Proportionality and The United Kingdom’s policy on Nationality

Deprivation as a Counter-Terrorism Measure: A Case for Concern

International Law and Global Governance – Master Thesis

Name: Emma Tuininga

Student no.: 699086/u1276440

Date: 14/08/2019

Supervisor: Dr. Laura van Waas Abstract

Nationality deprivation has gradually become an essential tool to many Western states in their fight against terrorism. Where most policies contain a prohibition on statelessness, the United

Kingdom has recently introduced the power to strip a naturalized national of their citizenship, if it is reasonably believed they have access to another one. This has the possibility to set a dangerous precedent, one which cannot escape scrutiny. The principle of proportionality is a way to keep ‘check’ of such policies, holding the state accountable to their international human rights obligations. This thesis will consider proportionality in the United Kingdom’s policy, through the question: To what extent do the United Kingdom policies on counter- terrorism, especially on the deprivation of nationality of those who are, or are suspected to be, involved with terrorism, breach the (international) principle of proportionality? A proportionality test informed by Aharon Barak’s ‘four-stage test’ of (1) proper purpose, (2) rational connection (3) necessity and (4) proportionality stricto sensu applied to the United

Kingdom’s nationality deprivation policy will uncover a case for concern, especially to international human rights law. Comparing it to the other counter-terrorism measures of

Temporary Exclusion Orders (TEOs) and the confiscation of an individual’s passport, nationality deprivation will reveal itself to be a distinctive and invasive measure, encroaching upon the basic human rights of an individual.

Key words: proportionality, nationality deprivation, United Kingdom, counter-terrorism measures, statelessness

- 2 - Table of Contents

Abstract...... - 2 -

1.0 Chapter I: Introduction ...... - 5 -

1.1 Methodology...... - 9 -

1.2 Limitations ...... - 9 -

2.0 Chapter II: International Law, the Principle of Proportionality and its Constrains on Counter Terrorism

Measures ...... - 11 -

2.1 The General Principle of Proportionality in (International) Law ...... - 11 -

2.2 Barak’s Four Components of Proportionality ...... - 12 -

2.3 Proportionality and Human Rights ...... - 13 -

2.3.1 Proportionality and Nationality Deprivation ...... - 14 -

2.3.2 Proportionality, Counter-Terrorism and Nationality Deprivation ...... - 16 -

3.0 Chapter III: The United Kingdom’s Counter-Terrorism Strategy ...... - 18 -

3.1 A Short History of Terrorism and Counter-Terrorism Measures in the United Kingdom ...... - 18 -

3.2 CONTEST: United Kingdom’s Counter-Terrorism Measures ...... - 19 -

3.2.1 The United Kingdom’s Policy on Nationality Deprivation...... - 21 -

3.2.2 Counter-Terrorism Security Act 2015: Temporary Exclusion Orders (TEOs) and Passport

Confiscation ...... - 25 -

3.3 Trends in the United Kingdom’s Approach to Counter-Terrorism ...... - 27 -

4.0 Chapter IV: The United Kingdom’s Counter-Terrorism Measures, Nationality Deprivation and

Proportionality ...... - 29 -

4.1 The United Kingdom’s policy on Nationality Deprivation: Is it Proportional? ...... - 29 -

4.1.1 Proportionality and the Right to Nationality: A Lack of Response by the Court’s to the United

Kingdom’s Counter-Terrorism on Nationality Deprivation...... - 35 -

- 3 - 4.2 Nationality Deprivation and Proportionality: A Distinct Counter-Terrorism Measure ...... - 36 -

4.3 Proportionality, Counter-Terrorism and its Challenges ...... - 38 -

5.0 Chapter V: Discussion and Conclusion ...... - 40 -

5.1 The United Kingdom, Nationality Deprivation and Proportionality: A Case for Concern ...... - 40 -

5.2 The United Kingdom’s Policy on Nationality Deprivation: General Observations ...... - 41 -

5.2.1 Nationality Deprivation, Terrorism and Statelessness: A Warning for the Future ...... - 41 -

5.2.2 Nationality Deprivation in Europe: An Ineffective Tool to Fight Terrorism ...... - 43 -

5.3 Future Research: Areas that Warrant Further Attention ...... - 43 -

Bibliography ...... - 47 -

- 4 - 1.0 Chapter I: Introduction

“And if human rights laws stop us from doing it, we will change those laws so we can do it,”

Theresa May, General Election 2017.1

In 2015, Shamima Begum and two other British teenage girls travelled to Islamic State territory in Syria. Four years later, now 19-years old, Begum found herself in a refugee camp, looking to return to the United Kingdom. On February 19, 2019, the then Home Secretary

Sajid Javid responded by depriving her of her British nationality, stating that she would be able to claim Bangladeshi nationality through her parents.2 Bangladesh, however, has said that Begum is not considered a national of the country, making her effectively stateless.3

Issues about the legality of such a decision were quickly raised, questioning whether it met the standards set out in British nationality laws, as well as international law obligations.

Begum is not the only UK citizen who has received a nationality deprivation order from the

Home Secretary. Since 2010, more than 150 people had seen their nationality stripped away from them on the grounds of terrorism, with 104 losing their citizenship in 2017 alone.4

Begum and the other cases are part of a larger discourse held in many Western states on terrorism and the deprivation of nationality as one of the ways to counter this threat. On

September 11, 2001, the terrorist attacks in New York caused great devastation across the city and across the United States. Although, terrorism had known many faces over the years,

1 As cited by Rowena Mason and Vikram Dodd, “May: I’ll rip up human rights laws that impede new terror legislation,” The Guardian, 6 June 2017, https://www.theguardian.com/politics/2017/jun/06/theresa-may-rip- up-human-rights-laws-impede-new-terror-legislation 2 Kevin Rawlinson and Vikram Dodd, “Shamima Begum: Isis Briton faces move to revoke citizenship,” The Guardian, February 19, 2019 https://www.theguardian.com/world/2019/feb/19/isis-briton-shamima-begum- to-have-uk-citizenship-revoked 3 Esther Addley and Redwan Ahmed, “Shamima Begum will not be allowed here, says Bangladesh,” The Guardian, February 20, 2019 https://www.theguardian.com/uk-news/2019/feb/20/rights-of-shamima- begums-son-not-affected-says-javid 4 Lizzle Dearden, “Shamima Begum: Number of people stripped of UK citizenship soars by 600% in a year,” The Independent, February 20, 2019 https://www.independent.co.uk/news/uk/home-news/shamima-begum-uk- citizenship-stripped-home-office-sajid-javid-a8788301.html

- 5 - this day had instilled a new wave of fear in Western states, perceived it as an “attack on civilization.”5 Rigorous counter-terrorism measures were developed as a part of the response, so too in the United Kingdom. The Anti-Terrorism, Crime and Security Act in 2001, for example, provided for certain liberties on detention of a suspected terrorist.6 Although, this

Act has partly been repealed over the last two decades,7 it did serve, like in many other countries, as a jump-off point towards stricter and more comprehensive anti-terrorism legislation. As new threats such as the Islamic State started to emerge and radicalization and support for terrorist organizations significantly increased,8 countries sought to further their powers to deal with the threat of terrorism. Following 2001, the United Kingdom introduced a string of Acts and established counter-terrorism measures such as a Temporary Exclusion

Order (TEO) to manage the return of nationals who had gone abroad to fight.

Highlighted as a considerable concern to the counter-terrorism measure on nationality deprivation is arbitrary removal. Although, the policies on the deprivation of nationality were nothing new to most Western countries, and the United Kingdom alike, often allowing for stripping based on the acquisition of nationality through fraud or deception, the growing use of it in cases of suspected or involvement with terrorism warrants a close examination. According to article 15 of the Universal Declaration of Human Rights (UDHR) the

5 Dennis C Mueller, “Rights and citizenship in a world of global terrorism,” European Journal of Political Economy 20, no. 2 (June 2004): 335-348 https://www.sciencedirect.com/science/article/pii/S0176268004000035 6 Virginia Helen Henning, “Anti-Terrorism, Crime and Security Act 2001: Has the United Kingdom Made a Valid Derogation from the European Convention on Human Rights,” American University International Law Review17, no. 6 (2002): 1263-1298. https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/amuilr17&id=1284&men_tab=src hresults 7 Clive Walker, “Anti-Terrorism Laws: The United Kingdom’s unfinished history,” in Routledge Handbook of Terrorism and Counterterrorism, ed. Andrew Silke (Routledge, 2018). https://books.google.nl/books?hl=en&lr=&id=23tqDwAAQBAJ&oi=fnd&pg=PT420&dq=Anti- terrorism,+Crime+and+Security+Act+2001+&ots=nE51lDFQtZ&sig=4vac0HMD- 6NfJ08_0jxul5JniC0#v=onepage&q=Anti-terrorism%2C%20Crime%20and%20Security%20Act%202001&f=false 8 Anna Wojtowicz, “Islamic Radicalization in the UK: Index of Radicalization,” International Institute for Counter-Terrorism, 2012. https://www.ict.org.il/UserFiles/Islamic%20Radicalization%20in%20UK.pdf

- 6 - right to nationality is a basic human right of which “no one shall be arbitrarily deprived...”.9

General (international) principles of proportionality and non-discrimination are essential to establish the legitimacy of these policies.10 Despite, international human rights law and international human rights institutions allowing for a certain level of State discretion when it comes to human rights, excluding the absolute right to life or prohibition of torture, they uphold these criteria to avoid any abuse. Non-discrimination and the differential treatment of dual citizens and those with one nationality within the legislation on terrorism has been previously discussed by many scholars and experts, with the Amicus brief of the UN Special

