United Kingdom’s Legislation on Citizenship Deprivation Measures and its Compatibility with Article 6 and 8 of the ECHR.

LLM Thesis Public International Law Renée van den Elsen Student number: 10070850 Supervisor: Dr. Rosanne van Alebeek Second reader: Prof. Yvonne Donders Submitted 15 July 2016

Abstract The recent surge in terror threats on European soil, mainly posed by foreign fighters, has led to an increase in counter-terrorism legislation and policies. The United Kingdom is a noteworthy example of a state that introduced very extensive legislation. It has introduced legislation that allows the Secretary of State to deprive anyone suspected of being involved in terrorism of his or her UK citizenship. This thesis tries to answer whether UK’s legislation on citizenship deprivation measures is compatible with Article 6 and 8 of the ECHR. The British Nationality Act 1981, as amended in 2002, 2006 and 2014, is the statutory legal basis for the deprivation measures. This thesis assesses the amended British Nationality Act 1981 in light of the relevant criteria developed in ECHR jurisprudence. As a general rule Article 6 is not applicable to nationality decisions, however this thesis will show that this is different for cases concerning deprivation measures. When the deprivation order is based on closed material, the procedure will take place before the Special Immigration and Appeals Commission (SIAC). This thesis shows that many elements of the SIAC procedure conflict with the requirements of Article 6 ECHR. Furthermore, since nationality is an intrinsic part of someone’s social identity, which is a part of a person’s private life, the legislation raises an issue under Article 8 ECHR. It is argued that there is a less far-reaching measure available to protect the national security and public safety of the UK. Henceforth, the legislation that provides for deprivation measures cannot considered to be necessary in a democratic society and consequently constitutes a violation of Article 8 ECHR. Lastly, while it is easy to understand the motivation behind the extensive legislation, this assessment illustrates that one must be wary that the importance of protecting human rights is not overlooked when making such extensive legislation.

2

TABLE OF CONTENTS

I. Introduction 4 1. Legal Problem and Research Question 7 II. Legal Framework 8 1. Article 6 ECHR 8 1.1 Applicability of Article 6 ECHR 8 1.2 Compliance with Article 6 ECHR 12 2. Article 8 ECHR 13 3. Methodological Limitations 13 4. Definitions 14 4.1 Citizenship & Nationality 14 4.2 Loss & Deprivation 15 III. UK’s Legislation on Citizenship Deprivation over the Years 15 1. History of UK’s Nationality Legislation 15 2. Current Nationality Legislation in the UK 16 2.1 The 1981 British Nationality Act 16 2.2 The 2002 Nationality, Immigration and Asylum Act 16 2.3 The 2006 Immigration, Asylum and Nationality Act 18 2.4 The 2014 Immigration Act 18 IV. The Measure of Deprivation of Nationality in Light of Articles 6 and 8 ECHR 1. Legislation on Deprivation of Citizenship Measures 20 2. Compatibility with Article 6 ECHR 21 3. Compatibility with Article 8 ECHR 27 3.1 Issue of Discrimination under Article 14 ECHR 32 V. Conclusion 33

Bibliography 35

3 I. Introduction In recent times, terrorist attacks on European soil have dominated the news. The world has seen the emergence of global terrorism and states all over the world have reacted with widespread and far reaching security and counter terrorism policies. The terrorist organisation ‘Islamic State’1 claims to be responsible for many of these attacks resulting in the death of innocent civilians. Authorities in Europe have expressed strong concerns about this development and are currently engaged in finding the best solution to this international security problem, by enhancing their intelligence agency capabilities and authorizing the associated institutional and legal reforms needed to support their fight against terrorism. Due to the surge in terrorism, attention has increased for the threat posed by nationals who travel abroad to join IS, Al-Nusra or other terrorist movements as a so-called ‘foreign fighter’2, and consequently, after having received training, instructions or both, can return to their home country. The phenomenon of foreign fighters is hardly new or confined to the civil war in Syria alone.3 The number of individuals that identified with the jihadist mission and have been involved as volunteers between 1960 and 2000 in various conflicts is estimated to lie somewhere between 10,000 and 30,000.4 However, the number of foreign fighters that travelled to Iraq and Syria since the beginning of the conflict in 2011 is estimated between 27,000 and 31,000.5 Among those who travelled to Iraq and Syria since 2011, more than

1 Hereinafter ‘IS’ 2 There exists no clear-cut legal definition of ‘foreign fighter’, but in this thesis the definition formulated by S. Kraehenmann will be adopted: ‘A foreign fighter is an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship’ see: S Kraehenmann, ‘Academy Briefing No. 7: Foreign Fighters Under International Law’ (2014) Geneva Academy of International Humanitarian Law and Human Rights Briefings, p.6 available at: http://www.genevaacademy.ch/docs/publications/Briefings%20and%20In%20breifs/Foreign%20Fight ers%20Under%20International%20Law%20Briefing%20no7.pdf Moreover, from a terminological perspective the concept of foreign fighters should not be oversimplified by equating the phenomenon of a foreign fighter to ‘foreign-trained fighter’. In practice, however, it might be difficult to distinguish the two: individuals who travelled abroad with the intention to join the battlefield abroad may be recruited and trained to carry out attacks ‘at home’ without having actually participated in the combat, and vice versa. Ibid, p.6 3 Foreign fighters were also involved for example in the Spanish Civil War in 1936, see D. Malet, ‘Why Foreign Fighters? Historical Perspective and Solution’ 53 (4) Orbis (2010) p. 97, 98. 4 T. Hegghammer, ‘The Rise of Muslim Foreign Fighters: Islam and the Globalization of Jihad’ (2011) 35 (3) International Security (first page article), 53 5 The Soufan Group, ‘Foreign Fighters, An Updated Assessment of the Flow of Foreign Fighters into Syria and Iraq’ (December 2015) available at: http://soufangroup.com/wp - content/uploads/2015/12/TSG_ForeignFightersUpdate3.pdf

4 5,000 individuals were European Union nationals.6 The average rate of returnees to Western countries is around 20-30%.7 The concerns related to foreign fighters are twofold.8 First, it is feared that their participation prolongs and exacerbates the original conflict and that they will engage in acts of barbarian nature abroad. The second concern, which is much higher on the agenda of policymakers in Europe, is the fear of the ‘blowback effect’. The ‘blowback effect’ refers to the threat that foreign fighters pose when they return to their home countries or to a third country after concluding their time abroad. Hegghammer underlines that the majority of them prefers to fight abroad and that only a few have the desire to return and perpetrate acts of a terrorist nature in their home country.9 Yet, as recent history has proven, the acts of a small number of returned fighters can have catastrophic consequences. A significant number of violent incidents that occurred within Western Europe since 2011 are associated with returned jihadist foreign fighters.10 Most well-known examples are the deadly attacks in a Jewish Museum in Brussels, which were perpetrated by a returned foreign fighter from Syria, the Charlie Hebdo attack of which one of the perpetrators was trained in Yemen by Al Qaeda and the Paris attacks in November 2015, multiple perpetrators of these attacks spent time in Syria or were in any other way associated with the Islamic State in Syria.11 These terrible incidents have made it clear to policymakers and legislators that the risk of the ‘blowback effect’ is not an abstract one, and needs an urgent and adequate response. The overarching international legal response to the recent increased terrorism threat and specifically the foreign fighters phenomenon was the United Nations Security Council Resolution 2178 adopted under Chapter VII of the UN Charter. Paragraph 6 of that Resolution recalls that:

6 Of which almost 3,700 foreign fighters come from just four countries: France (1,700), United Kingdom (760), Germany (760) and Belgium (470). 7 The Soufan Group, p. 4 8 In Zürich Center for Security Studies, ‘Foreign Fighters: An Overview of Responses in Eleven Countries’ (2014) p. 4. Available at: http://www.css.ethz.ch/content/dam/ethz/special-interest/gess/cis/center- for-securities-studies/pdfs/Foreign_Fighters_2014.pdf 9 T. Hegghammer, ‘Should I Stay or Should I Go? Explaining Variation in Western Jihadists, Choice Between Domestic and Foreign Fighting’ American Political Science Review (2013) p. 12 10 E. Bakker and J. de Roy van Zuijdewijn, ‘Jihadist Foreign Fighter Phenomenon in Western Europe: A Low-Probability, High-Impact Threat, International Centre for Counter-Terrorism – The Hague (October 2015), p 5-8. Available at: http://icct.nl/wp-content/uploads/2015/11/ICCT-Bakker- DeRoyvanZuijdewijn-Jihadist-Foreign-Fighter-Phenomenon-in-Western-Europe-October2015.pdf 11 International Centre for Counter-Terrorism – The Hague, The Foreign Fighters Phenomenon in the European Union: Profiles, Threats and Policies (April 2016) available at: http://icct.nl/wp- content/uploads/2016/03/ICCT-Report_Foreign-Fighters-Phenomenon-in-the-EU_1-April- 2016_including-AnnexesLinks.pdf

5 Member states should criminalize their nationals [and other individuals] who travel or attempt to travel to a State other than their States of residence or nationality, (…), for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.12

Paragraph 8 of the same document decides that member states shall prevent the entry into or transit to their territory of individuals of whom the state has reasonable ground to believe that he or she plans to engage in acts described in paragraph 6 (…), however the States are not obliged to deny entry or require the departure of its own nationals or permanent resident from its territories.13 European Union member states address the problem using various kinds of tools including criminal law, administrative measures and ‘soft tools’, such as anti-radicalisation programs and campaigns.14 Individual EU member states have adopted new legislation complementing the legislation and measures taken by the UN and the EU that address the issue of foreign fighters. For example, in 2013 Belgium amended its Criminal Code by introducing Article 140, which, inter alia, punishes actions that constitute “taking part in the activities of a terrorist group, (…) with the true knowledge that this participation contributes to the perpetration of a crime or an offence by the terrorist group”. Under some circumstances this can be used to prosecute foreign fighters or those travelling to become one.15 Other states have introduced new legislation or amended existing legislation that allows for measures such as the deprivation of citizenship or the taking of passports of those who are suspected to be involved in terrorism. Such domestic measures are allowed under UNSCR 2178.16 However, these expansions in domestic capabilities and exercise of discretion raises doubts as to the compatibility with obligations under international human rights law. The gravity of the measure of citizenship deprivation warrants a vigilant safeguarding of the accompanying human rights that are at stake.

12 United Nations Security Resolution 2178 (S/RES/2178) (2014) §6(a) 13 Ibid, §8. 14 European Parliament, Briefing ‘Foreign Fighters, Member States’ responses and EU action in an international context’ (February 2015) available at: http://www.europarl.europa.eu/EPRS/EPRS- Briefing-548980-Foreign-fighters-FINAL.pdf 15 Zürich Center for Security Studies, ‘Foreign Fighters: An Overview of Responses in Eleven Countries’ (2014), 7; Commission Staff Working Document Accompanying the document Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/919/JHA amending Framework Decision 2002/475/JHA on combating terrorism. 16 United Nations Security Council Resolution 2178 (S/RES/2178) (September 2014), §6.

