therefore supports this amendment which builds on suggestions by the Joint Committee on Human Rights: 45. We do not accept the Government's argument that, generally speaking and in the absence of exceptional circumstances, a decision to deprive a naturalised citizen of their citizenship while they are physically in the territory of another State does not engage the individual's Convention rights under Articles 2, 3 and 8 ECHR because they are outside the UK's jurisdiction for ECHR purposes. In our view, a deprivation decision must be compatible with those Articles whether the citizen concerned is abroad or in the UK at the time of the deprivation decision. 46. The effect of the ECHR applying to all deprivation of citizenship decisions is to reinforce the requirements contained in other treaties. These are that nationality must not be taken away arbitrarily, but must be in accordance with the law; that the power must be regulated by a legal framework which ensures that the power is not exercised arbitrarily or in a discriminatory manner,[25] but only where necessary and proportionate; and that there must be a practically effective right of access to a court and a fair hearing in the determination of the lawfulness of the deprivation, including its compatibility with other international obligations We welcome the Government's indication that it would adopt a proportionality approach to deciding whether or not to exercise the new power in clause 60 to deprive of citizenship. However, in our view the importance of the concepts of necessity and proportionality as safeguards against arbitrariness is such that we recommend that they are included on the face of the Bill as conditions which have to be satisfied before the Secretary of State makes a deprivation order. In our view this could make a real practical difference in particular cases. We note, for example, that the Government does not want to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country, whereas it is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose. The following amendment would give effect to this recommendation: Page 47, line 41, after sub-paragraph (b) insert "(c) the deprivation of citizenship is a necessary and proportionate response to such conduct" Our concern with the amendment is that the question of whether the deprivation was a necessary and proportionate response would be grafted onto current procedures and thus would take place only after deprivation had taken place and the person had been made stateless. The amendment could thus usefully be combined with amendment 74 above. AMENDMENT 76 Lord Lester of Herne Hill, Lord Pannick, Baroness Lister of Burtersett Purpose To provide that deprivation of citizenship resulting in statelessness cannot take place

10 unless it consistent with the UK s obligations under international law. Briefing This derives from the recommendation of the Joint Committee on Human Rights We would be very concerned if the Government's main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK's international obligations to the State who admitted the British citizen to its territory. This concern about the intended use of the power makes it all the more important, in our view, that the Government provides to Parliament the information we have requested about the number of cases since 2006 in which the power to deprive of citizenship has been exercised while the individual is abroad, as this will help Parliament to reach a view about the likely use of the new power. 39. We also recommend that the Bill be amended to make it a precondition of the making of an order by the Secretary of State that, in the circumstances of the particular case, the deprivation is compatible with the UK's obligations under international law. ILPA does not consider that it would ever be consistent with the UK s obligations under international law to deprive a person of their citizenship in circumstances that would make them stateless. As set out above, we consider it arguable that having cased to rely on its reservation/declaration to Article 8(3) of the 1961 UN Convention on the Reduction of Statelessness the UK cannot now revive it given the language of retention in Article 8(3). See above and see the Opinion from the Open Society Institute. We also consider that where deprivation out of the country is concerned, the UK cannot refuse to take responsibility for, and indeed readmit, a former national whom it has deprived of citizenship and left stateless without thereby breaching its obligations toward other States:... In law, Fuchs could be deported but no other country can be required to accept a stateless deportee. Therefore, the power of deportation is not effectively available in this case. R. A Butler, 606 HC Deb, col (case of Klaus Fuchs) Article 9 of the draft articles on the expulsion of aliens adopted by the International Law Commission provides: Article 9 Deprivation of nationality for the sole purpose of expulsion A State shall not make its national an alien, by deprivation of nationality, for the sole purpose of expelling him or her. 17 The Committee says in its commentary deprivation of nationality, insofar as it has no other justification than the State s desire to expel the individual, would be abusive, indeed arbitrary within the meaning of article 15, paragraph 2, of the Universal Declaration of Human Rights See its legislative scrutiny report Immigration Bill: Second report at 17 Report of the 64th Session: UN doc A/67/10 (2012), Chapter IV Expulsion of aliens. 18 Ibid.