Rapporteur on contemporary forms of racism, racial discrimination xenophobia and related intolerance stating that “this tiered citizenship is… impermissible because it discriminates on the basis of ethnicity, national origin and descent” in response to the Dutch policy.11 The principle of proportionality, however, has enjoyed less international attention, despite its importance to the legitimacy of these policies. Here, the United Kingdom’s policy on nationality deprivation presents an interesting analysis. A report showed that the United

Kingdom had seen the most terrorism-related deaths in 2017 than any other European country.12 It is, therefore, not surprisingly that the United Kingdom has a clear

‘instrumentalist’ tradition in counter-terrorism measures, where human rights have suffered

9 Universal Declaration on Human Rights, Paris, 10 December 1948 https://www.un.org/en/universal- declaration-human-rights/ 10 Sangita Jaghai and Laura van Waas, “All Citizens are Created Equal, but Some are Created More Equal than Others,” Netherlands International Law Review 65, no. 3 (December 2018): 426. https://link.springer.com/article/10.1007%2Fs40802-018-0123-8 11 The UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. “The Dutch Immigration and Naturalisation Service.” Amicus Brief, October 23, 2018. https://www.ohchr.org/Documents/Issues/Racism/SR/Amicus/DutchImmigration.pdf 12 Lizzle Dearden, “UK suffered more terror attacks deaths than any other EU country in 2017, report finds,” The Independent, June 20, 2018 https://www.independent.co.uk/news/uk/crime/uk-terror-attacks-deaths- most-eu-2017-europol-threat-laws-human-rights-a8408821.html

- 7 - at the expense of the fight against terrorism.13 The British nationality law has given the

Secretary of State far-reaching powers to deprive a (suspected) terrorist of their nationality, based upon the seemingly vague notions of “conducive to the public good” and “seriously prejudicial to the vital interests” of the United Kingdom for them to have it. Add the possibility of statelessness and the United Kingdom has created a dangerous policy, unlike many of the other Western countries, which have a strict prohibition on statelessness. It is, therefore, not necessarily an example of the broader picture, but will attempt to lay bare the problematic nature of this policy and give insight into the legality of future expansions of nationality deprivation powers in other countries, like is currently happening in Australia.14 To be able to fully consider the distinctiveness of nationality deprivation as a counter-terrorism measure and how it is situated within the principle of proportionality, other counter-terrorism measures deployed by the United Kingdom will be shortly discussed. Two counter-terrorism measures put in the same sphere as the policy on citizenship stripping, Temporary Exclusion

Order (TEO) and the confiscation of a passport, will serve as a comparison. Considering all this, the question that will be answered in this thesis is: To what extent do the United Kingdom policies on counter-terrorism, especially on the deprivation of nationality of those who are, or are suspected to be, involved with terrorism, breach the (international) principle of proportionality?

Chapter II will start off with the principle of proportionality, serving as the framework for the later ‘proportionality test’ in Chapter IV. A short overview of the United Kingdom’s counter-terrorism strategy is done in Chapter III. Here, the policy on nationality deprivation,

13 Bram van Riezen and Karlijn Roex, “Counter-terrorism in the Netherlands and the United Kingdom: a comparative literature review study,” Social Cosmos 3, no. 1 (2012): 97. 14 Timnah Baker, “Deprivation of nationality on national security ground in Australia: Part of a wider trend,” The European Network on Statelessness, https://www.statelessness.eu/blog/deprivation-nationality-national- security-grounds-australia-part-wider-trend

- 8 - as well as the other two counter-terrorism measures will be expanded on further. In Chapter

IV, the United Kingdom’s nationality deprivation policy will be subjected to the

‘proportionality test’. Following that, the relation between proportionality and the other counter-terrorism measures will be compared to that of citizenship stripping, highlighting the problematic characteristics of the existence of this policy. The last chapter (Chapter V) will serve as the discussion and conclusion of this thesis.

1.1 Methodology

A mixed approach will be used in doing the research set out above. Firstly, the principle of proportionality discussed in Chapter II will primarily built upon the four-stage test set out in the book Proportionality: Constitutional Rights and Limitations by Aharon Barak.

This will be complemented by several sources of international human rights law, such as the

Human Rights Council, who have an authoritative understanding of proportionality in terms of the human right to nationality. Following this, government publications, independent reports and secondary literature such as journal articles and books will be the main point of supply for the third and fourth Chapters.

1.2 Limitations

By nature of this thesis, the research will be limited to the principle of proportionality in the United Kingdom’s counter-terrorism policy on nationality deprivation. Nationality deprivation as a counter-terrorism measure has many areas that can be explored, including the principle of non-discrimination or whether the right to a fair trial is respected. In order to allow for a certain level of depth, the principle of proportionality will be the main focus of concern here. Considering more than this would not give this issue the attention and justice

- 9 - it deserves. Furthermore, to be able to place the analysis of proportionality in reality, the

United Kingdom will serve as an interesting case to explore the principle, especially because of the characteristics of the United Kingdom’s policy. Lastly, it will suffice to discuss only two counter-terrorism measures, those of the Temporary Exclusion Order and the confiscation of a passport. These have been put in the same sphere as the policy on nationality deprivation by the United Kingdom and will, therefore, allow for a valuable comparison between these counter-terrorism measures.

- 10 - 2.0 Chapter II: International Law, the Principle of Proportionality and its Constrains on

Counter Terrorism Measures

2.1 The General Principle of Proportionality in (International) Law

Proportionality is considered to be a general principle of law. By definition, proportionality acknowledges the necessity of a fair balance between two opposing affairs, or the action that is being performed and the ultimate result.15 The principle is used throughout domestic civil and common law systems, especially in criminal law, but has also gradually become a fundamental element at the international level. International humanitarian law, or the law of armed conflict (jus in bello), for example, sees proportionality as a restraint to excessive military force by a state and has been put in place to protect civilians from such harm. The use of armed force (jus ad bellum), on the other hand, requires the answer of a state to be in relation to the aggressive offensive that has been carried out either against them, or as a collective response to it.16 Furthermore, proportionality in international human rights law aims to limit the possibility for states to bind fundamental rights, such as the right to nationality central to this thesis.17 The latter’s approach to the principle will, therefore, significantly inform the borders of the proportionality framework that will be established throughout this Chapter.

15 Judith Gardam, “Proportionality in International Law,” last modified March 30, 2017, https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0147.xml 16 Judith Gardam, “Proportionality and Force in International Law,” The American Journal of International Law 110, no. 4 (October 2016): 391. 17 Thomas Cottier, Roberto Echandi, Rafael Leal-Arcas, and Rachel Liechti, “The Principle of Proportionality in International Law,” SSRN Electronic Journal 38 (December 2012): 1.

- 11 - 2.2 Barak’s Four Components of Proportionality

In his book Proportionality: Constitutional Rights and their Limitations, Aharon Barak speaks on the principle of proportionality in general, how it should be viewed and how it should fit into constitutional law and constitutional rights. Relevant here, Barak lays down a concise four-stage proportionality test:

“(1) It is designed for a proper purpose (2) the measures undertaken to effectuate

such a limitation are rationally connected to the fulfilment of that purpose (3) the

measures undertaken are necessary in that there are no alternative measures that

may similarly achieve that same purpose with a lesser degree of limitation and (4)

there needs to be a proper relation (proportionality stricto sensu or ‘balancing’)

between the importance of achieving the proper purpose and the social importance

of preventing the limitation on a constitutional right.”18

Proportionality should, thus, according to Barak, see first and foremost a ‘proper purpose’, in so far that the restrictions put on a constitutional right by a state serve a legitimate aim, which can be considered acceptable in a democratic society.19 Such limitations can be permissible if, for example, it was done to protect public health and morals, or if there was a threat to the security of the state.20 Some rights, however, can never see restrictions, including the absolute right to life or the prohibition on torture. Secondly, there must be a

‘rational connection’ between the measures put in place to restrict a constitutional right and

18 Jaghai and van Waas, “All Citizens are Created Equal,” 426. 19 Natasha Buontempo, “Stages in the Principle of Proportionality,” ACADEMIA, 5. https://www.academia.edu/21038017/Stages_of_the_Principle_of_Proportionality 20 Ibid.

- 12 - the intended goal, meaning that the means used by a state must work towards the achievement of their pre-determined purpose. ‘Necessity’ of such measures is the third criteria set out by Barak. A limitation of a constitutional right shall be brought about through the least restrictive measure available. If a measure is used or a law is passed, but a less damaging alternative is possible, such cannot be considered necessary.21 Lastly,

‘proportionality stricto sensu’ intends to balance both sides of the situation, looking at the arguments for the limitation of the right and whether these weigh-up against the level of interference with the constitutional right. Either the measure or the right might hold more significance than the other, for example, if a threat to the security of a society is so severe, the right to privacy can become less important.22

Barak’s four-stage test delivers a general and concise framework on how the principle of proportionality should be approached. Although, other theories have been put forward over the years, they appear to incorporate Barak’s four components one way or the other.23

Barak’s focus on constitutional rights, which are similar in nature to human rights, also enables for a relevant connection to proportionality at the level of international human rights law, where purpose, necessity and the balancing of measures and rights are often mentioned when discussing proportionality.