6

1. Legal Problem and Research Question Of the many states that were forced to introduce new legislation and policies, the United Kingdom is noteworthy. It has introduced very extensive legislation allowing the Secretary of State to deprive anyone suspected of being involved in terrorism of their UK citizenship. There are more states, such as Denmark,17 France, Germany and the Netherlands18 that also use nationality deprivation as part of their counterterrorism policy. However, the UK poses the most interesting case in the sense that its new deprivation measures are most drastic and appear to be most likely to undermine their international legal obligations. Since the 9/11 attacks the power to citizenship deprivation has increasingly been broadened in the UK. While the legislation has been amended so as to be compatible with UK’s international obligations regarding the prevention of statelessness19 there are still other human rights related concerns. As executive discretion expanded, the legal procedural protection of citizenship weakened.20 The dilution of procedural protection contributes to serious erosion of human rights. Concerns are raised whether the human right to fair trial, as contained in Article 6 of the European Convention on Human Rights (ECHR), is still sufficiently protected in the light of the expanded legislative powers. Moreover, the deprivation of citizenship measures could also potentially constitute an infringement of an individual’s rights under Article 8 ECHR. Seeing that nationality is a key aspect of one’s personality, deprivation thereof can constitute an interference with one’s private life. The question this thesis sets out to answer is the following: to what extent is UK’s current legislation on citizenship deprivation compatible with Article 6 and Article 8 of the ECHR? To find an answer to this question the aforementioned legislation will be assessed in the light of the relevant criteria developed in ECHR jurisprudence. Chapter II will detail the relevant legal framework and also set out the definitions of key concepts relevant for this thesis. In order to adequately understand the examined legislation it is imperative to understand its origins and history, therefore Chapter III will provide a brief historical account

17 Said Mansour is the first person in Denmark to be deprived of its nationality because of engagement in illegal activities associated with terrorism. Said Mansour is now trying his case at the Strasbourg Court. http://www.nrc.nl/next/2016/06/10/paspoort-kwijt-na-steun-aan-terreur-op-facebook-1626249 18 European Parliament, Briefing ‘Foreign Fighters, Member States’ responses and EU action in an international context’ (February 2015), p. 7-8 19 See pages 16-20 below 20 H. J. Hooper, (16 January 2015) The Counter Terrorism and Security Bill: A Potential Further Erosion of Citizenship Rights in the United Kingdom, available at: http://www.constitutionnet.org/news/counter- terrorism-and-security-bill-potential-further-erosion-citizenship-rights-united-kingdom

7 of citizenship deprivation legislation in the UK. Chapter III will furthermore give a disquisition of UK’s current legislation on citizenship deprivation. Chapter IV will consequently examine the compatibility of the legislation with Articles 6 and 8 of the Convention. It will try to provide an answer to the research question. Chapter V consists of a brief conclusion.

II. Legal framework The legal framework of this thesis consists of Article 6 and Article 8 of the ECHR and the corresponding jurisprudence. The two relevant articles will be expounded in the sections below and analysed before the articles are analysed in terms of their compatibility with the current state

1. Article 6 1.1 Applicability Article 6 protects the right to a fair trial. Article 6(1) provides that it only applies ‘in the determination of […] civil rights and obligations or of any criminal charge’,21 Thus, before engaging in an assessment of compliance, it must be established first that Article 6 is in fact applicable to the legislation concerned. The terms ‘civil rights and obligations’ and ‘criminal charge’ have an autonomous meaning within the ECHR, independent of the national law.22 These concepts cannot be interpreted merely based on the domestic law of the respondent State.23 Otherwise, without an autonomous meaning of what constitutes a ‘criminal charge’ States could avoid or circumvent Convention controls by categorizing procedures or offences as administrative or civil.24 To see if Article 6 is applicable a definition of ‘civil rights and obligations’ and ‘criminal charge’ will be provided in the following paragraphs. Firstly, it is important to note that when dealing with ‘civil rights’ in the ECHR context, it has to concern a ‘right’ or an ‘obligation’. For example, in the Boulois v. Luxembourg case, prison leave was considered a privilege, rather than an obligation or a right, and thus could not attract the protection of

21 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Article 6(1) 22 Hornsby v. Greece, App No 18357/91 (ECHR, 19 March 1997) [§40], and Burdov v. Russia, App No 59498/00 (ECHR, 7 May 2002) [§34] 23 Maaouia v. France App No 39652/98 (ECHR, 5 October 2000) [§34] 24 B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention of Human Rights (sixth edition, Oxford University Press, 2014) p 248. See for example, Öztürk v. Germany §49

8 Article 6.25 Secondly, the right or obligation must exist under national law. Article 6 will not apply where national courts have determined that no right or obligation exist in domestic law.26 And thirdly, the right or obligation, which exists in national law, must be civil in nature. This is less difficult to establish when it concerns proceedings between private individuals. However, the difficulties in determining if Article 6(1) applies arise when it concerns disputes between individuals and the State. Despite the fact that the Court prefers to decide on the matter on a case-by-case basis, a number of relevant points can be deduced from the Court’s case law that are helpful in deciding on the nature of the right at issue. Firstly, the Court recognized in König v. the Federal Republic of Germany that ‘only the character of the right at issue is relevant’ and not the character of the legislation.27 In Ringeisen v. Austria the Court stated that for Article 6(1) of the Convention to be applicable it is not necessary that both parties to the proceedings are private persons: Article 6(1) is applicable as long as the result of the proceedings is ‘decisive for private rights and obligations’.28 The character of the legislation at issue (as confirmed in by the Court in König case) or the type of court (administrative body, ordinary court, etc.) deciding on the matter is therefore of little consequence. 29 Another relevant point to take into consideration is if there exists an uniform European notion as to the nature of the right.30 Lastly, even though the concept is autonomous, the Court held that the substantive content and the effects of the right concerned under the domestic law are also important as a starting point.31 In the Engel case the Court established criteria relevant to consider when assessing if a matter is a ‘criminal charge’ in the sense of Article 6 ECHR.32 The three criteria are: 1) classification of the proceedings under national law; 2) the essential nature of the offence; and 3) the nature and degree of severity of the penalty that could be imposed.33 With regard to the first criterion, if a proceeding is not classified as criminal under national law that does not necessarily mean that Article 6 guarantees do not apply. If that would be the case, a State could circumvent the Article 6 application easily by re-classifying criminal offences. But if a

25 Boulois v. Luxembourg App No 37575/04 (ECHR, 3 April 2012) [GC] [§ 65-67] 26 Roche v. the United Kingdom App No 32555/96 (ECHR, 19 October 2005) [GC] [§95], although by a nine to eight votes split. 27 König v. the Federal Republic of Germany App No 6232/73 (ECHR, 28 June 1978) [§90] 28 Ringeisen v. Austria App No 2614/65 (ECHR, 16 July 1971) [§94]. 29 Ringeisen v. Austria [§ 94] 30 Feldbrugge v. the Netherlands App No 8562/79 (ECHR, 29 May 1986) [§29] 31 König v. the Federal Republic of Germany App No 6232/73 (ECHR, 28 June 1978) [§29] 32 Engel and Others v. the Netherlands App No 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (ECHR, 8 June 1976) 33 Ibid. [§82]

9 charge is classified under the domestic law as criminal, Article 6 applies automatically.34 In reference to the second criterion, the nature of the offence, the Court also considered that if the legislation only applied to small and narrowly defined groups of potential offenders it is probably a disciplinary or an administrative procedure rather than a mainstream criminal offence.35 In Öztürk v. Germany the Court determined that a penalty of administrative nature (in the Öztürk case a fine for careless driving) can be perceived as a criminal charge in the sense of Article 6 ECHR if the penalty or rule is ‘punitive and deterrent’ in character.36 If the second criterion does not trigger the applicability of Article 6, the Court will then have a look at the third criterion. The third criterion focuses in particular to any loss of liberty. Brief periods of imprisonment are not sufficient to make Article 6 applicable.37 Moreover, the Court stated in the Matyjek case that the Engel criteria are not necessarily cumulative.38 Only if a separate analysis of each criterion does not make a clear conclusion the criteria must be approached in a cumulative manner. In general, nationality decisions fall outside of the scope of Article 6, as was decided in Zeibek v. Greece.39 In this case the applicants complained that they were deprived of their Greek citizenship without a hearing in breach of Article 6 of the Convention. The former European Commission of Human Rights decided that Article 6 did not apply here since ‘proceedings concerning a person’s nationality do not determine either civil rights and obligations or a criminal charge’.40 In the 2005 Naumov v. Albania case the Court affirmed this finding by stating that Article 6 does not apply to procedures concerning a person’s citizenship and/or the entry, stay and deportation as such.41 Based on these cases it seems that Article 6 does not apply to proceedings concerning citizenship. Hence, assessing the compatibility of UK’s legislation concerning citizenship revocation in light of Article 6 seems redundant. However, even though Article 6 is not applicable to cases concerning nationality decisions it could be argued that this is different for cases concerning deprivation measures. With regard to ‘civil rights and obligations’ the applicability of Article 6 (1) depends on the

34 Ibid. [§81] 35 B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention of Human Rights (sixth edition, Oxford University Press, 2014) p. 248 36 Öztürk v. Germany App No 8544/79 (ECHR, 21 February 1984) [§53] 37 Engel and Others v. the Netherlands [§82, 84] 38 Matyjek v. Poland App No 38184/03 (ECHR, 30 May 2006) 39 Zeibek v. Greece App No 34372/97 (EComHR, 21 May 1997) 40 Zeibek v. Greece App No 34372/97 (EComHR, 21 May 1997) [§2] 41 Naumov v. Albania App No 10513/03 (ECHR, 4 January 2005) [§2]: ‘such proceedings do not involve either the determination of his civil rights and obligations or of any criminal charge against him within the meaning of Article 6 of the Convention’

10 existence of a right to nationality under UK’s national law. This however, does not exist in black letter law.42 But if it could be established that such a right in fact exists, decisions on deprivation of citizenship are brought within the ambit of civil rights and therefore within the ambit of the ECHR. Based on the Court’s decision in Ringeisen v. Austria the right can be argued to be civil in nature, because when a person is deprived of his citizenship as a result of an administrative rule, this can have a decisive impact on the private rights and obligations of that person and thus brings the case within the realm of Article 6(1).43 However, the lack of sufficient legal basis makes it is more likely that Article 6 applies because the legislation at issue concerns a criminal charge. With regard to the concept of criminal charge, to see if Article 6 applies the Engel criteria are relevant. Firstly, the legislation at issue is not classified as criminal under UK law, but it is classified as an administrative measure. However, as stated above this is not decisive for the determination. Secondly, with regard to the ‘essential nature of the offence’ criterion, the Öztürk case established that if a rule is punitive and deterrent in character it can be perceived as a criminal charge. In Maaoui v. France the applicant was subjected to a deportation order and he sought judicial review to quash the order.44 He then complained at the Strasbourg Court about the length of the proceedings for the annulment of the order made against him. The question before the Court was whether the proceedings came within the terms of Article 6. The Court determined that if the deportation order was used as a punishment, then it would be considered a criminal charge and fall within the scope of Article 6(1).45 Thus, it could be argued that if the deprivation measures are intended as a punishment rather than a preventive measure, Article 6 is applicable and the requirements of the Article must be satisfied. The punitive character of the deprivation measures can be seen as practically acknowledged by UK politicians when, during parliamentary debates, statements were made such as: ‘We think that deprivation is a way of demonstrating extreme displeasure at the way someone has behaved (…)’.46 Thirdly, the criterion concerning the nature and the severity of penalty, need not be assessed since it is clear that the second criterion already

