United Kingdom’s Legislation on Citizenship Deprivation Measures and its Compatibility with Article 6 and 8 of the ECHR. LLM Thesis Public International Law Renée van den Elsen Student number: 10070850 Supervisor: Dr. Rosanne van Alebeek Second reader: Prof. Yvonne Donders Submitted 15 July 2016 Abstract The recent surge in terror threats on European soil, mainly posed by foreign fighters, has led to an increase in counter-terrorism legislation and policies. The United Kingdom is a noteworthy example of a state that introduced very extensive legislation. It has introduced legislation that allows the Secretary of State to deprive anyone suspected of being involved in terrorism of his or her UK citizenship. This thesis tries to answer whether UK’s legislation on citizenship deprivation measures is compatible with Article 6 and 8 of the ECHR. The British Nationality Act 1981, as amended in 2002, 2006 and 2014, is the statutory legal basis for the deprivation measures. This thesis assesses the amended British Nationality Act 1981 in light of the relevant criteria developed in ECHR jurisprudence. As a general rule Article 6 is not applicable to nationality decisions, however this thesis will show that this is different for cases concerning deprivation measures. When the deprivation order is based on closed material, the procedure will take place before the Special Immigration and Appeals Commission (SIAC). This thesis shows that many elements of the SIAC procedure conflict with the requirements of Article 6 ECHR. Furthermore, since nationality is an intrinsic part of someone’s social identity, which is a part of a person’s private life, the legislation raises an issue under Article 8 ECHR. It is argued that there is a less far-reaching measure available to protect the national security and public safety of the UK. Henceforth, the legislation that provides for deprivation measures cannot considered to be necessary in a democratic society and consequently constitutes a violation of Article 8 ECHR. Lastly, while it is easy to understand the motivation behind the extensive legislation, this assessment illustrates that one must be wary that the importance of protecting human rights is not overlooked when making such extensive legislation. 2 TABLE OF CONTENTS I. Introduction 4 1. Legal Problem and Research Question 7 II. Legal Framework 8 1. Article 6 ECHR 8 1.1 Applicability of Article 6 ECHR 8 1.2 Compliance with Article 6 ECHR 12 2. Article 8 ECHR 13 3. Methodological Limitations 13 4. Definitions 14 4.1 Citizenship & Nationality 14 4.2 Loss & Deprivation 15 III. UK’s Legislation on Citizenship Deprivation over the Years 15 1. History of UK’s Nationality Legislation 15 2. Current Nationality Legislation in the UK 16 2.1 The 1981 British Nationality Act 16 2.2 The 2002 Nationality, Immigration and Asylum Act 16 2.3 The 2006 Immigration, Asylum and Nationality Act 18 2.4 The 2014 Immigration Act 18 IV. The Measure of Deprivation of Nationality in Light of Articles 6 and 8 ECHR 1. Legislation on Deprivation of Citizenship Measures 20 2. Compatibility with Article 6 ECHR 21 3. Compatibility with Article 8 ECHR 27 3.1 Issue of Discrimination under Article 14 ECHR 32 V. Conclusion 33 Bibliography 35 3 I. Introduction In recent times, terrorist attacks on European soil have dominated the news. The world has seen the emergence of global terrorism and states all over the world have reacted with widespread and far reaching security and counter terrorism policies. The terrorist organisation ‘Islamic State’1 claims to be responsible for many of these attacks resulting in the death of innocent civilians. Authorities in Europe have expressed strong concerns about this development and are currently engaged in finding the best solution to this international security problem, by enhancing their intelligence agency capabilities and authorizing the associated institutional and legal reforms needed to support their fight against terrorism. Due to the surge in terrorism, attention has increased for the threat posed by nationals who travel abroad to join IS, Al-Nusra or other terrorist movements as a so-called ‘foreign fighter’2, and consequently, after having received training, instructions or both, can return to their home country. The phenomenon of foreign fighters is hardly new or confined to the civil war in Syria alone.3 The number of individuals that identified with the jihadist mission and have been involved as volunteers between 1960 and 2000 in various conflicts is estimated to lie somewhere between 10,000 and 30,000.4 However, the number of foreign fighters that travelled to Iraq and Syria since the beginning of the conflict in 2011 is estimated between 27,000 