2.3 Proportionality and Human Rights

Generally, the principle of proportionality in international human rights law seeks to ascertain whether a State’s limitation of a human right violates their responsibilities under

21 Ibid., 7-8. 22 Aharon Barak, “Proportionality strict sensu (balancing),” in Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012), 340-370. 23 Buontempo, “Stages in the Principle of Proportionality,” 11-12.

- 13 - this area of international law, or if such can be justified.24 Proportionality, thus, serves as a safeguard against a State’s abuse of fundamental human rights, but on the other hand allows for restrictions upon these if necessary. Most legal human rights documents do not mention or explain what proportionality entails and how it should be assessed. Over the years, however, numerous authoritative institutions, such as the Human Rights Council (HRC), or regional courts like the European Court of Human Rights (ECtHR), have expanded on the relationship between human rights and the proportionality principle. The latter, for example, firstly considers whether the measure has a basis in national law and if it is used towards a legitimate aim. Then, the courts examine the suitability of the measure to the aim, if the least intrusive measure has been used and, lastly, weighs up the benefit to society with the harm on individual human rights,25 all similar in nature to the four-stage test by Barak set out in the previous section.

2.3.1 Proportionality and Nationality Deprivation

Under article 15 of the Universal Declaration of Human Rights (UDHR), the right to a nationality is recognized as a basic human right, one who everyone should be able to enjoy.

This notion has been reaffirmed in multiple other international documents, such as the

International Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW).26 As nationality creates a legal bond between a person and the State, requiring the latter to protect the first’s fundamental rights, a lack of such will leave them vulnerable and

24 Ytaka Arai-Takahashi, “Proportionality,” in The Oxford Handbook of International Human Rights Law, ed. Dinah Shelton (Oxford University Press, 2013), 3-4. 25 Ibid. 26 UN Human Rights Council, Human rights and arbitrary deprivation of nationality: report of the Secretary General, A/HRC/13/34 (14 December 2009). https://www.refworld.org/docid/4b83a9cb2.html

- 14 - oftentimes stateless.27 Despite international law allowing States a level of discretion over how to construct their nationality laws and, thus, who they consider a national of theirs, paragraph

2 of article 15 prohibits the arbitrary deprivation of a person’s nationality. According to a 2009 report by the Human Rights Council,28 necessary to determine whether one is being

‘arbitrarily deprived’ of their nationality are: non-discrimination; whether it has a legal basis in national legislation; the availability of appeal or the right to a fair trial; whether it has a legitimate aim; is the least intrusive measure available; and lastly, is proportional.29 Here, proportionality is mainly considered as ‘proportionality stricto sensu’, weighing up the public and individual’s interests, whereas the other components, such as the ‘proper purpose’, are mentioned separately. Another report published in 2013, reiterated many of these previously made observations. It affirms that, even when nationality does not lead to statelessness, “loss or deprivation of nationality that does not serve a legitimate aim, or is not proportionate, is arbitrary and therefore prohibited”.30 Proportionality and nationality deprivation were also the subject of a now well-known European Court of Justice case (ECJ), Rottmann v. Freistaat

Bayern (Case C-135/08). The case concerned the loss of German nationality, which had been acquired through naturalization, on the basis of fraud. When the German authorities decided to strip Rottmann of his nationality, and effectively of his rights within the Union, he was left stateless. The ECJ saw no violation in the withdrawal of nationality that has been accessed through deceit itself, but only if it follows the principle of proportionality. Such should be considerate of the consequences the decision to take away nationality has on the person and

27 Jaghai and van Waas, “All Citizens are Created Equal,” 426. 28 UN Human Rights Council, A/HRC/13/34. 29 Sangita Jaghai, “Citizenship deprivation, (non) discrimination and statelessness: A case study of the Netherlands,” Statelessness Working Paper Series, no. 7 (December 2017): 9. 30 UN Human Rights Council, Human rights and arbitrary deprivation of nationality: report of the Secretary General, A/HRC/25/28 (19 December 2013), para. 40.

- 15 - their enjoyment of human rights and their rights within the European Union, whether the withdrawal weighs up against the reason for it, and whether that person is able to get their previous nationality back.31 The ECJ, however, did not give an explanation as to how the individual versus the social interest should be weighed.32

2.3.2 Proportionality, Counter-Terrorism and Nationality Deprivation

Terrorism directly threatens the security of a country, having the ability to destabilize the economy and cause disrupt amongst public society. Consequently, the protection of fundamental human rights, such as the right to life, can become problematic.33 A State, thus, has a duty to ensure that these basic rights are safeguarded from the danger terrorism poses.

Counter-terrorism measures should still, however, comply with international human rights law, avoiding any abuse of these rights under the pretense of security. In resolution 1456

(2003), the Security Council acknowledged that any counter-terrorism measure must submit to the State’s responsibilities under international law and its principles, especially those of international human rights law.34 Proportionality here is seen as not only a protection of rights, but also as a tool to aid the creation of effective counter-terrorism measures, allowing for certain human rights to be limited, if done following the several criteria.35 One such basis for limitation could be “acts seriously prejudicial to the vital interests of the State”.36 The 2013 report on human rights and arbitrary deprivation of nationality sees the threat to the security

31 Jaghai, “Citizenship deprivation,” 9. 32 Steve Peers, “Citizens of Somewhere Else? EU Citizenship and loss of Member State nationality,” EU Law Analysis, March 27, 2019 http://eulawanalysis.blogspot.com/2019/03/citizens-of-somewhere-else-eu.html 33 Office of the United Nations High Commissioner for Human Rights, “Human Rights, Terrorism and Counter- terrorism,” Fact Sheet No. 32. https://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf 34 Security Council resolution 1456, combatting terrorism, S/RES/1456 (20 January 2003) http://unscr.com/en/resolutions/doc/1456 35 OHCHR, “Human Rights,” 24. 36 UN Human Rights Council, A/HRC/25/28, para. 12-13.

- 16 - of public society as a reason to be restrictive towards the right of nationality. The 1961

Convention on the Reduction of Statelessness also, despite the general prohibition on nationality deprivation that leads to statelessness, permits for the deprivation of nationality if someone “has conducted himself in a manner seriously prejudicial to the vital interests of the State” (art. 8(3)(a)(ii)).37 Such could come to include the nationality of those individuals who are involved with, or suspected of terrorism, as they are seemingly putting the security of a State at risk.

37 Convention on the Reduction of Statelessness, New York, 30 August 1961 https://en.wikipedia.org/wiki/Convention_on_the_Reduction_of_Statelessness

- 17 - 3.0 Chapter III: The United Kingdom’s Counter-Terrorism Strategy

3.1 A Short History of Terrorism and Counter-Terrorism Measures in the United Kingdom

The United Kingdom has a rich history of measures put in place to fight terrorism.

During the 1880s, Irish attacks aimed at gaining more autonomy for the region saw the creation of the first counter-terrorism unit, also known as ‘Special Branch’.38 This force is still in use today, albeit their powers have changed over the years. In the following century, the

United Kingdom would continue to be met with resistance from the Irish Republican Army

(IRA), with most attacks primarily happening during the 1970s through to the 1990s.39

Counter-terrorism measures during this period were very much regarded to be of temporary nature and no concise body of legislation on terrorism seemed to exist.40

2001 changed that. The terrorist attacks on September 11 in the United States and an incident in the United Kingdom itself, the Oldham racial riots in May, triggered a revision of the counter-terrorism legislation of the United Kingdom. The first had raised concerns about the threat to the security of the United Kingdom from outside, the latter on integration and what it meant to be a British citizen.41 Multiple acts on terrorism were passed, including the

Terrorism Act of 2000. This act was one of the first in a series of legislation adopted on terrorism, laying down how ‘terrorism’ and ‘terrorist acts’ should be defined, as well as the possibility to detain a person for a maximum of 7 days before being charged with anything. It also gave far-reaching powers to police of search and arrest, allowing for the creation of so- called ‘authorization zones’ where an individual can be searched without suspicion, a power

38 Jaswant Singh Boora, Safeguarding from Extremism: A new approach post 7/7 (Paragon Publishing, 2015), 45 39 Joseph McQuade, “Terrorism in Britain: a brief history,” The Conversation, May 25, 2017, https://theconversation.com/terrorism-in-britain-a-brief-history-78362 40 Maria Norris, “Fifteen years on from 9/11, how the UK bypassed justice to become a counter-terrorism state,” NewStatesman, September 11, 2016 https://www.newstatesman.com/politics/uk/2016/09/fifteen- years-911-how-uk-bypassed-justice-become-counter-terrorism-state 41 Ibid.