42 Neither does the ECHR provide for a right to nationality. Attempts were made to adopt an optional protocol on the right to nationality, but the Council of Europe member states were very reluctant to accept international obligations in this area. In S. Mantu (2014) p.93 43 Ringeisen v. Austria App No 2614/65 (ECHR, 16 July 1971) [§94]. 44 Maaouia v. France App No 39652/98 (ECHR, 5 October 2000) [GC] 45 Ibid [§29] 46 Parliament United Kingdom Website, Committee Debates ‘National, Immigration and Asylum Bill’, (22 May 2002) available at: http://www.publications.parliament.uk/pa/cm200102/cmstand/e/st020430/pm/20430s14.htm [accessed latest at: 14 June 2016]

11 triggered the applicability of Article 6. Furthermore, the legislation providing for the deprivation measures do not provide any provisions on imprisonment or deprivation of liberty as such. The Court held in Benham v. the United Kingdom that ‘where deprivation of liberty is at stake, the interests of justice in principle call for legal representation.47 Thus, if the deprivation measures are intended as a punishment rather than a preventive measure Article 6 is applicable and the requirements of the Article must be satisfied. Thus in general the Court has established that nationality decisions fall outside of the scope of Article 6. While the arguments for the legislation to entail ‘civil rights and obligations’ are very meagre, it can be argued that UK’s legislation on deprivation measures fall under the concept of a ‘criminal charge’. Article 6 can therefore still be considered to be applicable to the legislation on deprivation measures.48

1.2 Compliance Considering that Article 6 applies to the legislation on deprivation measures, an assessment of the compatibility of the legislation with Article 6 should be made. Article 6(1) comprises of multiple criteria that should be satisfied. The foremost criterion of ‘fair trial’ entails a couple of specific ingredients that emerged from case law, namely: procedural equality (or a reasonable equality of arms), an adversarial trial, disclosure of evidence, a reasoned decision, appearance in person and effective participation.49 Other requirements enumerated in Article 6(1) are: an independent and impartial tribunal established by law, judgment in a reasonable time and public hearings and public judgments. Paragraphs 2 and 3 of the same Article provide everyone charged with a criminal offence certain additional rights.50 Paragraph 2 provides for the right of presumption of innocence. Paragraph 3 provides for the following minimum rights: a) to be informed promptly of the charges and interpretation, b) to have adequate time and facilities to prepare a defence, c) to defend oneself in person, or to defend oneself through legal assistance of a person’s own choosing and that the legal assistance is given for free if justice so requires, d) to attendance of

47 Benham v. the United Kingdom App No (ECHR, 28 June 1984) [§61] 48 Moreover, Rule 47 of the EU Charter of Fundamental Rights, which provide for the right to an effective remedy and to a fair trial, is also interesting in this regard. Rule 47 does not confine the right to a fair hearing to disputes relating to civil law rights and obligations or criminal charges. Meaning that the guarantees afforded in Union law are much wider in scope than afforded by the ECHR. This can support the argument that the right to a fair trial should be guaranteed in the legislation providing for deprivation measures. 49 B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention of Human Rights (sixth edition, Oxford University Press, 2014) p. 263-268 50 Whereas the requirements of Article 6(1) also apply to civil proceedings.

12 witnesses and the possibility to examine their evidence and e) to have free assistance of an interpreter is so required.51

2. Article 8 The first paragraph of Article 8 sets out the rights that are to be guaranteed by the State to an individual: the right to respect for private and family life, home and correspondence. The second paragraph of the article sets out the conditions under which an interference with the Article 8 rights may be allowed. Only the interferences permitted under paragraph (2), which are in accordance with law, necessary in a democratic society and protect and pursue a legitimate aim, are allowed. Interferences that are not allowed under the express limitations of the second paragraph constitute a violation of the rights guaranteed in Article 8. To see if Article 8 is applicable first, it must be established if the legislation raises an issue under Article 8. Applicability of Article 8 to the legislation at issue will be easier to establish than the applicability of Article 6 due to the fact that the Court in Dadouch v. Malta52 and in Genovese v. Malta53 straightforwardly held that nationality is an intrinsic part of someone’s social identity, which in turn is a part of a person’s private life, and as such protected under Article 8. Furthermore, deprivation of citizenship automatically entails that other human rights are also implicated, such as the right of abode in the UK. This also implicates the right to family life, since the deprived person would be separated from his family members who remain in the UK. This allows subsequently for the issue of compliance to be assessed in Chapter IV.

3. Methodological Limitations As mentioned above the legal framework of this thesis consists of the ECHR and its relevant jurisprudence, against which the UK’s legislation will be held. The Strasbourg Court provides progressive jurisprudence on terrorism and has a wider jurisdiction than the EU Charter, since terrorism is a global problem the Strasbourg Court seems to be the preferred court in this regard. Moreover, this thesis will not engage in a thorough assessment of the European Convention on Nationality (ECN) adopted in 1997. UK is not a party to the ECN and is consequently not bound by the limits provided for in this convention in respect of citizenship deprivation.. Nor will this thesis pay attention to EU citizenship or CJEU cases,

51Article 6(3), ECHR 52 Dadouch v. Malta App No 38816/07 (ECHR, 20 July 2010) [§36, §47] 53 Genovese v. Malta App No 53124/09 (ECHR, 11 October 2011) [§33]

13 since nationality matters are within the sphere of the member states and not within the competence of the European Union.

4. Definitions 4.1 Citizenship & Nationality Citizenship can be examined as a legal status or as a membership in a political community. This thesis focuses on citizenship as a legal status. Scholars have tried to define the concept of citizenship. The scholar Hannah Arendt54 has defined citizenship as ‘the right to have rights’.55 However, it seems that there exists tension between this definition and the logic of human rights protection, because, at least in theory, human rights are not dependent on nationality or citizenship, since everyone is entitled to their human rights just by virtue of being human.56 The British sociologist T.H. Marshall has defined citizenship as the successful accumulation of civil, political and social rights.57 This definition assumes that the main incentive behind the creation of citizenship is equality: all citizens are equal before the law. However, not all citizens are equal before the law in terms of economic and social rights. For instance, the United Kingdom recognizes six different types of citizenship, all with different degrees of rights and duties.58 It is possible to be a British national, but to not enjoy the political rights that come with being a ‘full’ British citizen. The exact relationship between nationality and citizenship is blurred. Often, the two terms have been described as being two sides of the same coin. Weis argues that nationality and citizenship both express membership of a political community in a state.59 Yet, citizenship and nationality cannot be seen as complete synonyms, as is demonstrated by the different forms of UK citizenship as outlined above. Some scholars argue that citizenship is reserved for the domestic context and that nationality is relevant from the point of view of international law.60 Nationality is important from the international perspective because, together with a territory and effective government, it determines the existence of a state and

54 Hannah Arendt was also a former refugee and stateless person 55 H. Arendt (1973) The Origins of Totalitarism, Mariner Books 56 S. Mantu. (2014) Contingent Citizenship, The Law and Practice of Citizenship Deprivation in International, European and National Perspectives, Brill Nijhoff, Leiden, p. 94 57 T.H. Marshall (1950) Citizenship and Social Class and Other Essays, Cambridge: Cambridge University Press. 58 Government United Kingdom Website, ‘Types of British nationality’ available at: https://www.gov.uk/types-of-british-nationality/overview 59 P. Weis, Nationality and Statelessness in International Law (London: Stevens & Sons Ltd., 1956) p. 4-5 60 S. Mantu (2014), p 6-7; A. Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights’ in A. Edwards & L. van Waas, Nationality and Statelessness under International Law (Cambridge: Cambridge University Press, 2014) p. 11, 13-14

14 can be considered as an expression of the principle of sovereignty. Whereas citizenship entails the specific set of rights and duties coinciding with a certain citizenship status and may therefore be more relevant on national level.

4.2 Loss & Deprivation Just as nationality and citizenship are not perfect synonyms, neither are loss of citizenship and deprivation of citizenship.61 Loss is the more general term, it refers to all ways in which a person can lose citizenship status.62 Deprivation of citizenship encompasses the more specific situation in which citizen status is deprived at the initiative of the state, this thesis will focus on this latter situation. It is important to note that sovereign states have the autonomy to determine who the members of their national community are at their own discretion. This competency entails that states have the power to set down rules dealing with the acquisition and loss of citizenship

III. UK’s Legislation on Citizenship Deprivation over the Years 1. History of UK’s Nationality Legislation In order to properly analyse UK’s current legislation on citizenship deprivation firstly UK’s preceding legislation will be described briefly. The power to ‘denaturalise’ persons has existed in the UK since the Naturalisation Act of 1870.63 However, the 1914 Nationality Act was the first attempt to introduce a standardized denaturalisation procedure. The Act empowered the Secretary of State to revoke a naturalisation certificate if it was obtained by fraud or false representation.64 After WOII, the British Nationality Act 1948 was introduced, section 20 of that act added the phrase ‘concealment of a material fact’ to the reasons to revoke registered or naturalised citizens of their citizenship.65 The British Nationality Act of 1964 aligned British law with the 1961 UN Convention on the Reduction of Statelessness:

61 S. Mantu (2014), p. 14. 62 Either by initiative of the individual or by initiative of the state, or because the state ceased to exist (many cases exist concerning the ceasing to exist of the Socialist Federal Republic of Yugoslavia in the early ‘90’s), or due to fraudulent acquisition. 63 Naturalization Act 1870, 12 May 1870, see also S. Mantu. (2014) Contingent Citizenship, The Law and Practice of Citizenship Deprivation in International, European and National Perspectives, Brill Nijhoff, Leiden, p. 175 64 Ibid, p. 175 65 Section 20, British Nationality Act 1948, Chapter 56, 11 and 12 Geo 6, 30th July 1948 available at: http://www.legislation.gov.uk/ukpga/1948/56/pdfs/ukpga_19480056_en.pdf

15 deprivation measures were now only applicable in situations were it would not lead to statelessness.66

2. Current Nationality Legislation in the UK 2.1 The 1981 British Nationality Act The next big reform on UK’s nationality law was introduced by The 1981 British Nationality Act (BNA).67 The reasons to be deprived of citizenship status remained the same as under previous legislation.68 Although the deprivation provisions of the BNA 1981 have been substantially amended in 2002, 2006 and 2014 it remains the statutory legal basis for acquisition and loss of UK citizenship.