11 See further the Opinion of Professor Goodwin Gill. As he explains, this obligation does not appear to have been appreciated in the European Convention on Human Rights Supplementary Memorandum by the Home Office about this clause 19. We therefore support this probing amendment which builds on suggestions by the Joint Committee on Human Rights. Our only concern with the amendment is that the question of whether the deprivation was a necessary and proportionate response would be grafted onto current procedures and thus would take place only after deprivation had taken place and the person had been made stateless. The amendment could thus usefully be combined with amendment 74 above. As recorded in the House of Commons debates on the bill, our briefing on the amendment that became clause 60 was prepared and sent in the small hours of the morning before the debate, the clause having only appeared on the order paper the previous day. But we did manage to locate and cite in it the very memorable speech of the late Lord Kingsland when the Nationality Immigration and Asylum Act 2002 was debated: Clause 4(2) says: The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of 1. (a) the United Kingdom, or 2. (b) a British overseas territory". Subsection (4) qualifies that by adding that citizenship cannot be so deprived if it would render the citizen stateless. Our amendment would add to that qualification, or if the seriously prejudicial conduct in question constitutes an offence under the Terrorism Act 2000 (c.11), the Anti-terrorism, Crime and Security Act 2001 (c.24) or general criminal law". We have tabled the amendment because, under the clause, the Secretary of State can override any single stipulation of criminal law in the land by this massive discretionary power, which depends solely on his subjective judgment. Why should such a person not be prosecuted in the normal way in our criminal courts instead? I hope that the Minister will at least be able to reassure noble Lords indeed, to undertake that the proposals in this clause will not be used so as to evade the obligation to prosecute terrorists and others who commit serious crimes against the United Kingdom under any of our criminal laws. I conclude with this point. Clause 4 must be against the rules of comity in international law. If we identify someone as a person proposing to commit a serious terrorist offence, for example, surely the obligation is on us to deal with that person. If we simply deport him, we shall be handing on in my submission, irresponsibly this terrorist problem to another state which may not have the same capability of dealing with it as we do. It cannot be a proper response to the terrorist threat to refuse to deal with it ourselves if the act involved occurs in our jurisdiction or in another jurisdiction from which we can gain extradition. That would be irresponsible of us. HL Report 9 October 2002, cols In the wake of the 11 September 2001 bombings in the United States of America there was the utmost concern for all matters of national security, the UK considered it proper to make provision in its law to prohibit deprivation of citizenship on the grounds that this was conducive to 19 See

12 the public good, where such deprivation would make a person stateless. A person with no ties to any State, for which no State has responsibility is not obviously a lesser threat to national security, as Lord Kingsland identified. We therefore support this amendment which builds on suggestions by the Joint Committee on Human Rights. Our only concern with the amendment is that the question of whether the deprivation was a necessary and proportionate response would be grafted onto current procedures and thus would take place only after deprivation had taken place and the person had been made stateless. The amendment could thus usefully be combined with amendment 74 above. AMENDMENT 76A Baroness Lister of Burtersett, Baroness Kennedy of the Shaws Purpose To provide that there is power to make a person stateless by depriving them of their citizenship only where that person is within the UK and further to limit the power so that the Secretary of State may only deprive a person of their British citizenship in circumstances that would leave them stateless if they will be able promptly, and in any event within six months, to be able to avail themselves of another nationality. Briefing ILPA considers that this is a useful amendment to focus attention upon out of country deprivation and to probe the Home Secretary s remarks when introducing the clause in the House of Commons. ILPA welcomes the notion that a person can only be deprived of their citizenship when in the UK. This has particular resonance in a case where the person will be left stateless for the reasons described in our briefing to amendment 76 above. In 2013 the UK Government lost the case of Al Jedda [2013] UKSC 62. The Secretary of State sought to deprive Mr Al Jedda of his British citizenship on the basis that he had, or could at once acquire Iraqi nationality and should forfeit his British nationality because this was conducive to the public good for reasons of national security. It was held that Mr Al Jedda did not have Iraqi nationality. It was held that whatever the prospects of his acquiring British nationality, the law did not permit the Secretary of State to make him stateless. It is that law that the Secretary of State seeks to change. The Secretary of State fought the Al Jedda case on the basis that Mr Jedda was not stateless. She then argued that if he were to become so it would be because of his own failure, rapidly and without formality, to reacquire resume his Iraqi nationality. She did not argue that his character, conduct or associations made it permissible to contemplate consigning him to life as stateless person. The Home Secretary indicated when the clause was debated in the House of Commons that The important point is that the process applies in cases where the individual could access the citizenship of another country, and it would be open to them to apply for such citizenship. That is the whole point. 20 The Joint Committee on Human rights picked up that this is inaccurate: 32. We asked the Government whether it is intended that the new power to deprive citizenship should only be exercised when the person is entitled to acquire citizenship of another country. The Government replied: 20 HC Deb., 30 Jan. 2014, col