- 18 - which was eventually ruled to be illegal by the ECtHR in 2010.4243 Other acts include the Anti-

Terrorism, Crime and Security Act of 2001, which has partly been repealed over the last two decades.44

On July 7, 2005, London became the subject of several terrorist suicide attacks. Tony

Blair, the then prime minister and leader of the Labour party, reacted in a speech a month after the terrorist attacks, stating that the ‘rules of the game have changed…”45 Although, the

British government had a change of plans on the table prior, the London attacks seemingly fast-tracked an expansion in counter-terrorism measures. The Terrorism Act of 2006, for example, extended the days of detention from 7 to 28, all building onto the powers of the

United Kingdom government to fight terrorism.46

3.2 CONTEST: United Kingdom’s Counter-Terrorism Measures

The British counter-terrorism strategy, also known as ‘CONTEST’, comprises the

United Kingdom’s approach to fight terrorism, all collected in one document. Under the responsibility of the Home Secretary, it joins multiple government branches, the private sector and other organizations involved with counter-terrorism together. It provides them with a framework on how to “reduce risk to the UK and its citizens and interests overseas from terrorism, so that our people can go about their lives freely and with confidence.”47 The

42 Yogev Tuval, “Anti-Terrorism Legislation in Britain and the U.S. after 9/11,” The Israel Democracy Institute, September 10, 2008. https://en.idi.org.il/articles/6936 43 “Stop-and-search powers ruled illegal by European court,” BBC News, 12 January, 2010. http://news.bbc.co.uk/2/hi/uk_news/8453878.stm 44 Henning, “Anti-Terrorism, Crime and Security Act 2001,” 1269. 45 Patrick Wintour, “Blair vows to root out extremism,” The Guardian, 6 August 2005. https://www.theguardian.com/politics/2005/aug/06/terrorism.july7 46 Tuval, “Anti-Terrorism Legislation.” 47 Her Majesty’s Government, CONTEST: The United Kingdom’s Strategy for Countering Terrorism, June 2018: 7 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/716907/ 140618_CCS207_CCS0218929798-1_CONTEST_3.0_WEB.pdf

- 19 - first version of ‘CONTEST’ already launched back in 2003, with reforms in 2009, 2011 and the latest in June 2018, partly as a response to the attacks in London and Manchester in the year before.4849 The so-called ‘4 P’s’ are at the heart of the British counter-terrorism strategy:

Prevent, Pursue, Protect and Prepare. The Prevent strand, shortly put, deals with radicalization and support for terrorism. Measures under this ‘P’ include interventions and rehabilitation of those radicalized individuals through the Desistance and Disengagement Program, which mainly focusses on individuals who have been subject to other measures, such as a

Temporary Exclusion Order (TEO) upon their return from a conflict. Further, the limiting of possibilities for individuals to spread content on terrorism online and the civil society’s duty to prevent and report if necessary are mentioned. Second, Pursue aims to prevent a terrorist attack from occurring. It will do so through, for example, the use of intelligence and data analysis to detect possible threats, or the ‘disruption of terrorist activity.’50 The latter includes an array of legal powers, based within the several Terrorism Acts: temporary confiscation of an individual’s passport, TEOs, both based in the Counter-Terrorism and Security Act 2015, and, last but not least, deprivation of nationality, made possible partly through the

Immigration Act of 2014. Protect appears to be rather straight-forward: protect society against a terrorist attack. Here, the United Kingdom can perform checks at its border in order to detect possible individual terrorist threats by using, for example, the Advance Passenger

Information (API), and give training on how to deal with terrorism in large, crowded areas to police units.51 Lastly, Prepare comes in when an attack could not be stopped, focusing on the

48 Ibid., 3. 49 Erika Brady, “An Analysis of the UK’s Counter-Terrorism Strategy , Contest and the Challenges in its Evaluation,” Sicherheits politik-blog, October 10, 2016 https://www.sicherheitspolitik-blog.de/2016/10/10/an- analysis-of-the-uks-counter-terrorism-strategy-contest-and-the-challenges-in-its-evaluation/ 50 HM Government, CONTEST, 47-51. 51 Ibid., 53-62

- 20 - direct impact and how to best deal with that. Training of emergency services, large-scale police and military support during an attack, such as Operation TEMPERER, and thorough coordination between the different units that respond to a terrorist attack through the Joint

Emergency Service Interoperability Services (JESIP), are counter-terrorism measures included under this branch.52 Although, ‘CONTEST’ follows the ‘4 P’s’, they are not entirely separated from each other, but rather overlap in certain places, for example, the branches Prevent and

Pursue within the Desistance and Disengagement Program.

As the United Kingdom has grouped nationality deprivation, which is central to this thesis, together with the counter-terrorism measures of passport seizure and TEOs within the branch of Pursue, these measures will be subject of further analysis and comparison below and in Chapter IV.

3.2.1 The United Kingdom’s Policy on Nationality Deprivation

Nationality deprivation in the United Kingdom dates back to early 20th century, however, it only started to gain momentum over the last two decades. The Status of Aliens

Act in 1914 granted the Secretary of State the power to undo naturalization if it had been acquired through fraud, but this was further expanded upon after World War I. In 1918, it was made possible to strip a naturalized citizen of their nationality if it was considered ‘not conducive to the public good,’ making citizenship dependent upon the disloyalty of a person towards the United Kingdom. 53 After the colonies of the United Kingdom started to gain their

52 Ibid., 63-69. 53 Matthew J Gibney, “The Deprivation of Citizenship in the United Kingdom: A Brief History,” Journal of Immigration Asylum and Nationality Law 28, no. 4 (December, 2014): 327 http://sprc.info/wp- content/uploads/2015/02/Gibney-article.pdf

- 21 - independence, the nationality law came to include ‘registered’ citizens, besides those who acquired nationality through naturalization. ‘Registered’ citizens, on the basis of the British

Nationality Act (BNA) of 1948, are those who could claim British nationality through their association with the previous British empire, if they had been living in the United Kingdom for at least one year. A prohibition to statelessness was only introduced in the 1964 Act, when the United Kingdom attempted to bring their policy in line with the 1961 Convention on the

Reduction of Statelessness.54 In 1981, the BNA was updated again and remains mostly in use today. It made nationality deprivation possible if it had been acquired through fraud, the person had acted disloyal towards the United Kingdom, communication with the enemy, and imprisonment.55 The statelessness barrier put in place by the 1964 Act was removed, now allowing for the stripping of citizenship even if they had no access to another nationality. The usage of this power, became, surprisingly enough, relatively inactive up until the 1990s. Until

2002, no cases of deprivation of nationality had occurred for 30 years, besides those based on fraud.56

In 2002, the Nationality, Immigration and Asylum Act sought to partly amend the

British Nationality Act 1981. It enabled the Secretary of State to take the nationality away of all British citizens, be it by birth, or through naturalization, on the basis of them having it being

‘seriously prejudicial to the vital interests’ of the United Kingdom. Such a denationalization, however, could not be applied if it would render one stateless, meaning that only dual

54 Ibid., 329. 55 David Anderson, “First Report of the Independent Reviewer on the Operation of the Power to Remove Citizenship Obtained by Naturalisation from Persons Who have No Other Citizenship,” Independent Reviewer of Terrorism Legislation (April 2016), 6. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/518120/ David_Anderson_QC_-_CITIZENSHIP_REMOVAL__web_.pdf 56 Gibney, “The Deprivation of Citizenship in the United Kingdom,” 330.

- 22 - nationals could be affected.57 Four years later, another change was made to the policy of nationality deprivation. The Blair government introduced a new, arguably lesser, reason for nationality deprivation in the Immigration, Asylum and Nationality Act 2006, namely if such would be ‘conducive to the public good.’58 Again, statelessness could not be the result of the withdrawal of nationality. Even though, this power was readily available to the British government, it was rarely used until the 2010s, and appeared then to be a rather symbolic answer to the rise of terrorism. By mid-2014, however, David Cameron’s Conservative government had taken away the nationality of 23 people involved with terrorism on the basis of the 2006 Act.59 It had now become evident that the measure of nationality deprivation was no longer merely symbolic, but was seen as an effective tool to counter and punish terrorism.

As the number of British foreign terrorist fighters traveling to Syria seemed to increase, the

United Kingdom sought for more ways to effectively counter terrorism. When the Supreme

Court in the Al Jedda case ruled the deprivation of nationality of an Iraqi refugee accused of being involved in terrorism to be wrongful, because it would lead to him becoming stateless, the government sought to even further their liberties in the latest Immigration Act of 2014.60

3.2.1.1 Immigration Act of 2014

The Immigration of Act 2014 made some alarming changes to the United Kingdom’s power to deprive someone of their nationality. Where denationalization previously was restricted by the possibility that one could become stateless as a result of the measure, the

57 Ibid., 330-332. 58 Sandra Mantu, “Citizenship Deprivation in the United Kingdom,” Tilburg Law Review 19, no.1-2 (January, 2014): 164-166. 59 Gibney, “The Deprivation of Citizenship in the United Kingdom”, 333. 60 Ana Aliverti, “The New Immigration Act 2014 and the Banality of Immigration Controls,” Border Criminologies, 21 May 2014 https://www.law.ox.ac.uk/research-subject-groups/centre- criminology/centreborder-criminologies/blog/2014/05/new-immigration

- 23 - 2014 Act partially removed this limitation. The Secretary of State can decide to take the nationality away of a (i) naturalized person if they believe that it is (ii) ‘conducive to the public good’, because that person has acted ‘in a manner which is seriously prejudicial to the vital interests’ of the United Kingdom, which is similar to the preceding Acts of 2002 and 2006. It has not been made clear in the Act itself what such ‘serious prejudice’ would come to include, but the Explanatory Notes mention national security and terrorism as possible grounds for such denaturalization.61 Added on, however, the Secretary of State can now even do so if they have (iii) ‘reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become the national of such a country or territory.’62 The Act, noticeably, has not laid down what is to be understood with ‘reasonable grounds’, seemingly leaving that up to the Secretary of State.63 This would mean that, besides dual nationals, naturalized citizens, who only have the British nationality for one reason or another, are susceptible to having their nationality stripped away and become stateless.

Despite considerable backlash from human rights organizations and civil society, the far- reaching measure has now been added to the United Kingdom’s counter-terrorism strategy.64

This all can be done by order of the Secretary of State; no criminal trial is required to deprive one of their nationality. If someone has got their nationality taken away, they have the possibility to appeal the decision to the Special Immigration Appeals Commission (SIAC).