2.2 The Nationality, Immigration and Asylum Act 2002 The Nationality, Immigration and Asylum Act 200269 brought important changes to the BNA 1981 by expanding the power to deprive an individual of its citizenship. Section 40(2) of the 2002 Act provides that:

‘(2) 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:

(a) the United Kingdom, or

(b) a British overseas territory.’

Section 40(1) of the 2002 Act expanded the applicability of citizenship deprivation to also include British citizens by birth, so not just registered or naturalised citizens. Section 40(4) restricted the power of deprivation to cases in which persons could not become stateless as a result. This means in practice that the scope ratio personae of the legislation cover British

66 Ibid, p. 176 67 The British Nationality Act 1981(1 Jan 1983) [United Kingdom of Great Britain and Northern Ireland] 1981 Chapter 61, available at: http://www.legislation.gov.uk/ukpga/1981/61/section/40/enacted 68 Section 40 of the BNA 1981 provided that registered or naturalised citizens could lose their status if: citizenship had been obtained by fraud, misrepresentation or concealment of a material fact, the person had been disloyal to the Queen, had assisted the enemy in time of war or the individual had been sentenced to at least twelve months imprisonment in any country in the pas five years, see S. Mantu (2014) p. 178. 69 The Nationality, Immigration and Asylum Act 2002 (7 Nov 2002) [United Kingdom of Great Britain and Northern Ireland], 2002 Chapter 41.

16 dual nationals.70 The prohibition to create statelessness stems from UK’s obligation under Article 8(1) of the 1961 Convention on the Reduction of Statelessness, which provides that a state party shall not deprive a person of his or her nationality if such deprivation would render him stateless.71 The only exception to this is Section 40(3) of the 2002 Act, which provides that a naturalised or registered British citizen may be deprived of his status if the Secretary of State is satisfied that it was obtained by means of fraud, false representation or concealment of a material fact. Deprivation in this case is allowed even if the person would become stateless as a result.72 Furthermore, the 2002 Act introduced the right to appeal a citizenship deprivation order.73 The right of appeal was introduced as a result of UK’s intention to ratify the European Convention on Nationality, adopted under the umbrella of the Council of Europe.74 Under Section 40(5) another procedural right was introduced: the Secretary must, before making the deprivation order, give the person concerned written notice specifying that a decision was taken to make the order and explicate the reasons for the order. The notice must likewise provide advise to the persons concerned as to their right of appeal.75 Initially, appeals had a suspensive effect, meaning that a citizenship deprivation order could not be issued while an appeal was pending or while there was still a possibility to start an appeal within the statutory time limits.76 Since 2004, the appeals no longer have this suspensive effect.77 The rationale behind the 2004 changes was to allow for deprivation of citizenship and deportation procedures to take place concurrently.78

70 Section 40(4) of the Nationality, Immigration and Asylum Act 2002 available at: http://www.legislation.gov.uk/ukpga/2002/41/section/4/enacted 71 Article 8 (1) of the UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, Vol. 989, p. 175 available at: http://www.unhcr.org/protection/statelessness/3bbb286d8/convention-reduction-statelessness.html [accessed 5 July, 2016 latest] 72 Article 8(2) sub b of the 1961 UN Convention on the Reduction of Statelessness makes allowance for this, it provides that ‘where the nationality has been obtained by misrepresentation or fraud’, ‘a person may be deprived of the nationality of a Contracting State’. 73 Section 40(A) Nationality, Immigration and Asylum Act 2002 74 S. Mantu. (2014), p. 184 75 Section 40(5) Nationality, Immigration and Asylum Act 2002 76 Section 40A(6) Nationality, Immigration and Asylum Act 2002 77 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, 4 April 2005, Chapter 19, Schedule 2, Part 1. Available at: http://www.legislation.gov.uk/ukpga/2004/19/pdfs/ukpga_20040019_en.pdf [last accessed 5 July, 2016], it replaced S40A(6) of the BNA 1981. 78 The 2004 changes are motivated by the unwanted results of the Abu Hamza al-Masri case for the UK governments. In that case the SIAC could not make a deprivation order until Abu Hamza’s appeal was determined. This meant that the SIAC had to take into account an unpublished decree which proved that Hamza was stripped of his Egyptian nationality, which made clear that a deprivation order of his British citizenship would leave him stateless. The 2004 changes permitted the issue of statelessness to be determined at the date of the deprivation order, based on the relevant facts available. See Abu Hamza al-Masri v. SSHD (2010) UKSIAC/23/2003, §21 and S. Mantu (2014) p. 216-217.

17 2.3 The Immigration, Asylum and Nationality Act 2006 The Immigration, Asylum and Nationality Act 200679 was adopted against the backdrop of the 2005 London Underground bombings. The 2006 Act replaced criteria for deprivation as they were formulated in 2002 from ‘seriously prejudicial to the vital interest’ to the much wider criterion ‘if the Secretary of State is satisfied that such deprivation is conducive to the public good’.80 The new Act also conferred a new power to the Secretary of State. The Secretary of State could now withdraw the ‘right of abode’ in the UK from any person whose exclusion or removal from the country is considered to be conducive to the public good.81 The right of appeal regarding deprivation of citizenship orders was maintained. As determined under the 2002 Act, if the Secretary of State certifies that the decision was taken partly, or wholly, based on sensitive information which should not be made public, the deprivation order can be challenged before the Asylum and Immigration Tribunal or the Special Immigration Appeals Commission (SIAC).82 The SIAC is the designated appeal body when it concerns information that should not be made public in the interests of national security or of the relationship between the United Kingdom and another country or otherwise, in the public interest.83 Information regarding individuals allegedly related to terrorism is often of this nature.

2.4 The Immigration Act 2014 The Immigration Act 201484 altered the 2006 criterion by resorting to the 2002 formulation. The Secretary of State can now order a citizenship deprivation when he or she is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is ‘seriously prejudicial to the vital interests of the UK’.85 Just as under the 2006 Act however, there is no

79 Immigration, Asylum and Nationality Act 2006 (30 March 2006) [United Kingdom of Great Britain and Northern Ireland], 2006 Chapter 13. 80 Section 56, Immigration, Asylum and Nationality Act 2006, available at: http://www.legislation.gov.uk/ukpga/2006/13/section/56/enacted 81 Section 57, Immigration, Asylum and Nationality Act 2006, available at: http://www.legislation.gov.uk/ukpga/2006/13/section/57/enacted 82 Section 40A (2) Nationality, Immigration and Asylum Act 2002. The SIAC hears cases of deportation in which the decisions were bases on sensitive information that cannot be reviewed by the ordinary courts, nor fully disclosed to the parties. The SIAC was set up under the SIAC Act 1997 as a reaction to the criticism voiced by the ECtHR on the lack of appeal. 83 Section 40A (2) of the 2002 Act 84 The Immigration Act 2014 (14 May 2014) [United Kingdom of Great Britain and Northern Ireland] 2014 Chapter 22. 85 Section 66 of the Immigration Act 2014, available at: http://www.legislation.gov.uk/ukpga/2014/22/section/66/enacted

18 statutory definition of what exactly constitutes what ‘conducive to the public good’ entails. However, The House of Commons specified that ‘conducive to the public good’ means in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.86 It is also unclear what is precisely meant by ‘conduct that is seriously prejudicial to the vital interest of the UK’. The United Kingdom Home Office did however articulate a stance on this matter in the Immigration Bill Fact Sheet, which is worth citing at length:

It is not right that a person who has acquired British citizenship – and accepted the rights, responsibilities and privileges that derive from this – can act in a way that threatens the security of the UK and retain British nationality simply because they may be left stateless as a result of deprivation.87

And consequently held that:

The threshold of having conducted themselves in a manner ‘seriously prejudicial the vital interests of the UK’ is a high one and every case will be considered on an individual basis.88

The UK government furthermore stated that they did not want to be overly prescriptive on what the phrase means, but did note that it would likely encompass those persons who are ‘involved in terrorism or espionage or those who take up arms against British or allied forces’.89 Before the 2014 amendment, statelessness was only allowed in fraud cases. Since the 2014 Act however, a person who has acted ‘seriously prejudicial to the vital interest of the UK’ can also be deprived of his citizenship even if that would leave him stateless as a result, provided that he obtained his citizenship through naturalisation. The motivation behind the

86 House of Commons, Home Affairs Section (2015) Deprivation of British citizenship and withdrawal of passport facilities p. 1, available at: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06820 [accessed 1 June 2016] 87 Immigration Bill, Fact Sheet: Deprivation of Citizenship (Clause 60), p. 1 available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/277578/Factsheet_15 _Deprivation.pdf [accessed 1 June 2016] 88 Ibid,p. 4 89 Ibid p. 3

19 new powers to deprive of citizenship is twofold.90 It is a reaction to the decision taken by the Supreme Court in the Al-Jedda case, where the UK executive was prevented from making a citizenship deprivation order against Mr. Al-Jedda since that order would have left him stateless.91 Furthermore, the new powers need to be seen within the larger context of UK’s response to the phenomenon of British citizens travelling to the Middle East to join armed conflicts there.92 The 2014 amendment was initially met with some resistance by the House of Lords, particular in regard to the issue of statelessness, but the executive compromised with the opposition by including two safeguards. The first safeguard entails that the Secretary of State has to have reasonable grounds for believing that the person is able to become a national of another country or territory when making the citizenship deprivation order.93 Secondly, an independent reviewer will periodically review the exercise of the power to deprive.94 Although the Parliament eventually accepted these safeguards, under international law standards there exists no such legal status as a stateless person with excellent chances of acquiring a nationality. A person is either stateless or is not.95

IV. The Measure of Deprivation of Nationality in Light of Articles 6 and 8 ECHR 1. Legislation on Deprivation of Citizenship Measures For reasons of coherence and clarity, a reiteration of the law as it stands now according to amended section 40 of the British Nationality Act 1981 is that a deprivation order can be made if the Secretary of State is satisfied that:

1) it would be conducive to the public good to deprive the person of their British citizenship status and to do so would not render him stateless; or 2) the person obtained his citizenship status through naturalisation, and it would be conducive to the public good to deprive him of his status because he has engaged in conduct ‘seriously prejudicial’ to the UK’s vital interests, and the Secretary of State has reasonable grounds to believe that he could acquire another nationality; or

90 S. Mantu. (2014) Contingent Citizenship, The Law and Practice of Citizenship Deprivation in International, European and National Perspectives, Brill Nijhoff, Leiden, p , p 204. 91 Ibid, p 204 92 Ibid, p 204 93 Section 66(1) “(4A)(c)” of the Immigration Act 2014, 94 Ibid, p 200 95 Ibid, p 200

20 3) the person acquired his citizenship status through naturalisation or registration, and it was obtained by means of fraud, false representation or concealment of any material fact.