13 To clarify the position, the power is not limited only to those who have recourse another nationality. The new clause could result in a naturalised person being left stateless as a consequence of being deprived of their British citizenship. The point that I and other Ministers have made on this issue is that we expect a high proportion of such cases to be able to acquire another nationality. However, we accept that will not always be possible. 33. We were surprised by the Minister's response, compared to what the Home Secretary told the Commons, because it suggests that the scope of the power is intended to be significantly wider than was first indicated. We consider that a limitation of the power to cases where the person would be able promptly to avail themselves of the protection of another State would not provide effective protection in practice and would suggest, as did the Home Secretary s speech to the Commons, that this was somehow a lesser statelessness. As to the latter, that was her argument in the case of Al Jedda. The Supreme Court rejected it in no uncertain terms 32. a facility for the Secretary of State to make an alternative assertion that, albeit not holding another nationality at the date of the order, the person could, with whatever degree of ease and speed, re-acquire another nationality would mire the application of the subsection in deeper complexity. In order to make his argument less unpalatable to its audience, Mr Swift limited it to the re-acquisition of a former nationality, as opposed to the acquisition of a fresh nationality. But, with respect, the limitation is illogical; 33. the Secretary of State therefore invites the court to place a gloss, as substantial as it is unwarranted, upon the words of the subsection. That rejection was as a matter of law, but pragmatic consideration favour the same approach. It can be difficult for a person to prove a right to nationality; what looks like a straightforward case may take years to resolve. The Guantanamo Bay detainee, the Australian David Hicks, was entitled to register as a British national under provisions designed to correct sex discrimination: his mother was British and until 1983 a British woman could not pass on her nationality to her children born abroad. But the Government argued, despite the clear words of the statute, that it could refuse to register Mr Hicks on the grounds of his character. When it eventually acknowledged that it had no power to refuse to register him, it nonetheless determined that it would register him then immediately deprive him of his newly acquired British nationality 21. There are many documented instances of other States refusing to register or naturalise persons or to recognise their right to their citizenship. In Struggles for Citizenship in Africa, the fruit of an Open Society Institute research project, Bronwen Manby details how a legal entitlement does not necessarily translate into a passport: Kenya: I am a Kenyan Somali. Getting my passport was not easy at all, I now treasure it because of the process. I can t say am proud of it. It is our right to get passports, but in Kenya the process is a nightmare, it has now been politicized because of the upcoming election. Liberia: Getting passport in your country of birth should be a right not privilege, but in Liberia here, getting passport is being tribalized when it comes to certain ethnic groups like the Mandingo which is unconstitutional, unjustifiable and unacceptable. 22 As Mr Hicks case illustrates, being regarded as a national security risk does not make the process 21 See an and 22 Available at

14 any easier. UNHCR s guidelines on statelessness 23 are very clear: 43. An individual s nationality is to be assessed as at the time of determination of eligibility under the 1954 Convention. It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making an Article 1(1) determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures are yet to be completed, he or she cannot be considered as a national for the purposes of Article 1(1) of the 1954 Convention. Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have only been partially fulfilled or completed, the individual is still a national for the purposes of the stateless person definition. The debate is thus a chance to lay to rest the notion that the Government can purport to limit the ambit of Clause 60 in this way. We consider that the limitation of the power to deprive to cases where the person is in the UK could usefully be extended to all deprivation cases, for the reasons given in our briefing to amendment 76, not just to statelessness cases AMENDMENT 77 Lord Lester of Herne Hill, Lord Pannick, Baroness Lister of Burtersett Purpose To provide that making a decision to deprive person of nationality where this results in statelessness the UK must take into account the best interests of any child affected. Briefing This amendment which serves to highlight the web of international and domestic law obligations put in jeopardy by deprivation, whether or not resulting in summary exile. It derives from a recommendation by the Joint Committee on Human Rights. 49. We welcome the Government's acceptance that a deprivation order should not be made without taking full account of the impact on the whole family unit, and with regard to the best interests of any child affected. To ensure that the best interests of the child are treated as a primary consideration, as required by Article 3 UNCRC, we recommend an amendment to the Bill which requires the Secretary of State to take into account the best interests of any child affected when deciding whether to make a deprivation order under the new power. The following amendment gives effect to this recommendation: Page 48, line 1, after "Secretary of State" insert "must take into account the best interests of any child affected by the decision." Statelessness must be eradicated if every child is to enjoy their right to acquire a nationality as per Article 7 of the UN Convention on the Rights of the Child. A stateless person cannot pass on their nationality to their child and if that child is born in a country where there is no ius soli and 23 Guidelines on statelessness N. 1 The definition of Stateless Person in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons see