This must be done within 28 days of the issue.65

61 Lucia Zedner, “Citizenship Deprivation, Security and Human Rights,” European Journal of Migration and Law 18, no. 2 (June 2016): 233-236. 62 Ibid. 63 Ibid., 234. 64 Colin Yeo, “How is the government using its increased powers to strip British people of their citizenship?” Free Movement, 9 August, 2018. https://www.freemovement.org.uk/british-nationals-citizenship-deprivation/ 65 Zedner, “Citizenship Deprivation,” 234.

- 24 - 3.2.1.2 Different Instruments for Different Nationalities

By way the United Kingdom has designed their policy on nationality deprivation, different instruments or measures are used for different ‘types’ of nationalities. As set out above, dual nationals, who were born in the United Kingdom, but hold the nationality of another country, are subject under the 2006 Act. The Secretary of State is able to strip them of their nationality if them holding it is ‘conducive to the public good.’ Naturalized dual and mono-nationals, on the other hand, can be deprived of their citizenship if the Secretary of

State is satisfied that it is ‘conducive to the public good’, because they have done something that is ‘seriously prejudicial to the vital interests’ of the United Kingdom, and they are able to get the nationality of another country. Lastly, a person who was born in the United Kingdom, and does not hold any other nationality, cannot have their nationality taken away from them.

They are to be punished via other (counter-terrorism) measures, such as a criminal trial, TEOs or confiscation of their travel documents.66

3.2.2 Counter-Terrorism Security Act 2015: Temporary Exclusion Orders (TEOs) and Passport

Confiscation

In 2015, the United Kingdom updated previous and introduced some new counter- terrorism measures in their Counter-Terrorism Security Act 2015 (CTSA), including temporary exclusion orders (TEOs) and the confiscation of travel documents, such as a passport. It particularly seeks to deal with British foreign terrorist fighters (FTF) who attempt to go abroad, and British FTFs who wish to come back to the United Kingdom.67 Temporary

66 Devyani Prabhat, “Shamima Begum: legality of revoking British citizenship of Islamic State teenager hangs on her heritage,” The Conversation, February 20, 2019. https://theconversation.com/shamima-begum-legality-of- revoking-british-citizenship-of-islamic-state-teenager-hangs-on-her-heritage-112163 67 Jessie Blackbourn and Clive Walker, “Interdiction and Indoctrination: The Counter-Terrorism and Security Act 2015,” The Modern Law Review 79, no. 5 (September 2016): 840-870 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2833636

- 25 - exclusion orders were mentioned for the first time in the 2015 Act. The measure is aimed at effectively regulating the return of those British foreign fighters who seek to travel back to their country of nationality. If an order has been imposed upon a person, they are blocked from entering the United Kingdom, and their passport is cancelled immediately.68 A TEO can be issued by the Secretary of State and will be in effect for a maximum of two years, guaranteeing that conditions A to E have been met. One of the requirements is that the

Secretary of State ‘reasonably suspects that the individual is, or has been involved in terrorism-related activity outside the United Kingdom.’ The issue of a TEO is also subject to

Court approval, but such a permission is not necessary if the Secretary of State believes there is ‘urgency’ behind the TEO. Someone who has been put under a temporary exclusion order may be given a ‘permit to return’ by filing an application to the Secretary of State. The

Secretary of State can, in exchange for return, oblige the applicant to, for example, be in continuous close contact with the police.69

The seizure of travel documents, such as a passport, is not necessarily new to the

CTSA. In 2005, the Prevention of Terrorism Act introduced so-called ‘control orders’, aimed at the regulation of those individuals who are suspected to be or are involved with terrorism.70

These orders included several, different types of restrictions, like a limitation to their freedom of movement, where they live, or the confiscation of their passport. The Act was met with heavy criticism, acknowledging the lack of an exhaustive list of what a ‘control order’ could

68 Stef Wittendorp, Roel de Bont, Edwin Bakker & Jeanine de Roy van Zuijdewijn, “Measures against jihadist foreign fighters: A policy comparison between the Netherlands, Belgium, Denmark, Germany, France, the UK and the US (2010 to 2017),” ISGA Report, December 2017. https://www.universiteitleiden.nl/binaries/content/assets/governance-and-global-affairs/isga/report- 2_2017_measures-against-jihadist-foreign-fighters.pdf 69 Bérénice Boutin, “Administrative Measures against Foreign Fighters: In Search of Limits and Safeguards,” International Centre for Counter-Terrorism – The Hague, no 12 (December 2016): 8-9 https://icct.nl/wp- content/uploads/2016/12/ICCT-Boutin-Administrative-Measures-December2016-1.pdf 70 Ibid., 5-6.

- 26 - be, the protection of human rights, as well as questionable access to the right to a fair trial as problematic.71 A few years later, in 2011, the United Kingdom replaced ‘control orders’ by the

Terrorism Prevention and Investigation Measures Act (TPIM). The Secretary of State can issue a TPIM if they think it to be necessary in light of the security of the nation and are ‘satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism- related activity.’ 72 Albeit similar to ‘control orders’, TPMI’s now were more defined by a list laid down in the Act itself and can only be used for about one to maximum two years, before the Secretary of State has to provide new information to attest to the continuous necessity of such a measure. The power to seize or cancel an individual’s passport was again reiterated in the Counter Terrorism Act of 2015. Now, not only the Secretary of State, but also police forces, especially those at the border, were given the power to take the travel documents and the passport if they believe that the person is leaving to join terrorist related activities. They do have to seek authorization from someone superior to them, but if they consider it to be righteous, a passport may be held for up to 14 days, and even 30 if the Court approves, before deciding if a form of punishment is to follow.73

3.3 Trends in the United Kingdom’s Approach to Counter-Terrorism

The counter-terrorism measures that have been adopted over the years by the United

Kingdom show a gradual expansion in the powers available to combat terrorism. Although, some measures have seen slight restrictions, such as the TPIM’s following the ‘control orders’, the United Kingdom has gained more far-reaching jurisdiction within counter-terrorism. The boundaries to the policies on nationality deprivation, as well as passport seizure have seen

71 Ibid., 6. 72 Ibid., 6. 73 Blackbourn and Walker, “Interdiction and indoctrination,” 851-852.

- 27 - serious stretching in the last decade, with even the possibility of statelessness on the table.

The United Kingdom’s choice to prioritize security over the protection of certain civil or human rights is said to be an ‘instrumentalist’ approach to counter-terrorism. The fight against terrorism seemingly tends to take a level of precedence over the rights people have, with an encroachment upon the fundamental right to nationality and freedom of movement deemed necessary to safeguard society from the terrorist threat. Also noticeable is the role the Secretary of State and their Home Department play as the main executive of these, at least the mentioned, counter-terrorism powers. They are allowed, often without approval of a court first, to implement these measures if they ‘reasonably’ think it is the right way to go, raising questions of justice and the right to a fair trial. Besides this, the United Kingdom also seems to emphasize the importance of cooperation between different units and organizations throughout their counter-terrorism measures, highlighted in their CONTEST strategy. They see this as a necessary step to effectively fight terrorism.74

74 Raffaello Pantucci, “A contest to democracy? How the UK has responded to the current terrorist threat,” Democratization 17, no.2 (July 2009): 251-271.

- 28 - 4.0 Chapter IV: The United Kingdom’s Counter-Terrorism Measures, Nationality

Deprivation and Proportionality

4.1 The United Kingdom’s policy on Nationality Deprivation: Is it Proportional?

Now leaves the question of proportionality. Following the framework set out in

Chapter II, the United Kingdom’s counter-terrorism policy on nationality deprivation will be subject to an analysis of its (1) proper purpose; (2) rational connection between the measure and purpose; (3) necessity in that it is the least restrictive measure available; and, lastly, its

(4) proportionality stricto sensu.

(1) Proper Purpose

The United Kingdom has often cited the deprivation of nationality as a necessary step to protect national security from the threat of terrorism. Part of the ‘war on terror’, the

United Kingdom has seen “securitization” of the British democracy, their way of life, as a legitimate basis for far-reaching counter-terrorism measures, such as the nationality deprivation of naturalized, mono-nationals, for years, especially since the 9/11 attacks in the

United States and those in the United Kingdom itself.75 In a speech delivered at a counter- terrorism conference in 2015, Therese May, then Home Secretary, emphasized the threat terrorism has posed and that this “will require a comprehensive and coherent response” of which the removal of “citizenship from naturalized Britons who pose a threat to our country” is a part.76 Additionally, ‘CONTEST’s aim mentioned in the Executive Summary and the

75 Sandra Mantu, “Citizenship in times of terror: citizenship deprivation in the UK,” Paper prepared for ECPR Standing Groups, April 2, 2015 https://ecpr.eu/Filestore/PaperProposal/2ab106b5-1c2a-4be4-9313- 8d858890cb39.pdf 76 Speech by Theresa May, Home Secretary, “Home Secretary: We must work together to defeat terrorism,” June 18, 2015 https://www.gov.uk/government/speeches/home-secretary-we-must-work-together-to-defeat- terrorism

- 29 - Foreword by the then Home Secretary Sajid Javid reiterate the need to “protect the public” and their ability to “go about their lives freely and with confidence” from terrorism.77

Terrorism appears to fall under the criteria of ‘conducive to the public good’ and ‘seriously prejudicial to the vital interests’ the United Kingdom has put in place as reasons for nationality deprivation. These seemingly address the protection of the United Kingdom and all it stands for, something which terrorism tends to attack. Security and protection is often accepted as

‘proper purpose’ by several different sources, including international organizations, scholars and experts alike.78 As mentioned prior in Chapter II, the 2013 report by the Human Rights

Council considers ‘acts seriously prejudicial to the vital interests of the State’ as an argument for a limitation to the right to nationality. Similar to this is the Convention on the Reduction of Statelessness 1961, which the United Kingdom has claimed their restrictive policy to be in line with. Considering this, it appears that the United Kingdom meets the ‘proper purpose’ at this stage, however, the question that arises is whether the stripping of one’s citizenship actually works to protect the British society from the threat of terrorism. This will be further discussed below.