In the second and third scenarios, a person may be deprived of their British citizenship even if this would leave him stateless.96

2. Compatibility with Article 6 Section 40A of the BNA 1981 sets out the rights for appeal.97 A person may appeal the decision to make an order for deprivation to the First Tier Tribunal (Immigration and Asylum Chamber).98 Onwards appeals are made to the Upper Tribunal and Court of Appeal or Court of Session in Scotland.99 But if the Secretary of State certifies that a deprivation order was based, ‘in wholly or partially in reliance on information which in his opinion should not be made public (a) in the interests of national security, (b) in the interests of the relationship between the United Kingdom and another country, or (c) otherwise in the public interest’, the appeal100 will be heard by the Special Immigration Appeals Commission (SIAC).101 The SIAC was designed to make private hearings possible if it is felt necessary to do so for reasons of public interest.102 The SIAC introduced a system of Special Advocates. Special Advocates are security-vetted lawyers, separate from the appellant and its legal team, who have access to the sensitive evidence the government does not wish to be revealed to the appellant or the public.103 The SIAC is designed to remedy the vacuum that emerged in the old system because of the increased reliance on secretive evidence.104 However, notwithstanding the undoubtedly good intentions behind the introduction of the SIAC, the procedure before the SIAC seems to be at odds with certain requirements of Article 6 for a number of reasons. First, the requirement of a fair trial that the hearing and the judgment should be publicly pronounced appears to be neglected. Since SIAC actually ‘determines’ an

96 House of Commons, Home Affairs Section (2015) Deprivation of British citizenship and withdrawal of passport facilities p. 1 97 Section 40A BNA 1981 98 Section 40A(1) BNA 1981 99 House of Commons, (20154) p. 3-4 100 It is called appeal but is in fact the Court of First Instance. 101 Section 40A(2) BNA 1981 102 Louise Smith (June 2016) The Special Immigration Appeals Commission, available at: http://www.aboutimmigration.co.uk/special-immigration-appeals-commission.html [accessed at 14 July 2016] 103 Ibid. 104 BBC News, Q&A: Secret court explained, 28 April 2004, available at: http://news.bbc.co.uk/2/hi/uk/3666235.stm

21 issue on substance, and not only repeals an earlier decision on points of law, the requirement of a public hearing should be satisfied.105 Rule 43 of the Rules of the SIAC provides that the appellant and his representative can be excluded from the hearing or part of the hearing, if the Commission considers such an exclusion necessary, in order to secure that information is not disclosed contrary to the public interest or ‘for any other good reason’.106 However, this rule is in fact in accordance with Article 6(1), since Article 6(1) contains a list of limitations to the right of a public hearing on grounds of public policy, national security, privacy or strictly necessary in the interest of justice. Furthermore, the Court determined that in national security cases, such as those relating to terrorist activities, the (partial) absence of a public judgment might also be justified in some circumstances.107 Secondly, the SIAC procedure might also be at odds with the Article 6(1) requirement of disclosure of evidence. The Court determined in Rowe and Davis v. United Kingdom that for a trial to be adversarial, all material evidence should be made available by the prosecution authorities to the accused and its legal team.108 The rationale behind this is that the required ‘equality of arms’ between both parties will be reached faster when the prosecution and defence have equal access to information. In the citizenship deprivation cases before the SIAC the evidence of terrorism involvement is usually based on intelligence information. This information may include reports of spying operations, phone taps or the testimony of informers inside terrorism organisations.109 Because of the nature of this material, the SIAC proceedings partly take place behind closed doors and the material may not be disclosed to the appellant. To mitigate the unfairness of a “closed material” procedure towards the appellant, the government created Special Advocates. The Special Advocates represent the individual in the closed part of the hearing.110 A Special Advocate cannot communicate or discuss any part of the secret evidence with the individual he or she represents.111 This means that the affected person may never know based on what information he or she has lost British citizenship. Some of the Special Advocates have expressed their concerns about this closed

105 Pretto and others v. Italy App No 7984/77 (ECHR, 8 December 1983) [§27-28], Only when an appeal court is merely carrying out a supervisory role, the lack of public hearing does not pose a problem. 106 Rule 43, The Special Immigration Appeals Commission (Procedure) Rules 2003, No. 1034, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421503/Consolidated _text_of_SIAC_Rules_2003.pdf 107 Raza v. Bulgaria App No 31465/08, (ECHR, 11 February 2010) [§53] 108 Rowe and Davis v. United Kingdom App No 28901/95 (ECHR, 16 February 2000) [GC] [§60] 109 BBC News, (28 April 2004) Q&A: Secret court explained, available at: http://news.bbc.co.uk/2/hi/uk/3666235.stm 110 Rule 35, The Special Immigration Appeals Commission (Procedure) Rules 2003, No. 1034 111Ibid, Rule 36.

22 part of the hearing to Amnesty International.112 A former Special Advocate admitted to Amnesty International that the fact that the Special Advocates can see the secret evidence, but cannot talk to the individual they represent about that evidence, makes it very difficult to check or challenge the evidence that the government is relying on.113 A former Special Advocate explained this issue with the following example:

“Suppose an allegation is made that a particular individual attended a training camp in Afghanistan – this is a SIAC-type example – on a particular date, was seen there, and there is identification evidence that describes the individual as having a beard. If you are the special advocate, you cannot take instructions to find out whether the claimant had a beard at that date or whether he might have in his possession any photograph of himself taken at that date showing he did not have a beard. He might be able to rebut that identification evidence by something as simple as that, but you as a special advocate cannot even investigate that question…[…] you have no access to the client […]”.114

Since the disclosure of evidence is a qualified right, non-disclosure does not necessarily constitute a violation of Article 6(1). Non-disclosure of evidence can be justified on grounds of national security, other reasons of public interest or to keep police methods of investigation secret.115 The government has argued that closed material procedures in the cases before the SIAC are indeed necessary in the interest of national security.116 However, the Court emphasized in the Rowe and Davis case that such measures (that withhold evidence from the defence) must be strictly necessary to be permissible under Article 6(1).117 Would a case come before the Strasbourg Court it is not for the European Court of Human Rights to decide whether the non-disclosure was strictly necessary in order to protect the national interest, since as a general rule, it is for the national courts to make that decision.118 The Strasbourg Court only examines the decision-making procedure to ensure it complies with the

112 Amnesty International, (2012) Left in the Dark: the Use of Secret Evidence in the United Kingdom, Amnesty International Publications. Available at: file:///Users/gebruiker/Downloads/eur450142012en.pdf 113 Ibid, p. 11 114 Uncorrected transcript of oral evidence taken before the Joint Committee on Human Rights, 24 January 2012, for its report “The Justice and Security Green Paper”, HL 286 HC 1777 published on 04 April 2012. Found in ibid. p. 11. 115 B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention of Human Rights (sixth edition, Oxford University Press, 2014) p. 264 116 See Rule 4 and explanatory notes of Rules of the SIAC 117 Rowe and Davis v. United Kingdom App No 28901/95 (ECHR, 16 February 2000) [GC] [§61] 118 Ibid, [§62] See also Uzukauskas v. Lithuania App No 16965/04 (ECHR, 6 October 2010) [§46-47]

23 requirements of equality of arms and incorporated adequate safeguards to protect the interest of the accused.119 The fact that there is no balancing of competing public interest concerns in SIAC cases120 may not work in UK government’s advantage would the Strasbourg Court come to review the decision-making procedure of the SIAC. Evidence can be withheld from the defendant even though its disclosure would cause minimum harm to a public interest and the material is very important to the defendant’s case.121 In 2013 the Bureau of Investigative Journalism reported that the majority of the deprivation orders had been issued whilst the individual was overseas.122 The cases before the SIAC where a deprivation order was made while the citizen was abroad was usually followed by an exclusion order from the UK, to prevent the former citizen from entering the UK again. As a result, the deprived person is forced to appeal the order from outside the UK.123 The procedural aspect of an out of country appeal is in interference with the fair trial requirement of ‘appearance in person’, which as a general rule holds that accused persons should always be present at their trial.124 In the G1 v. SSHD case, G1 appealed on two grounds. The first ground was that the deprivation and the concurrent exclusion order led to an out of country appeal, which was in violation of principles of fairness and due process.125 The England and Wales Court of Appeal determined that only if the legislation provided for an in-country appeal that it can be safeguarded, something the UK legislation does not provide for.126 G1 furthermore argued that the disadvantage of an appeal before SIAC, in comparison with a regular appeal, should be compensated by allowing the defendant to be present in person. The EWCA countered this by stating that Skype and modern technologies allowed the appellant to instruct his lawyers from Sudan.127 Unlikely that the Strasbourg Court will counter this line of

119 Ibid, [§62] 120 Amnesty International, (2012) Left in the Dark: the Use of Secret Evidence in the United Kingdom, Amnesty International Publications, p. 15 121 ibid, p. 15 122 The Bureau of Investigative Journalism, (23 Dec 2013) ‘Rise in citizenship-stripping as government cracks down on UK fighters in Syria, available at: https://www.thebureauinvestigates.com/2013/12/23/rise-in-citizenship-stripping-as-government- cracks-down-on-uk-fighters-in-syria/ 123 E.g. G1 v. Secretary of State for the Home Department (SSHD) (2012) EWCA Civ 867, L1 v. SSHD (2013) EWCA Civ 906. 124 The object and purpose of the Article 6(1) and 6(3)(c ), (d) and (e) presuppose the presence of the accused, see e.g. Ekbatani v. Sweden App No 10563/83 (ECHR, 26 May 1988) [§25], Kremzow v. Austria App No 12350/86 (ECHR, 21 September 1993) 125 G1 v. SSHD (2012) EWCA Civ 867 126 Ibid, [§22] 127 Ibid, [§25]

24 reasoning, in absentia proceedings are not uncommon. However, there are academics that argue that trial in absentia violate human rights.128 Since it is established that the deprivation measure constitutes a criminal charge in the sense of Article 6, paragraphs 2 and 3 of the same article will also be assessed. The legislation can also clash with the presumption of innocence as provided for in Article 6(2), considering that the individual can be deprived of his nationality based on Secretary of State’s belief that the individual’s presence in the UK ‘is not conducive to the public good’. Therefore, since these deprivation orders can also be made without any judicial approval in advance, 129 in practice this means that before a deprived individual has had the opportunity to defend himself before a tribunal, he is already perceived to be guilty of participation in terrorist activities, which can lead to the deprivation of his British citizenship. However, in Salabiaku v. France the Court determined that legislation which shifts the burden of proof onto the accused is allowed under Article 6(2) as long as it is confined to the ‘reasonable limits which take into account the importance of what is at stake and maintain the rights of defence’.130 It is unlikely that the Court would find it unreasonable to shift the burden of proof onto the accused considering the importance of the protection of national security. However, it is questionable if the rights of the defence are properly maintained in the proceedings before the SIAC. When taking the proceedings before the SIAC into considerations it can be concluded that the legislation unjustifiable shifts the burden of proof onto the accused, in violation of Article 6(2) ECHR. Elements of Article 6 (3) can also be said to conflict with the legislation. Sub (a) of paragraph 3 provides that the accused should be informed properly of the accusation and cause against him. Section 40(5) of the BNA 1981 states that the individual must receive written notice specifying the reasons for the order and the person’s right of appeal.131 When the person is abroad, which often is the case when an order for deprivation of citizenship is made,132 and the whereabouts of the person are unknown, the written notice will be send to

128 Chris Jenks, (31 July 2009) Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights, Fordham International Law Journal, Vol. 33, No.1 129 House of Commons, Home Affairs Committee, Counter-terrorism, Seventeenth Report of Session 2013- 2014 (30 April 2014), p. 36 available at: http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/231/231.pdf 130 Salabiaku v. France, App No 10519/83 (ECHR, 7 October 1988) [§28] 131 Section 40(5) BNA 1981 132 See G1 and L1 cases, see also page 24 and footnote 122 above.