15 cannot derive nationality from the other parent, the child will be born stateless. Our only concern with the amendment is that the question of whether the deprivation was a necessary and proportionate response would be grafted onto current procedures and thus would take place only after deprivation had taken place and the person had been made stateless. The amendment could thus usefully be combined with amendment 74 above. AMENDMENT 78 Lord Lester of Herne Hill, Lord Pannick, Baroness Lister of Burtersett and AMENDMENT Purpose To ensure that the clause cannot be used to make people stateless on the basis of conduct that took place before the clause were to come into force. Thus removes any element of retrospectivity. It does leave a rather amputated clause 60(2) but the clause is assuredly improved thereby. Briefing The amendment was recommended by the Joint Committee on Human Rights RETROSPECTIVITY 63. Another aspect of the requirement that deprivations of citizenship must be "in accordance with law" is that the law governing the power must be sufficiently accessible, predictable and foreseeable to enable individuals to regulate their conduct in full knowledge of the consequences provided for by law. Generally this means that retrospective laws are not permissible other than in the most exceptional circumstances. 64. The new power of the Secretary of State to deprive a naturalised British citizen of their citizenship even if the effect of the order would be to make the individual stateless would have retrospective effect: in deciding whether to exercise the power, the Secretary of State may take account of the manner in which a person conducted him or herself before the section came into force. 65. It is also clear from the Government's answer to a written question asked by Lord Roberts of Llandudno that there will be no time limit placed on how long ago the activity considered to have been seriously prejudicial to the UK's vital interests needs to have taken place, provided it was after the individual became a British citizen.[ 66. We asked the Secretary of State to explain the justification relied on for taking the exceptional step of giving the new power retrospective effect. The Home Office considers that the new clause does not change the law in a way that those affected could not reasonably have expected, "because the UK has retained the right to render individuals stateless in the circumstances described in clause 60 as a matter of international law since 1966." The Government also believes that it is a reasonable expectation for any naturalised person, who has taken an oath or pledge when they were granted British citizenship to be loyal to the UK and its values, that any subsequent conduct which contradicts those values could threaten the status of their nationality. 67. We do not find persuasive the Government's reliance on the position in international law to provide the necessary legal certainty and predictability when the position in national law since the 2002 Act has been absolutely clear: since the passage of the Nationality, Immigration and Asylum Act of that year, the power to deprive of citizenship and leave a person stateless because of their conduct was expressly given up and no longer retained in national law. The fact that the UK may have been entitled, as a matter of international law, to change its law back again without breaching its obligations under the UN Convention on the Reduction of Statelessness does not

16 mean that all naturalised citizens could reasonably have expected that change. From 2002 they were entitled to assume, on the basis of UK law, that they were no longer exposed to the risk of statelessness. 68. The Government declined to comment on whether it intends to exercise the power in relation to Mr Al-Jedda, so as to deprive him of the benefit of the Supreme Court's judgment in his favour, arguing that it would be inappropriate to do so while his appeal against the Home Secretary's latest deprivation decision is ongoing. However, it is clear that the clause giving retrospective effect to the power would enable the Secretary of State to exercise it in relation to Mr. Al-Jedda if she considered the conditions of deprivation to be satisfied. 69. It is a well established feature of our constitutional arrangements that there is no constraint on Parliament changing the law prospectively where it disagrees with an interpretation of the law reached by even the highest court in the land. Changing the law with retrospective effect, however, is recognised to be an exceptional step which requires weighty justification; and all the more so when the effect of such retrospectivity is to enable particular individuals to be deprived of the benefit of court judgments in their favour. 70. These considerations are even weightier where the provision which is being given retrospective effect is a sanction in respect of previous conduct. In such cases, legal certainty is especially important, so that individuals are aware of the possible consequences of their conduct. That is why there is an absolute prohibition on retrospective criminal penalties. While we do not suggest that deprivation of citizenship is equivalent to a criminal penalty, it is nevertheless a very serious sanction for previous conduct, particularly where it leaves the individual stateless, and therefore akin to a penalty,[36] making the presumption against retrospectivity even stronger. 71. We are not persuaded that there are sufficiently weighty reasons to justify the new power being made retrospective, and we recommend that the Bill be amended so as to prevent it having retrospective effect. The following amendment would give effect to this recommendation: Page 48, line 1, after "Secretary of State" leave out "may take account of the manner in which a person conducted him or herself before this section came into force." AMENDMENT 79 Baroness Smith of Basildon and Lord Rosser Purpose Not known After Clause 60 AMENDMENT 79A NEW CLAUSE Reviews of deprivation of citizenship resulting in statelessness Baroness Hamwee, Lord Pannick, Lord Roberts of Llandudno, Lord Avebury Purpose Provides for an independent reviewer to complete an annual review of the operation of the powers of deprivation resulting in statelessness. This will go to the Home Secretary who must lay it before parliament. Briefing ILPA would welcome an independent reviewer for all powers of deprivation of citizenship although we should prefer that s/he reported directly to parliament rather than via the Home