Besides the security argument, the United Kingdom has also mentioned loyalty of their citizens in connection to their policy on nationality deprivation. Theresa May and the Home

Office during her time as Secretary of State are known for saying that “citizenship is a privilege, not a right,” ultimately tying the right to a nationality to a set of social rules that need to be met.79 In 2015, the Counter Extremism Strategy was released. Here, it was discussed how the stripping of citizenship should come to include ‘values’ on democracy and

77 HMO, CONTEST, 5-7. 78 Jaghai, “Citizenship Deprivation.” 79 ITV News, “Home Office: ‘British Citizenship is a privilege, not a right,” December 22, 2013 https://www.itv.com/news/update/2013-12-22/home-office-british-citizenship-is-a-privilege-not-a-right/

- 30 - liberty, and to target those who reject such notions. The 2013 report by the Human Rights

Council does connect disloyalty towards their nationality with the reason of ‘acts seriously prejudicial to the vital interests of the State,’ even saying that “States may provide for the deprivation of nationality, be it as a form of punishment or as a response to the apparently broken bond of allegiance.”80 It, however, does so hesitantly, urging States to make confined use of this broad interpretation. Due to the framework of loyalty seeming to be up in the air, this purpose hardly seems to be a ‘proper purpose.’ Despite its connection to the ‘security’ of the State, it raises questions of legal certainty and could allow the United Kingdom to target an even bigger group of ‘foreigners’, making their claim to citizenship tied to their ‘value of

Britishness,’81 in contrast to the British born, mono-national. Having this level of controversy at this stage means that the principle of proportionality might not be met. The following three stages will, therefore, focus on the first ‘proper purpose’ of security, as this seems to be a generally more used by the United Kingdom as an argument for their policy.

(2) Rational Connection

The United Kingdom connects the policy of denationalization of those suspected to be or involved with terrorism to the purpose of “securitization” or protection of the democratic society. In their counter-terrorism strategy ‘CONTEST’, nationality deprivation is mentioned under the ‘P’ of Pursue, acknowledging the policies part in fighting terrorism. At face value, the stripping of citizenship seems to be done in fulfillment of the ‘proper purpose’ of security.

If someone loses their British nationality, they can no longer freely remain in the United

80 UN Human Rights Council, A/HRC/25/28, para. 12. 81 Sangeetha Pillai and George Williams, “Twenty-First Century Banishment: Citizenship Stripping in Common Law Nations,” International and Comparative Law Quarterly 66, no.3 (July 2017): 521-555 https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/twentyfirst- century-banishment-citizenship-stripping-in-common-law- nations/F9B6D2F963EC73BD522A5EEE22493816/core-reader

- 31 - Kingdom and will be deported back to or have to stay in the country of their second nationality, or the country of their nationality prior to naturalization. Considering this, it would appear that they no longer pose a threat to the security of the United Kingdom, as they have no rights and no way of reaching the country without permission. It is, however, questionable whether this is true in practice. In their article All Citizens Are Created Equal, but

Some are More Equal Than Others, Van Waas and Sanghai discuss the lack of evidence to support the idea that the stripping of nationality would actually benefit the fight against terrorism or the protection of the United Kingdom.82 They point out that denationalization could even be disadvantageous to the United Kingdom, losing sight of those who threaten the security of the country. The loss of citizenship might also not stop those individuals from entering the United Kingdom, as they can find other ways to do so. Depriving a person of their nationality would also leave other countries, often with weaker legal systems, to deal with them, putting a significant burden on them.83 This problematic characteristic was reiterated by a 2016 report of the Independent Reviewer of Terrorism Legislation, an impartial position appointed every three years by the Secretary of State. David Anderson, now Lord Anderson, acknowledges that similar policies in other countries have become known to be an

“ineffective and counter-productive weapon against terrorism.”84 Although, the power to deprive a naturalized mono national had not been used at the time of the report, Anderson raises concerns about the discourse of seeing terrorism solely as a foreign threat, despite the

United Kingdom’s capacity to deal with it themselves. No longer observed, those individuals can do damage that the United Kingdom will not be able to know about. Individuals left

82 Jaghai and van Waas, “All Citizens are Created Equal,” 425. 83Kent Roach and Craig Forcese, “Why Stripping citizenship is a weak tool to fight terrorism,” The Globe and Mail, March 3, 2016 https://www.theglobeandmail.com/opinion/why-stripping-citizenship-is-a-weak-tool-to- fight-terrorism/article29003409/ 84 Anderson, “First Report,” para. 3.6

- 32 - without a British nationality also run the risk of heightened exposure to such terrorist organizations.85 Furthermore, the use of other measures for different ‘types’ of nationalities also throws into question whether the deprivation of nationality is connected to the purpose.

Despite having committed or being suspected of similar acts of terrorism, dual nationals and naturalized mono-nationals are unfairly targeted by this policy, while British-born mono nationals are not.86 If one considers all this, it is actually relatively questionable whether the national policy is actually connected to the fulfillment of the purpose.

(3) Necessary and Least Restrictive Measure

Third, in order for the United Kingdom’s policy on nationality deprivation to be proportional, it needs to be necessary and, following this, the least intrusive measure available to them. As discussed prior, the United Kingdom has a different set of measures for different ‘types’ of nationalities, with dual nationals and naturalized mono nationals being susceptible to nationality deprivation, while British-born mono nationals are not. They are subject to other counter-terrorism measures, such as a Temporary Exclusion Order, criminal proceedings or the confiscation of their passport. The United Kingdom, thus, has other ways to punish or restrict those involved with or suspected of terrorism instead of the far-reaching measure of citizenship stripping, which severely encroaches upon their fundamental rights, and especially leaves naturalized mono-nationals vulnerable to statelessness.

85 Zedner, “Citizenship Deprivation,” 240. 86 Jaghai and van Waas, “All Citizens are Created Equal,” 425.

- 33 - (4) Proportionality Stricto Sensu

The ‘proportionality stricto sensu’, in the case of the United Kingdom’s policy on nationality deprivation, weighs up the issue of national security on the one hand, and the removal of citizenship of the individual on the other. Besides the criteria of a ‘proper purpose’ or legitimate aim, the HRC 2013 report and the ECJ in the Rottmann case, discussed in Chapter

II, seem to put emphasis on ‘proportionality stricto sensu.’ It, therefore, appears to be influential to the decision whether the policy can be considered proportional. This stage of the proportionality test, however, is difficult to fully consider without a case to apply it to. In some instances, the interest of the State to protect the country from terrorism might go above the individual’s claim to fundamental rights, and, thus, nationality deprivation might be justified. Generally speaking, however, the limitation of the basic human right to nationality, a right to which the protection of other rights, such as the freedom of expression, are tied to and the vulnerability of statelessness seem to tip the balance in favour of the individual. Furthermore, when considering the Rottmann case, the ability to access another nationality is also of importance to ‘proportionality stricto sensu’. As, for example, Shamima

Begum’s situation shows is that, although, the Home secretary believes her to have another nationality, she effectively does not. It is, therefore, questionable whether the Home

Secretary has given enough thought to meet this part of ‘proportionality stricto sensu.’

Moreover, the availability of less restrictive measures, which deal with the threat in a similar manner, but are not as restrictive as nationality deprivation, diminishes the weight the social interest the State holds.

Following this test, it is highly debatable whether the policy of nationality deprivation meets the principle of proportionality. Yes, ‘proportionality stricto sensu’ cannot definitively

- 34 - said to be proportional or not without an individual case and national security appears to be a ‘proper purpose’, however, the policy does not seem to be connected, but rather counter- productive to the fulfillment of the purpose, and there are less restrictive measures in the form of criminal sanctions, or temporary exclusion orders, available.

4.1.1 Proportionality and the Right to Nationality: A Lack of Response by the Court’s to the

United Kingdom’s Counter-Terrorism on Nationality Deprivation.

Although, the United Kingdom’s policy on nationality deprivation, especially since the introduction of the 2014 powers, has been met with some resistance both domestically and internationally, not much guidance on whether it meets the principle of proportionality has been provided for.87 Several cases have been subject to Court consideration, but a full proportionality test on the whole of the United Kingdom’s powers has not effectively been performed as of yet. Courts appear to be cautious to judge on terrorism and the counter- terrorism measures used to combat it.88 In Pham v. the Secretary of State for Home

Department, the Supreme Court considered the principle of proportionality as it stands under

EU law. Pham, born in Vietnam, was deprived of his British nationality, which he had acquired in 1995, by the Secretary of State in 2011 on the grounds of him being a suspected terrorist.