25 his last known address.133 The reasons for the order may not be disclosed to the accused when the order is based on closed material, thus this obstruction of access to the material evidence against the accused can pose an impediment of notifying the accused of the charges that are laid against him. After the accused has received written notice with the decision to deprive, the accused has 28 days134 to find a lawyer, instruct him and appeal the deprivation decision.135 This timespan will in most cases probably be wide enough to avoid a violation of Article 6 (3) (b).136 Article 6 (3) (d) provides that the attendance and the examination of the witnesses of the defence must happen on the same basis as the witnesses against the accused. However, lawyers who spoke with Amnesty International expressed that when a closed material procedure applies, the procedures regarding witnesses are very unequal between the parties.137 The lawyers are unable to directly cross-examine government witnesses who give evidence in closed sessions. Even when the government witnesses give evidence in open sessions, the witnesses could avoid questions by responding that the matter could only be dealt with in the closed hearing.138 Furthermore, the lawyers stated that instructing their own expert witnesses is challenging because they don’t have access to the secret evidence.139 After scrutinizing the compatibility of the SIAC proceedings with the requirements of Article 6 it can be argued that some elements of the procedure are in violation of Article 6. Firstly, the fact that the SIAC does not balance competing interests in cases concerning closed material means that the SIAC could not possibly establish with certainty whether the measure to withhold evidence from the defence is strictly necessary in the interest of national security, a qualification of the non-disclosure of evidence that must be complied with in order to be permissible under Article 6(1). Moreover, it can be concluded that the legislation unjustifiable

133 Regulation 10(1)(b) of The British Nationality (General) Regulations 2003, [United Kingdom of Great Britain and Northern Ireland], 2003 No 548, available at: http://www.legislation.gov.uk/uksi/2003/548/regulation/10/made 134 This only applies when the accused is abroad, otherwise it is stipulated that the accused has 10 days, Rule 8(1)(b)(i) of the SIAC Procedure Rules 2003 SI 2003 No. 1034 135 Rule 8 (1)(b)(ii) of the SIAC Procedure Rules 2003. This rule shows that the government listened to the concerns voiced by the Joint Committee on Human Rights on the fact that the time for lodging an appeal initially started to run from the date of the decision and not the moment the individual has actually received the notification (important considering most deprivation orders are made when the individual is abroad) or when the Secretary of State had taken all steps to bring the decision to the individual’s attention. See House of Lords, House of Commons, Joint Committee on Human Rights (3 March 2014) Legislative Scrutiny: Immigration Bill (second Report) Twelfth Report of Session 2013-14, [§81] available at: http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/142/142.pdf 136 The Strasbourg Court concluded in the Hadjianastassiou case that a five-day time limit to apply for appeal (in this case at the Court of Cassation) constituted a violation of Article 6(3)(b) in conjunction with Article 6(1); Hadjianastassiou v. Greece App No 12945/87 (ECHR, 16 December 1992) 137 Amnesty International (2012) Left in the Dark: the Use of Secret Evidence in the United Kingdom, Amnesty International Publications 138 Ibid, p. 5, 11 139 Ibid, p. 5, 11

26 shifts the burden of proof onto the accused, in violation of Article 6(2). Furthermore, the inequality between the parties in the examination of the witnesses is in violation of Article 6(3) sub d. Finally, to a lesser extent, it can be argued that the obstruction of access to the material evidence against the accused can pose an obstacle of notifying the accused of the charges laid against him, in violation of Article 6(3) sub a.

3. Compatibility with Article 8

It is established140 that a citizenship deprivation measure affects a person’s private and family life. This chapter scrutinizes if such a measure, as outlined in the UK legislation, is compatible with the requirements under Article 8 ECHR. In other words, if the interference is allowed under the limitations provided for in paragraph 2 of Article 8. Since the law pursues a legitimate aim – the prevention of domestic terrorism, the question remains if the interference is in accordance with the other two limitations provided for in the second paragraph. First, it must be established that the interference is in accordance with the law. From Strasbourg Court’s case law a tripartite test can be derived to determine whether the interference is in accordance with law.141 First, the interference must have a basis in national law.142 Section 40 of the BNA 1981 provides the statutory basis of the deprivation measure. Secondly, the law must be accessible, citizens must be able to have an adequate indication in which circumstances the legal rules are applicable.143 Thirdly, the law must be foreseeable, citizens must be able to foresee what the consequences of a given action may entail.144 The law thus must be formulated in such a way that enables citizens to regulate their conduct. The Shimovolos v. Russia concerned secret measures of surveillance and the Court acknowledged that the ‘quality of law’ requirements cannot mean that a person should be able foresee when the authorities will resort to secret surveillance.145 However, ‘the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any measures […]’.146 The fact that no statutory definition of the ‘conducive to the public’ concept exists, nor of ‘conduct that is

140 See page 13 141 B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention of Human Rights (sixth edition, Oxford University Press, 2014) p. 310 142 Ibid, p. 310 143 Sunday Times v. United Kingdom App No 6538/74 (ECHR, 26 April 1979) [§49] 144 Ibid, [§49] 145 Shimovolos v. Russia App No 30194/09 (ECHR, 21 June 2011) 146 Ibid, [§68]

27 seriously prejudicial to the vital interest of the UK’147 could very well mean that the law is too vague to meet the requirements of predictability of application. Furthermore, the Court determined in Sanoma Uitgevers B.V. v. the Netherlands that the requirements of accessibility and foreseeability may need procedural safeguards.148 The most important procedural safeguard would be the guarantee of review by a judge or other independent and impartial decision-making body.149 The body carrying out the review should determine whether the public interest outweighs the measure constituting the interference (in the Sanoma case it concerned the disclosure of journalist sources).150 The body taking the decision should be ‘governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interest established.151 The question if there exists a less intrusive measure than the deprivation measure at issue to serve the national security interest will be considered under the third element/limitation provided for in paragraph 2 of Article 8.152 The third limitation concerns the question if the interference is necessary in a democratic society. To establish this, it must be shown that the interference with a person’s rights under Article 8 is in proportion to the importance of the public interest.153 In other words, the proportionality issue comes down to the question if there is another less far- reaching measure available to achieve the same aim. In the Court’s case law the notion of a State’s margin of appreciation plays an important role. The margin of appreciation concentrates on the legitimacy of the aim of the interference in meeting the pressing social need, while the notion of proportionality concerns the means used to achieve that aim. But in many cases both doctrines have been used conjointly.154 Usually in cases were the public interest concerns national security the Court allows a wide margin of appreciation to the Contracting Party.155 The margin of appreciation is also relevant in respect of the role of the Court in reviewing the decision making process. The Court is more likely to determine a measure falling within the margin of appreciation when the decision-making process has been

147 See page 19 148 Sanoma Uitgevers B.V. v. the Netherlands App No 38224/03 (ECHR, 14 September 2010) [GC] [§88] 149 Ibid, [§90] 150 Ibid, [§90] 151 Ibid, [§92] 152 B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention of Human Rights (sixth edition, Oxford University Press, 2014) p. 314 153 Ibid, p. 325 154 Ibid, p. 333 155 The Klass case is an example thereof: Germany was allowed a wide discretion as regards the formulation of their domestic legislation on systems of secret surveillance over communications in order to combat terrorism. However, it is equally important to note that the Court did not afford Germany an unlimited margin, since such a surveillance mechanism can encroach upon the rights of the individual, see Klass v Germany App No 5029/71 (ECtHR 6 September 1978) [§48-50]

28 prudent. In that sense, it is imaginable that the Court will allow a narrow margin of appreciation to the UK when assessing the deprivation legislation, due to the quick legislative process prior to the 2014 amendment.156 To see if an impugned measure is ‘necessary in a democratic society’ the Court must determine if a fair balance has been struck between, on the one hand, the individual’s rights protected under Article 8 and on the other hand, the community’s interest, such as the protection of national security.157 When making the assessment the particular circumstances of the case must be taken into account. Hence, if a measure is necessary in a democratic society, depends on the case-by-case analysis of the Court. In the case of Kurić and others v. Slovenia, the Court found that the measures which deprived the applicants of their status of permanent resident in Slovenia, were not necessary in a democratic society to achieve the legitimate aim of protection of national security.158 In coming to that conclusion the Court took into consideration the implications of the measure for a wide range of rights of the applicants, such as loss of health insurance, job opportunities, and difficulties in regulating pension rights. In addition the Court noted that the applicants had been lawfully residing in Slovenia for several years.159 In the deprivation cases before the SIAC, the commission mainly focused on the question whether the Secretary of State’s order had the effect of making the appellant stateless, and whether the deprivation order was therefore prohibited by Section 40 of the BNA 1981 Act.160 In two deprivation cases before the SIAC, the individual circumstances of the appellant were also acknowledged and taken into account. However, in those cases the SIAC never engaged in a substantive weighing of interest. Firstly, the S1, T1, U1 & V1 v. SSHD case concerned S1 and three of his British born children T1, U1 & V1, who were all deprived of their nationality.161 The family appealed and claimed, inter alia, that their youngest son (who was not deprived) suffers from developmental issues and had no hope of education in Pakistan. In the open judgment of the case, the SIAC acknowledged that the deprivation of S1 (the father) ‘undoubtedly had an impact on the private and family life of his wife and youngest son’, and that ‘those circumstances would have given rise to difficult

156 S. Mantu (2014) p. 200 157 See for example Slivenko v. Latvia App No 48321/99 (ECHR, 9 October 2003) [GC] [§113] 158 Kurić and others v. Slovenia App No 26828/06 (ECHR, 26 June 2012) [GC] [§ 159 Ibid, [§356] 160 See for example Y1 v. Secretary of State for the Home Department (2012) UKSIAC/112/2011. The Y1 case happened prior to the 2014 amendment, statelessness was then only allowed in fraud cases. 161 S1, T1, U1 & V1 v. SSHD (2012) UKSIAC/106/107/108/109/2012

