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Proportionality and the United Kingdom's 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
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