After hearing of this, Pham decided to make an appeal to the Special Immigration Appeals

Commission (SIAC), arguing for the issue of statelessness, which Pham said he would be, because the Vietnamese government did not want to consider him a national anymore. Even though, there was no ‘proportionality test’ of the case at hand, Lord Mance expressed the removal of one’s nationality to be a “radical step, on any view, particularly if the person

87 Mantu, “Citizenship in times of terror.” 88 Devyani Prabhat, “Political Context and Meaning of British Citizenship: Cancellation as a National Security Measure,” Law Culture and the Humanities (2016) https://research- information.bristol.ac.uk/files/102519926/rtfDefinitelyFinaldeprivationmay26submission.pdf

- 35 - affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there,” agreed upon by three other Lords.89 This implies the negative outlook, at least part of, the Supreme Court has on the nationality deprivation power, and especially the Immigration Act of 2014. Nevertheless, the Supreme Court thought

Pham to possess his Vietnam nationality at the time the Home Secretary decided to strip him of his British nationality.90 After the case had been re-admitted to the Special Immigration

Appeals Commission by the Supreme Court, the Court of Appeal made another comment on the arbitrary removal of nationality in 2018, which arguably stands in contrast to that of the

Supreme Court. In 2018, the Court of Appeal decided that, although proportionality should be applied to those cases of arbitrary deprivation of nationality, the decision in Pham’s case

“was not arbitrary given the seriousness of the allegations and the appellants admissions of guilt.”91 Despite this ruling being applicable to the individual case of Pham only, it has shed a light on what one of the highest courts in the United Kingdom thinks of the denationalization policy. They, arguably, see this counter-terrorism measure as a legitimate and necessary step to fight terrorism and, consequently, think it to be proportional.92

4.2 Nationality Deprivation and Proportionality: A Distinct Counter-Terrorism Measure

Not all counter-terrorism measures have the same impact on an individual, which is something that needs to be considered when looking at the principle of proportionality. The

89 Pham v. Secretary of State for the Home Department [2015] United Kingdom Supreme Court 19, para. 98. 90 Simon Cox, “Case Watch: UK Supreme Court Backs Government Rejection of Statelessness Claim,” Open Society Justice Initiative, March 25, 2015 https://www.justiceinitiative.org/voices/case-watch-uk-supreme- court-backs-government-rejection-statelessness-claim 91 Gherson Immigration, “No Need to Show Current Risk of Harm for Citizenship Deprivation – Pham v. The Secretary of State for the Home Department in the Court of Appeal 2018,” September 26, 2018 https://www.gherson.com/blog/current-risk-citizenship-deprivation 92 Pham v. the Secretary of State for the Home Department [2018] EWCA Civ 2064. https://www.casemine.com/judgement/uk/5ba8d0e62c94e0449bdf2a4e

- 36 - deprivation of nationality appears to be a harsher, longer-lasting measure than the discussed temporary exclusion order, or the confiscation of a passport. If the Secretary of State decides to strip an individual of their nationality, they will lose all rights they previously had in the

United Kingdom, and because the United Kingdom is currently still a part of the European

Union, also their membership as a EU citizen. Due to the possibility to also deprive a naturalized mono-citizen of their nationality, statelessness has become more likely. If someone is stateless, no country is responsible for the protection of their human rights, affecting the most basic of their rights, such as the right to education, health or the prospect of work. A TEO or the confiscation of a passport do not have the same level of repercussion upon an individual’s livelihood. For example, a TEO is a measure that facilitates the return of an individual thought to be involved with terrorism via a ‘permit to return’, rather than a measure of exclusion, as the name suggests.93 Yes, the freedom of movement is severely restricted by either, but this does not hold the same weight of possibly losing all of the protection of the rights that come with having a nationality. Relating to this, the denationalization of a person is a permanent measure, which can only be undone via Court or if the Secretary of State decides to give the nationality back, whereas the other two appear to be of a temporary nature. When the Secretary of State deprives someone of their nationality, this is not done for a maximum of two years, like the TEO, but will forever take its effect. Unlike under a TEO or when a passport is seized, a person stripped of their British citizenship will not retain their rights at one point or another, rather they will lose these rights indefinitely. In both TEO and nationality deprivation, the Home Secretary has the power to order for a measure to take effect. Contrastingly, however, a TEO, in most cases, needs a

93 Genevieve Lennon, Colin King, and Carole McCartney, Counter-terrorism, Constitutionalism and Miscarriages of Justice (Bloomsbury Publishing, 2018), 42.

- 37 - Court to allow for it to go ahead, whereas nationality deprivation is at the discretion of

Secretary of State. The confiscation of a passport is slightly different to the other two, as the border police also has the possibility to take one’s passport if it suspects the person to leave and join terrorist activities abroad. This is, nevertheless, like a TEO, bound by certain restrictions, such as Court approval if the initial 14-day hold is exceeded. Again, this shows how nationality deprivation is treated as a different, distinctive measure to, at least these two, other counter-terrorism tools.

4.3 Proportionality, Counter-Terrorism and its Challenges

As this Chapter has shown, proportionality, especially when considering nationality deprivation and the other-counter terrorism measures, does not come without any challenges. In general, Courts and other institutions appear to be hesitant to judge on the details of proportionality and counter-terrorism measures. National security, or

“securitization” of the United Kingdom, has seemingly allowed for the growing development of counter-terrorism measures without much scrutiny put to it. Noticeably, domestic courts, and even the ECtHR, have stated that the government of the United Kingdom enjoys a great level of discretion, or ‘wide margin of appreciation’ when it comes to terrorism and the necessary legislation to counter it. 94 Proportionality in cases of nationality deprivation is also in need of attention. Although, the Courts, the Independent Reviewer and other international institutions such as HRC have repeatedly acknowledged that such a measure needs to be proportionate, they have failed to apply this to the United Kingdom’s policy. Consequently,

94 Christopher Michaelsen, “Chapter 7. The Proportionality Principle in the Context of Anti-Terrorism Laws: AN Inquiry into the Boundaries between Human Rights Law and Public Policy,” in Fresh Perspectives on the ‘War on Terror’, ed. Miriam Gani and Penelope Matthew, (ANU E Press, 2008): 109-126 http://press- files.anu.edu.au/downloads/press/p54191/mobile/ch07.html

- 38 - there has been little example as to how the ‘four-stages’ need to exactly be assessed. It is especially hard to determine when the social importance of the deprivation of nationality outweighs the interests of the individual. Is the threat to national security significant enough to override basic human rights, especially if it leads to statelessness? Even though, the Appeal

Court in Pham has said that the terrorism allegations made against Pham were serious, they did not give any indication as to how to approach this issue in general. ‘Proportionality stricto sensu’ should, however, put emphasis on the invasive consequences of nationality deprivation, a consideration that currently seems to be lacking. The denationalization policy also raises questions as to whether a ‘proportionality test’ is the right way to assess whether one can be stripped of their citizenship or not. Considering the impact losing one’s nationality has on a person, should it ever be allowed to deprive anyone of their nationality, apart from maybe fraud? Critics of the principle of proportionality see it as a subjective judgement of value, doing the impossible of putting one interest above the other.95 They also recognize that, consequently, a proportionality assessment will take different shapes depending upon who is the judge.96 Nevertheless, the principle of proportionality appears to be a useful tool to ensure that states do not abuse their human rights obligations. It seems unlikely that the

United Kingdom will entirely yield their power to deprive an individual of their nationality soon, especially when they consider the threat of terrorism to be significant. The principle can, thus, help to, at least, safeguard individuals from arbitrary deprivation of nationality.

95 Valentina Vade, “Chapter 10: A history of success?” in The Reform of International Economic Governance, ed. Paolo Davide Farah (2018) http://www.glawcal.org.uk/glawcal-comments/arguments-against-the- application-of-the-principle-of-proportionality 96 Francisco Urbina, “A Critique of Proportionality,” American Journal of Jurisprudence 57 (2012): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2173690

- 39 - 5.0 Chapter V: Discussion and Conclusion

5.1 The United Kingdom, Nationality Deprivation and Proportionality: A Case for Concern

Following the principle of proportionality, the legitimacy of the United Kingdom’s policy on nationality deprivation stands to be challenged. Although, the protection of national security is generally recognized to be a legitimate aim for the limitation of a right, there are several areas where proportionality is highly debatable. Nationality deprivation as a counter- terrorism measure is said by the United Kingdom to aid the fight against terrorism, but the opposite appears to be true. Individuals who are stripped of their nationality become an invisible danger to the United Kingdom, as they can no longer be monitored like they could if they were still in Britain. It also leaves them more vulnerable to the recruitment of terrorist organizations and the countries they often end up in are less capable of dealing with the threat they pose. Furthermore, the United Kingdom has less restrictive measures available in their counter-terrorism tool kit. The nationality deprivation policy applies to dual nationals and naturalized mono nationals of who it is reasonably believed that they can access another nationality, but cannot be applied to British born mono nationals, which would provide for a

‘barrier’ to statelessness. The latter is subjected to other counter-terrorism measures, such as a TEO and confiscation of their passport, effectively creating sub-categories in citizenship.

The stripping of someone’s citizenship has a greater, longer-lasting impact than the other two counter-terrorism measures, especially since the likeliness of statelessness has increased, and, thus, appears to be more restrictive than other available counter-terrorism measures.

Another point of contention is the weighing up of the social versus the individual interest.