29 questions under Article 8 ECHR […]’.162 However, the SIAC considered it unnecessary to analyse the reached conclusions on those issues, because the family’s lawyer recognized that if it was established that the deprivation was legitimate because S1 posed a threat to national security, the impact of the deprivation upon the rights of his wife and youngest son under Article 8 ECHR, would be justifiable.163 The SIAC concluded that the UK was entitled to deprive S1, and dismissed the appeals made by the family.164 Secondly, in the L1 v. SSHD case the SIAC took into consideration the special circumstances regarding the family of L1.165 L1’s four children – British citizens - were of an age where they could not enjoy their right of abode in the UK without their parents. The judge noted that the deprivation of L1 was therefore ‘unlikely to be in the best interests’ of the children, but the interests of the children, were outweighed by other interest.166 The judge furthermore noted that, if the appellant wished his children’s best interest to be considered substantively, there is another judicial route available.167 But in the L1 case the SIAC itself did not take the interests of the individual sufficiently into account. Both cases show that although the SIAC touches upon the individuals’ rights under Article 8, the SIAC never engaged in a substantive weighing of interest. Another question that consequently needs to be answered is whether there is a less far- reaching measure available to serve the prevention of domestic terrorism. To answer this, first this thesis will aim to prove that there is an alternative available. Secondly, the question whether the alternative is suitable to serve the prevention of domestic terrorism will be assessed. The amended section 40 of the British Nationality Act 1981 sets out which categories of persons can be subjected to deprivation measures.168 Certain individuals, who are involved in terrorism related activities, will still fall outside of the scope of section 40 because they are mono-national and/or will not be able to acquire another nationality. The question then is, what measures are imposed upon these persons falling outside the scope of section 40? In the case of Abu Hamza al-Masri v. SSHD the appellant challenged his deprivation order on grounds of statelessness.169 He won the appeal after the SIAC was satisfied that the Egyptian government ‘de facto’ denied his nationality when they issued a

162 Ibid, [§35] 163 Ibid, [§35] 164 Ibid, [§36] 165 L1 v. SSHD (2014) UKSIAC/100/2012 166 Ibid, [§18] 167 Ibid, [§18] 168 See p. 22 169 Abu Hamza al-Masri v. SSHD (2010) UKSIAC/23/2003

30 decree that refused Hamza his Egyptian passport. Hamza’s ‘de facto’ mono-nationality made him fall outside of the scope of the deprivation legislation, after which he was subjected to UK’s general criminal law system. In 2004 Abu Hamza was charged with 15 UK offences and eventually convicted on 11 counts and subsequently jailed for seven years in February 2006.170 This case shows that individuals who are ineligible for deprivation are subjected to UK’s general criminal law. In the House of Commons Debate in September 2014 Prime Minister Cameron was asked why those individuals are not just subjected to UK’s general laws and prosecuted and convicted accordingly. Cameron replied that the first approach should be to prosecute and convict people and that deprivation is seen as the last resort as ‘sometimes extraordinary measures have to be taken’.171 However, in the case of Abu Hamza the authorities preferred to subject Abu Hamza to deprivation measures, and only when that turned out to be impossible he was subjected to UK’s general law. Yet, this pattern cannot be claimed as a general practice followed by authorities. Considering that of the 33172 deprivation orders made on terror related grounds since 2010 only one other case, besides Abu Hamza’s case, is known to be successfully challenged before the SIAC.173 However, this decision was later overturned at the Court of Appeal.174 Nonetheless, these numbers do show that there is a very small chance that an individual will be subjected to general UK criminal law once he or she is subjected to deprivation measures. It furthermore shows the authorities’ inclination to avoid lengthy and complicated prosecutions by resorting to the (much quicker) deprivation orders process. Thus, an alternative to deprivation measures would thus be to subject individuals suspected to be engaged in terrorism to UK’s general criminal law, however the question remains if that is also the most suitable option. Does it make the UK safer than a deprivation measure would? The swiftness of a deprivation measure compared to lengthy criminal

170 In 2004 the US requested his extradition which the British Court gave permission to in 2007. Abu Hamza appealed the extradition decision at the Strasbourg Court. The Court blocked Hamza’s extradition until the Court was satisfied that he would not be subjected to inhuman treatment (e.g. death penalty). Eventually the Court was satisfied and Hamza was extradited to the US were he was sentenced to life in prison without the possibility of parole. See Babar Ahmad and Others v. the UK App No 36742/08 (ECHR 10 April 2012) 171 Speech of Prime Minister Cameron in where spelled out the intersection of terrorism with citizenship deprivation powers (House of Commons Debate, 1 Sep 2014, col 26, 33, 38.) available at: http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140901/debtext/140901- 0001.htm#1409016000154 172 The Bureau of Investigative Journalism (21 June 2016) ‘Citizenship stripping: new figures reveal Theresa May has deprived 33 individuals of British citizenship’. Available at: https://www.thebureauinvestigates.com/2016/06/21/citizenship-stripping-new-figures-reveal-theresa- may-deprived-33-individuals-british-citizenship/ 173 B2 v. The Secretary of State for the Home Department (2012) UKSIAC/114/2012 174 B2 v. The Secretary of State for the Home Department (2013) EWCA Civ 616

31 prosecutions is favourable when urgent action is required to prevent terrorist attacks. However, terrorism is a global problem and it is crucial to its eradication that it should be treated accordingly.175 Subjecting persons to deprivation measures (and subsequent exclusion orders) results in individuals going to another State. For example, the State of their residual nationality, where the law authorities and intelligence agencies might be less developed or when the individual became stateless as a result of the deprivation, issues of jurisdiction could make it easier for the individual to evade authorities all together. Circumstances of this kind are helpful to one who would want to engage in terrorism or the preparation thereof. The alternative, subjecting the accused to general criminal law, means that the UK, instead of shifting the burden onto other members of the international community, takes responsibility for its own citizens.

3.1 The Issue of Discrimination Since it is established that the legislation at issue falls within the ambit of Article 8, Article 14 ECHR also potentially applies.176 The distinction made in the legislation between dual- and mono-nationals and British citizens by birth or through naturalisation or registration appears to violate the prohibition of discrimination as provided for in Article 14 of the ECHR. In the A and Others v. UK case the Court found that the derogation measures under the Anti-terrorism, Crime and Security Act 2001 which provided for the possibility of detention of persons suspected of being an international terrorist discriminated unjustifiably between national and non-nationals.177 The Court argued that confining the measures to non-nationals was illegitimate since there was no proof that the terrorist threat from non-nationals was more serious than that from nationals.178 In other words, the applicants (non-nationals) were in a comparable situation to United Kingdom nationals suspected of being international terrorist and the distinction the legislation made between both groups was therefore unjustifiable.179 In order to answer whether there is question of discrimination in terms of Article 14, it must firstly be established that the compared groups are similar. The question if the compared groups are truly similar can sometimes only be answered by examining whether the difference

175 Parliament United Kingdom Website, Committee Publications, Human Rights Joint Committee (12 Jan 2015) ‘Legislative Scrutiny: Counter-Terrorism and Security Bill. §3.5, available at: http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/86/8605.htm#note45 176 Kafkaris v. Cyprus App No 21906/04 (ECHR, 23 February 2008) [§159] 177 A and others v. UK App No 3455/05 (ECHR, 19 February 2009) [GC] 178 Ibid, [§188-189] 179 Ibid, [§21]

32 in treatment can be objectively and reasonably justified.180 With regard to the difference between naturalised and born British citizens, the UK executive argues that the difference can be justified.181 Naturalised citizens have been granted their British citizenship because they didn’t act counter to British values and rules, the basis of their citizenship will be undermined by engaging in conduct ‘seriously prejudicial’ to the vital interest of the UK. However, it remains to be seen how this argument will work out before court.182 Moreover, this does not prove that naturalised citizens suspected of terrorism are a greater threat to the UK than individuals who were granted their citizenship by birth, and hence why only the former group should be subjected to the severe measure of citizenship deprivation. This same argument can be made to question the existence of an objective and reasonable justification for the difference between mono- and dual nationals. The differentiation seems to have been solely created to be compatible with rules of international law on statelessness.183 Based on the above it can be argued that there is a less-far reaching measure available to protect the national security and public safety of the UK, namely by subjecting those that are engaged in terrorist activities to UK’s general criminal law. Deprivation of citizenship is a disproportionate interference with a person’s right under Article 8. The legislation that provides for the deprivation measures cannot considered to be necessary in a democratic society and consequently constitutes a violation of Article 8. Moreover, the legislation is inherent discriminatory due to the distinction between dual- and mono-nationals and naturalised and born UK citizens

V. Conclusion The recent surge of global terrorism that faces the EU poses a threat to our societies, democracies and peoples. However, in our efforts to protect our way of living from terrorism, we must not neglect the fact that counter-terrorism could also pose a similarly significant and existential threat to our way of living. Fair trial and human rights are at the heart of Western societies governed by the rule of law, therefore understanding and researching the new challenges posed by terrorism as well as counter-terrorism is quintessential to finding an adequate response to the problem.

180 B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention of Human Rights (sixth edition, Oxford University Press, 2014) p 579 181 S. Mantu. (2014) Contingent Citizenship, The Law and Practice of Citizenship Deprivation in International, European and National Perspectives, Brill Nijhoff, Leiden, p. 203-204 182 Ibid, p. 203-204 183 See page 20 above

33 The secrecy surrounding the deprivation proceedings poses difficulties in making an adequate assessment of the proceedings in light of human rights. Nevertheless, the secretive element of these proceedings should not withhold one to engage in such assessment. The gravity of the measure of citizenship deprivation warrants such assessment.184 Based on the information that was available and on reports of authoritative human rights organisations, such as Amnesty International, I am of the opinion that the proceedings under the SIAC violate the human rights under the ECHR. And as such the legislation that provides for the deprivation of citizenship and the related procedures of appeal should be reformed.

184 The Counter-Terrorism and Security Bill 2015, which extends the powers to withdraw British passports and give authorities the power to make an order that temporarily excludes an individual form British soil, constitutes another part of UK’s counter-terrorism legislation that warrants an assessment on its compatibility with human rights. The human rights as provided for in Article 8 ECHR is specifically interesting in this regard. Unfortunately, due to limits in time and scope it was not possible to assess the extended powers in light of human rights in this thesis. See Counter-Terrorism and Security Bill 2015 (12 February 2015) Chapter 6, Part 1 Chapter 1, Chapter 2.

34 Bibliography

Books • Arendt, H. (1973) The Origins of Totalitarism, Mariner Books Edwards, A. (2014) ‘The Meaning of Nationality in International Law in an Era of Human Rights’ in A. Edwards & L. van Waas, Nationality and Statelessness under International Law. Cambridge: Cambridge University Press. • Rainey, B., Wicks. E. and Ovey, C. (2014) Jacobs, White and Ovey: The European Convention of Human Rights. Sixth edition. Oxford: Oxford University Press. • Mantu. S. (2014) Contingent Citizenship, The Law and Practice of Citizenship Deprivation in International, European and National Perspectives, Leiden: Brill Nijhoff • Weis, P. (1956) Nationality and Statelessness in International Law. London: Stevens & Sons Ltd.