and 31,000.5 Among those who travelled to Iraq and Syria since 2011, more than 1 Hereinafter ‘IS’ 2 There exists no clear-cut legal definition of ‘foreign fighter’, but in this thesis the definition formulated by S. Kraehenmann will be adopted: ‘A foreign fighter is an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship’ see: S Kraehenmann, ‘Academy Briefing No. 7: Foreign Fighters Under International Law’ (2014) Geneva Academy of International Humanitarian Law and Human Rights Briefings, p.6 available at: http://www.genevaacademy.ch/docs/publications/Briefings%20and%20In%20breifs/Foreign%20Fight ers%20Under%20International%20Law%20Briefing%20no7.pdf Moreover, from a terminological perspective the concept of foreign fighters should not be oversimplified by equating the phenomenon of a foreign fighter to ‘foreign-trained fighter’. In practice, however, it might be difficult to distinguish the two: individuals who travelled abroad with the intention to join the battlefield abroad may be recruited and trained to carry out attacks ‘at home’ without having actually participated in the combat, and vice versa. Ibid, p.6 3 Foreign fighters were also involved for example in the Spanish Civil War in 1936, see D. Malet, ‘Why Foreign Fighters? Historical Perspective and Solution’ 53 (4) Orbis (2010) p. 97, 98. 4 T. Hegghammer, ‘The Rise of Muslim Foreign Fighters: Islam and the Globalization of Jihad’ (2011) 35 (3) International Security (first page article), 53 5 The Soufan Group, ‘Foreign Fighters, An Updated Assessment of the Flow of Foreign Fighters into Syria and Iraq’ (December 2015) available at: http://soufangroup.com/wp - content/uploads/2015/12/TSG_ForeignFightersUpdate3.pdf 4 5,000 individuals were European Union nationals.6 The average rate of returnees to Western countries is around 20-30%.7 The concerns related to foreign fighters are twofold.8 First, it is feared that their participation prolongs and exacerbates the original conflict and that they will engage in acts of barbarian nature abroad. The second concern, which is much higher on the agenda of policymakers in Europe, is the fear of the ‘blowback effect’. The ‘blowback effect’ refers to the threat that foreign fighters pose when they return to their home countries or to a third country after concluding their time abroad. Hegghammer underlines that the majority of them prefers to fight abroad and that only a few have the desire to return and perpetrate acts of a terrorist nature in their home country.9 Yet, as recent history has proven, the acts of a small number of returned fighters can have catastrophic consequences. A significant number of violent incidents that occurred within Western Europe since 2011 are associated with returned jihadist foreign fighters.10 Most well-known examples are the deadly attacks in a Jewish Museum in Brussels, which were perpetrated by a returned foreign fighter from Syria, the Charlie Hebdo attack of which one of the perpetrators was trained in Yemen by Al Qaeda and the Paris attacks in November 2015, multiple perpetrators of these attacks spent time in Syria or were in any other way associated with the Islamic State in Syria.11 These terrible incidents have made it clear to policymakers and legislators that the risk of the ‘blowback effect’ is not an abstract one, and needs an urgent and adequate response. The overarching international legal response to the recent increased terrorism threat and specifically the foreign fighters phenomenon was the United Nations Security Council Resolution 2178 adopted under Chapter VII of the UN Charter. Paragraph 6 of that Resolution recalls that: 6 Of which almost 3,700 foreign fighters come from just four countries: France (1,700), United Kingdom (760), Germany (760) and Belgium (470). 7 The Soufan Group, p. 4 8 In Zürich Center for Security Studies, ‘Foreign Fighters: An Overview of Responses in Eleven Countries’ (2014) p. 4. Available at: http://www.css.ethz.ch/content/dam/ethz/special-interest/gess/cis/center- for-securities-studies/pdfs/Foreign_Fighters_2014.pdf 9 T. Hegghammer, ‘Should I Stay or Should I Go? Explaining Variation in Western Jihadists, Choice Between Domestic and Foreign Fighting’ American Political Science Review (2013) p. 12 10 E. Bakker and J. de Roy van Zuijdewijn, ‘Jihadist Foreign Fighter Phenomenon in Western Europe: A Low-Probability, High-Impact Threat, International Centre for Counter-Terrorism – The Hague (October 2015), p 5-8. Available at: http://icct.nl/wp-content/uploads/2015/11/ICCT-Bakker- DeRoyvanZuijdewijn-Jihadist-Foreign-Fighter-Phenomenon-in-Western-Europe-October2015.pdf 11 International Centre for Counter-Terrorism – The Hague, The Foreign Fighters Phenomenon in