Despite the inability to definitively say whether the policy on nationality deprivation complies with this characteristic of proportionality without a specific case, it is questionable whether the interest of national security would outweigh such an encroachment upon an individual’s

- 40 - human rights, especially if it leads to statelessness. To understand proportionality and nationality deprivation further, it was situated within other counter-terrorism measures the

United Kingdom uses. This uncovered the distinctive place the policy on citizenship stripping holds, a matter that needs to be taken into account when considering proportionality. Not only is the depriving of someone’s nationality permanent, it also restricts the enjoyment of the United Kingdom’s protection of their rights. Other counter-terrorism measures are often temporary and, although, the right to freedom of movement is limited, for example, this appears to a better way to deal with the threat of terrorism in a similar manner, but less invasive of an individual’s basic human rights. Considering this, the frequent usage of this policy as a counter-terrorism measure, thus, presents a case for concern, especially to international human rights law.

Nationality deprivation in the United Kingdom is a counter-terrorism tool that is in much need of closer scrutiny. The lack of attention in general, but also the silence on the principle of proportionality is worrisome. Courts unwillingness to judge on those measures aimed at the protection of national security has proven to be an obstacle to a thorough analysis of the legitimacy of the policy on nationality deprivation. If they do give comment on the policy of nationality deprivation, it has appeared to be in contrast to each other, not allowing for one concise judiciary answer to the legitimacy of these policies.

5.2 The United Kingdom’s Policy on Nationality Deprivation: General Observations

5.2.1 Nationality Deprivation, Terrorism and Statelessness: A Warning for the Future

As of now, the United Kingdom is rather unique in their approach to the deprivation of nationality as a counter-terrorism measure. Whereas most other Western countries still have a strict prohibition on statelessness embedded within their policies and do, thus, not

- 41 - allow for the denationalization of a naturalized mono national at all, the United Kingdom has removed parts of this ‘barrier’, if the Secretary of State ‘reasonably suspects that the individual is, or has been involved in terrorism-related activity outside the United Kingdom.’

This standard is not statelessness-proof, as the case of Shamima Begum has illustrated.

Although, the Secretary of State thought her to have access to the Bangladeshi nationality, the opposite was true and the order to deprive her of her nationality would, consequently, leave her stateless. The case of the United Kingdom has shown that such far-reaching and broad powers, where statelessness is no longer an obstruction to the expansion of the nationality deprivation policy, are able to avoid much scrutiny. This uncovers an alarming truth for the protection of basic human rights, especially now countries like Australia are starting to enact similar legislation to the United Kingdom. The United Kingdom’s disregard of their international obligations, should, therefore, serve as a warning to domestic and international organizations, one which needs to be addressed before other policies will follow suit.

The United Kingdom’s expansion of powers has also changed the way citizenship is to be understood. The differential treatment of dual and mono nationals within the nationality deprivation policies of many Western countries has already been identified as discriminatory by, for example, the Amicus Brief on the Dutch policy. Where citizenship traditionally represented the bond of protection of a state and its nationals, “legislative developments have increasingly cast their citizenship as a conditional privilege, rather than as an inalienable status.”97 Such inequality in treatment has effectively created a hierarchy amongst citizens, disproportionately targeting ‘foreign’ nationals, while the rights of British born, mono

97 Sangeetha and Williams, “Twenty-first Century Banishment.”

- 42 - nationals are left unscathed. In the case of the United Kingdom, citizens are no longer protected from the risk of statelessness, making these individuals extra vulnerable to the uncertainty of their citizenship.

5.2.2 Nationality Deprivation in Europe: An Ineffective Tool to Fight Terrorism

Looking at the United Kingdom’s policy on nationality deprivation has brought to light the problematic characteristic of ineffectiveness of nationality deprivation as a counter- terrorism measure. David Anderson, then the Independent Reviewer of Terrorism Legislation, noticed in his report that the deprivation of an individual’s nationality appears to be rather counter-productive to the protection of national security. Out-sourcing the threat diminishes the possibility for ‘check and control’ of these individuals, without effectively barring them from doing damage to the United Kingdom. As the former Canadian Minister of Immigration,

Refugees and Citizenship rightly said: “We do have a criminal justice system. We do have courts. We do have prisons where those convicted of crimes are sent. And that is the way in which we deal with this… The place for a terrorist is in prison, not at the airport.”98 Even if the denationalization policy would survive the principle of proportionality, the question remains whether it would be the right tool to counter terrorism with.

5.3 Future Research: Areas that Warrant Further Attention

The principle of proportionality is not the only area within the United Kingdom’s nationality deprivation policy that warrants more attention. Only shortly discussed in Chapter

III and IV, the right to a fair trial appears to be questionable within the United Kingdom’s

98 Anne McMillan, “A punishment more primitive than torture,” International Bar Association, August 7, 2018 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=0973CA3C-1549-4489-B0F4-0DC418085C28

- 43 - policy on nationality deprivation. According to the Office of the United Nations High

Commissioner for Human Rights, due process is realized when “measures [are] taken to ensure a transparent listing and de-listing process, based on clear criteria, and with an appropriate, explicit and uniformly applied standard of evidence, as well as an effective, accessible and independent mechanism of review.”99 Whenever an individual is deprived of their nationality by the Secretary of State, they have the ability to lodge an appeal with the

Special Immigration Appeals Commission (SIAC) within 28 days of the order. Proceedings before SIAC, however, often operate via so-called ‘closed-material proceedings’, where the evidence is kept secret.100 Whenever information is provided, it will only contain that which is deemed not sensitive to the security of the state.101102 If an individual does decide to appeal their order, they will be given a ‘special advocate’, who will represent them on their behalf in front of the Commission. This advocate, however, is barred from disclosing any of the secret evidence discussed during a proceeding, not even to the defendant.103 Considering that individuals are often abroad when they are stripped of their nationality,104 appeal is made more difficult, with limited time, resources and knowledge about the system available to them. The latter raises another concern about the Secretary of State’s intentions to deprive an individual of their nationality when they are abroad, possibly motivated by the difficulty to successively appeal an order abroad.105

99 Office of the UN High Commissioner for Human Rights, “Human Rights,” 39. 100 Zedner, “Citizenship Deprivation,” 227. 101 Ibid. 102 Mantu, “Citizenship Deprivation in the United Kingdom.” 103 CAGE, “Citizenship Deprivations: What you need to know,” March 14, 2019 https://www.cage.ngo/citizenship-deprivations-what-you-need-to-know 104 Sangeetha and Williams, “Twenty-first Century Banishment.” 105 Chris Woods, “When Being Born British Isn’t Enough,” The Bureau of Investigative Journalism, February 27, 2013 https://www.thebureauinvestigates.com/stories/2013-02-27/when-being-born-british-isnt-enough

- 44 - Closely linked to the problematic characteristics of the SIAC proceedings is the secrecy surrounding a nationality deprivation order itself. The Home Secretary acts on information that is often not available to the public, again under the same pretense of it being sensitive to the security of the nation. It is therefore hard to discern whether the Secretary of State acts on proper evidence, or if it is based on mere suspicion, especially since the individuals often have not been convicted of any crime yet when they lose their nationality.

The apparent vagueness of the phrases ‘conducive to the public good’ and ‘seriously prejudicial to the vital interests’ used to deprive an individual of their nationality can come to include cases beyond those of terrorism, the latter already questionable in itself. Also known as the Rochdale gang, the denationalization case of Ahmed and Others involved British-

Pakistani dual nationals who had been sentenced for their participation in the sex trafficking of children.106 When the Home Secretary decided to strip them of their nationality, the phrases came to include criminal convictions outside those of national security as a reason for denationalization. Not diminishing the seriousness of these crimes, the stripping of nationality in the case of Ahmed and others can set a dangerous precedent for future citizenship removal. It becomes increasingly unclear when one is susceptible to have their nationality taken away from them, allowing the boundaries of the policy to be stretched over and over again.

Furthermore, a closer look at the other counter-terrorism measures available to the

United Kingdom could help to better understand the fight against terrorism and insofar these measures are actually necessary. To limit the scope of this thesis, it was satisfactory to merely look at the counter-terrorism measures of TEOs and passport confiscation in relation to

106 Colin, “How is the government using its increased powers.”

- 45 - nationality deprivation. This enabled a better grasp on the distinctive place nationality deprivation holds within the United Kingdom’s counter-terrorism strategy and why this specific policy cannot go without scrutiny. Future research would benefit from looking at the

United Kingdom’s counter-terrorism strategy as a whole, even the two counter-terrorism measures looked at previously, to really be able to assess their necessity and legitimacy. As is rightly argued, when counter-terrorism becomes a “permanent mode of governance” in the

United Kingdom, and elsewhere, and regular legislation, judiciary approaches and human rights are often bypassed, it is critical to closely consider these measures to prevent abuse and ensure state accountability.107

To conclude, the United Kingdom’s nationality deprivation policy appears to be an invasive and unnecessary tool to combat terrorism. It encroaches upon an individual’s human rights and makes them into ‘second-class’ citizens, despite the ineffectiveness and the availability of other, lesser counter-terrorism measures that deal with the threat in a similar manner. If policies like that of the United Kingdom continue to exist, the protection of fundamental rights might see a further decline. Values like freedom and democracy that many Western states claim to hold dear will then no longer only be under attack by terrorism, but will have a new enemy: the West itself.

107 Fiona de Londras, “Counter-terrorism: How do we ensure the state is accountable?” The University of Birmingham, accessed August 3, 2019 https://www.birmingham.ac.uk/research/quest/towards-a-better- society/counter-terrorism-state.aspx

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