(Online) Articles & Blogs: • Amnesty International, (2012) Left in the Dark: the Use of Secret Evidence in the United Kingdom, London: Amnesty International Publications, Available at: file:///Users/gebruiker/Downloads/eur450142012en.pdf • Bakker, E. and de Roy van Zuijdewijn, J. (Oct. 2015). Jihadist Foreign Fighter Phenomenon in Western Europe: A Low-Probability. High-Impact Threat. The Hague: International Centre for Counter Terrorism. • Bakowski, P. and Puccio, L. (Feb. 2015) Briefing ‘Foreign Fighters’, Member States’ responses and EU Action in an international context. European Parliamentary Research Service. Available at: http://www.europarl.europa.eu/EPRS/EPRS-Briefing- 548980-Foreign-fighters-FINAL.pdf • BBC News (28 April 2004) Q&A: Secret court explained, Available at: http://news.bbc.co.uk/2/hi/uk/3666235.stm • The Bureau of Investigative Journalism, (21 June 2016) Citizenship stripping: new figures reveal Theresa May has deprived 33 individuals of British citizenship. Available at: https://www.thebureauinvestigates.com/2016/06/21/citizenship-stripping- new-figures-reveal-theresa-may-deprived-33-individuals-british-citizenship/ • The Bureau of Investigative Journalism (23 Dec 2013) Rise in citizenship- stripping as government cracks down on UK fighters in Syria. Available at: https://www.thebureauinvestigates.com/2013/12/23/rise-in-citizenship- stripping-as-government-cracks-down-on-uk-fighters-in-syria/ • Hegghammer, T. (Winter 2010/2011). The Rise of Muslim Foreign Fighters: Islam and the Globalization of Jihad. International Security (Vol. 35, No. 3) pp. 53-94 • Hegghammer, T. (Feb. 2013) Should I Stay or Should I Go? Explaining Variation in Westerns Jihadist, Choice Between Domestic and Foreign Fighting. American Political Science Review (Vol. 107, No. 01) pp.1-15 • Hickman, T. (9 Oct 2014) ISIS, passports and Magna Carta: New national security powers raise complex issues. U.K. Const. L. Blog. Available at: https://ukconstitutionallaw.org/2014/10/09/tom-hickman-isis-passports-and-magna- carta-new-national-security-powers-raise-complex-issues/ [accessed latest 14 July 2] • Hooper, H., J., (16 Jan 2015) The Counter Terrorism and Security Bill: A potential Furhter Erosion of Citizenship Rights in the United Kingdom. U.K. Const. L. Blog.

35 Available at: http://www.constitutionnet.org/news/counter-terrorism-and-security-bill- potential-further-erosion-citizenship-rights-united-kingdom [accessed latest 15 July 2016] • Janik, R. (July 2014) Jihad and Citizenship: Assessing the Austrian amendment. U.K. Const. L. Blog. Available at: https://ukconstitutionallaw.org/2014/07/22/ralph-janik- jihad-and-citizenship-assessing-the-austrian-amendment/ • Jenks, C. (31 July 2009) Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights. Fordham International Law Journal, Vol. 33, No.1 • Kraehenmann, S. (Oct. 2014). Academy Briefing No.7: Foreign Fighters Under International Law. Geneva Academy of International Humanitarian Law and Human rights Briefings. • Malet, D. (2009) Why Foreign Fighters? Historical Perspective and Solution. Orbis (Vol. 52, No.1) pp. 97-114 • Marshall, T. H. (June 1951) Citizenship and Social Class, and Other Essays. The Economic Journal (Vol. 61, No. 242) pp. 420-422 • Sharifi, M., N. (10 Juli 2016) Paspoort kwijt na steun aan terreur of Facebook. NRC.nl available at: http://www.nrc.nl/nieuws/2016/06/10/paspoort-kwijt-na-steun-aan-terreur-op- facebook-1626488-a1507740 [accessed latest 14 July 2016] • Smith, L. (June 2016) The Special Immigration Appeals Commission, available at: http://www.aboutimmigration.co.uk/special-immigration-appeals-commission.html [accessed at 14 July 2016] • The Soufan Group. (7 Dec. 2015) Foreign Fighters, An Updated Assessment of the Flow of Foreign Fighters into Syria and Iraq. Available at: http://soufangroup.com/wp- content/uploads/2015/12/TSG_ForeignFightersUpdate3.pdf [accessed latest 14 July 2016] • Warbrick, C. (2002) The Principles of the European Convention on Human rights and the response of states to terrorism. European Human Rights Law Review (Vol. 3) pp. 287-314 • Vidino L. (2014) Foreign Fighters: An Overview of Responses in Eleven Countries. Zürich: Centre for Security Studies. Available at: http://www.css.ethz.ch/content/dam/ethz/special-interest/gess/cis/center-for-securities- studies/pdfs/Foreign_Fighters_2014.pdf [accessed latest 14 July 2016]

Case-law ECtHR: • A and others v. UK App No 3455/05 (ECHR, 19 February 2009) [GC] • Babar Ahmad and Others v. the UK App No 36742/08 (ECtHR 10 April 2012) • Benham v. the United Kingdom App No (ECHR, 28 June 1984) • Boulois v. Luxembourg App No 37575/04 (ECHR, 3 April 2012) [GC] • Burdov v. Russia, App No 59498/00 (ECHR, 7 May 2002) • Dadouch v. Malta App No 38816/07 (ECHR, 20 July 2010) • Ekbatani v. Sweden App No 10563/83 (ECHR, 26 May 1988) • Engel and Others v. the Netherlands App No 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (ECHR, 8 June 1976) • Feldbrugge v. the Netherlands App No 8562/79 (ECHR, 29 May 1986) • Genovese v. Malta App No 53124/09 (ECHR, 11 October 2011)

36 • Hadjianastassiou v. Greece App No 12945/87 (ECHR, 16 December 1992) • Hornsby v. Greece, App No 18357/91 (ECHR, 19 March 1997) • Kafkaris v. Cyprus App No 21906/04 (ECHR, 23 February 2008) • Klass v Germany App No 5029/71 (ECtHR 6 September 1978) • König v. the Federal Republic of Germany App No 6232/73 (ECHR, 28 June 1978) • Kremzow v. Austria App No 12350/86 (ECHR, 21 September 1993) • Kurić and others v. Slovenia App No 26828/06 (ECHR, 26 June 2012) [GC] • Maaouia v. France App No 39652/98 (ECHR, 5 October 2000) • Matyjek v. Poland App No 38184/03 (ECHR, 30 May 2006) • Naumov v. Albania App No 10513/03 (ECHR, 4 January 2005) • Öztürk v. Germany App No 8544/79 (ECHR, 21 February 1984) • Pretto and others v. Italy App No 7984/77 (ECHR, 8 December 1983) • Raza v. Bulgaria App No 31465/08, (ECHR, 11 February 2010) • Ringeisen v. Austria App No 2614/65 (ECHR, 16 July 1971) • Roche v. the United Kingdom App No 32555/96 (ECHR, 19 October 2005) [GC] • Rowe and Davis v. United Kingdom App No 28901/95 (ECHR, 16 February 2000) [GC] • Salabiaku v. France, App No 10519/83 (ECHR, 7 October 1988) • Sanoma Uitgevers B.V. v. the Netherlands App No 38224/03 (ECHR, 14 September 2010) [GC] • Shimovolos v. Russia App No 30194/09 (ECHR, 21 June 2011) • Slivenko v. Latvia App No 48321/99 (ECHR, 9 October 2003) [GC] • Sunday Times v. United Kingdom App No 6538/74 (ECHR, 26 April 1979 • Uzukauskas v. Lithuania App No 16965/04 (ECHR, 6 October 2010) • Zeibek v. Greece App No 34372/97 (EComHR, 21 May 1997)

UK: • Abu Hamza al-Masri v. The Secretary of State for the Home Department (2010) UKSIAC/23/2003 • B2 v. The Secretary of State for the Home Department (2012) UKSIAC/114/2012 • B2 v. The Secretary of State for the Home Department (2013) EWCA Civ 616 • G1 v. The Secretary of State for the Home Department (2012) EWCA Civ 867 • L1 v. The Secretary of State for the Home Department (2014) UKSIAC/100/2010 • L1 v. The Secretary of State for the Home Department (2013) EWCA Civ 906. • S1, T1, U1 & V1 v. The Secretary of State for the Home Department (2012) UKSIAC/106/107/108/109/2012 • Y1 v. Secretary of State for the Home Department (2012) UKSIAC/112/2011

Treaties • Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Article 6(1) • European Union (26 Oct. 2012) Charter of Fundamental Rights of the European Union, 2012/C 326/02 • European Union (June 2006) Commentary of the Charter of Fundamental Rights of the European Union. • UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, Vol. 989,

37

UK Legislation (in chronological order) • Naturalization Act 1870, 12 May 1870, • Section 20 British Nationality Act 1948 (30th July 1948) Chapter 56, 11 and 12 Geo 6, • The British Nationality Act 1981 (1 January 1983) [United Kingdom of Great Britain and Northern Ireland], Chapter 61 • The Nationality, Immigration and Asylum Act 2002 (7 November 2002) [United Kingdom of Great Britain and Northern Ireland], Chapter 41 • Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, (4 April 2005), Chapter 19, Schedule 2, Part 1. • Immigration, Asylum and Nationality Act 2006 (30 March 2006) [United Kingdom of Great Britain and Northern Ireland], Chapter 13, • The Immigration Act 2014 (14 May 2014) [United Kingdom of Great Britain and Northern Ireland] Chapter 22, 14 • Counter-Terrorism and Security Bill 2015 (12 February 2015) Chapter 6, Part 1 Chapter 1, Chapter 2.

• The Special Immigration Appeals Commission (Procedure) Rules 2003 (12 April 2015) No. 1034,

Resolutions • United Nations Security Council Resolution 2178 (S/RES/2178), (24 Sep 2014) Available at: http://www.un.org/en/sc/ctc/docs/2015/SCR%202178_2014_EN.pdf

Website UK government • House of Commons, Home Affairs Committee, Counter-terrorism, Seventeenth Report of Session 2013-2014 (30 April 2014). Available at: http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/231/2 31.pdf • House of Commons, Home Affairs Section (2015) Deprivation of British citizenship and withdrawal of passport facilities p. 1, available at: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06820 • Government United Kingdom Website, (16 July 2015) ‘Types of British nationality’ available at: https://www.gov.uk/types-of-british- nationality/overview • Home Office (Jan 2014) Immigration Bill, Fact Sheet: Deprivation of Citizenship (Clause 60). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil e/277578/Factsheet_15_Deprivation.pdf • House of Lords, House of Commons, Joint Committee on Human Rights (3 March 2014). Legislative Scrutiny: Immigration Bill (second Report) Twelfth Report of Session 2013-14. Available at: http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/142/142. pdf • Parliament United Kingdom Website, House of Commons Debate (1 Sep 2014) col 26, 33, 38. Available at: http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140901/d ebtext/140901-0001.htm#1409016000154

38 • Parliament United Kingdom Website, Committee Debates ‘National, Immigration and Asylum Bill’ (22 May 2002) available at: http://www.publications.parliament.uk/pa/cm200102/cmstand/e/st020430/p m/20430s14.htm • Parliament United Kingdom Website, Committee Publications, Human Rights Joint Committee (12 Jan 2015) Legislative Scrutiny: Counter-Terrorism and Security Bill. Available at: http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/86/8605. htm#note45

39