CITIZENSHIP REMOVAL RESULTING IN STATELESSNESS 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 by DAVID ANDERSON Q.C. Independent Reviewer of Terrorism Legislation APRIL 2016 CITIZENSHIP REMOVAL RESULTING IN STATELESSNESS 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 by DAVID ANDERSON Q.C. Independent Reviewer of Terrorism Legislation Presented to Parliament pursuant to section 40B(5) of the British Nationality Act 1981 April 2016 © David Anderson 2016 The text of this document (this excludes, where present, the Royal Arms and all departmental or agency logos) may be reproduced free of charge in any format or medium provided that it is reproduced accurately and not in a misleading context. The material must be acknowledged as David Anderson copyright and the document title specified. Where third party material has been identified, permission from the respective copyright holder must be sought. Any enquiries regarding this publication should be sent to the Independent Reviewer at [email protected] or by post to David Anderson Q.C. at Brick Court Chambers, 7-8 Essex Street, London WC2R 3LD. This publication is available at http://terrorismlegislationreviewer.independent.gov.uk and www.gov.uk/government/publications Print ISBN 9781474131131 Web ISBN 9781474131148 Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office ID 11041601 04/16 Printed on paper containing 75% recycled fibre content minimum. CONTENTS page 1. INTRODUCTION 3 2. EVOLUTION OF THE POWER 5 3. ISSUES RELATING TO THE POWER 11 4. CONCLUSION 17 1 2 1. INTRODUCTION The power under review 1.1. By the Immigration Act 2014 [IA 2014], Parliament conferred upon the Secretary of State the power under review: that is, a power to deprive a person of British citizenship resulting from naturalisation, in circumstances where the consequence of that order is to render the person stateless.1 1.2. The power under review may be exercised only if: (a) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, when a British citizen, “has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom” or associated territories; and (b) the Secretary of State has “reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such country or territory”.2 1.3. Outside the scope of this review are the powers that enable: (a) dual nationals to be deprived of their British citizenship (however acquired), if the Secretary of State is satisfied that deprivation is conducive to the public good;3 and (b) single or dual nationals to be deprived of citizenship resulting from registration or naturalisation when the Secretary of State is satisfied that it was obtained by means of fraud, false representation or concealment of a material fact.4 1.4. So the uniqueness of the power under review arises: (a) neither from the mere fact that deprivation of citizenship is exercisable on “conducive to the public good” grounds, (b) nor from the mere fact that its exercise makes people stateless. Rather, the distinctive nature of the power lies in its combination of those factors. 1 IA 2014 s66, inserting a new s40(4A) into the British Nationality Act 1981 [BNA 1981]. 2 This condition was inserted during the parliamentary passage of the Bill: the original intention was to confer a power to make persons stateless, regardless of their prospects of acquiring citizenship elsewhere. See 2.21(c) below. 3 BNA 1981 s40(2), as substituted by Immigration Asylum and Nationality Act 2006 ss 56(1), 62. Prior to that date, higher or additional thresholds had to be surmounted: 2.5 and 2.10 below. 4 BNA 1981 s40(3). 3 This review 1.5. The power under review is comparable to one that existed in the UK prior to April 2003 (2.4-2.8 below), but has relatively few international parallels (3.9 below). Its parliamentary passage was sufficiently controversial that provision was made for the regular review of its operation. 1.6. Reviews are to take place as follows: (a) The first review is to be completed as soon as practicable after the end of the first year in which the power was in force, and its outcome communicated to the Home Secretary in a report which she is obliged to lay before each House of Parliament.5 (b) Subsequent reviews are to be conducted, and reports produced, at three-year intervals.6 1.7. I am a barrister (Queen’s Counsel) in independent practice, serving on a part- time basis as Independent Reviewer of Terrorism Legislation.7 James Brokenshire MP, Minister of State for Immigration, invited me to conduct the first statutory review in July 2015. There is no statutory requirement that this or any subsequent review be conducted by the Independent Reviewer of Terrorism Legislation, though it is certainly necessary that any reviewer should have full security clearance. 1.8. This report is the outcome of the first statutory review. It covers the period 30 July 2014 to 29 July 2015. Operation of the power 1.9. The power under review was not exercised during the period under review, and indeed had still not been exercised as of April 2016, when this report went to print. There is therefore no concrete action to review. 1.10. It may however be useful for the evolution of the power under review to be summarised, and for some of the likely legal and practical issues concerning its operation to be identified in outline. That is done in chapters 2 and 3, before some short conclusory comments in chapter 4. 5 Immigration Act 2014 s66(3), inserting a new s40(4B) into the British Nationality Act 1981. 6 British Nationality Act 1981 s40(4B)(1)(b). 7 Previous reports, and other publications explaining the role of the Independent Reviewer, are freely available from the website https://terrorismlegislationreviewer.independent.gov.uk. The Independent Reviewer may also be followed on twitter @terrorwatchdog. 4 2. EVOLUTION OF THE POWER International treaties 2.1. Two principal international Conventions seek to avoid incidents of statelessness. They are: (a) The 1961 UN Convention on the Reduction of Statelessness [the 1961 Convention]; and (b) The Council of Europe’s 1997 European Convention on Nationality [the 1997 Convention]. 2.2. In the view of the Government, neither of those Conventions prevents the United Kingdom from using the power under review to render a person stateless. That is, in summary, because: (a) Though the United Kingdom ratified the 1961 Convention, it was entitled according to the terms of that Convention to retain a pre-existing domestic law power to deprive a person of their nationality if the person had “conducted himself in a manner seriously prejudicial to the vital interests of the state”.8 Such a power is said to have existed at the time under the British Nationality Act 1948 [BNA 1948].9 (b) Though the 1997 Convention absolutely prohibited deprivation resulting in statelessness, save where nationality had been obtained by misrepresentation or fraud,10 it was never ratified by the United Kingdom.11 2.3. Further background is set out in a recent judgment of the UK Supreme Court12 and in a useful House of Commons Library Note, the contents of which are not elaborated here.13 8 1961 Convention, Article 8(3)(a)(ii). The UK ratified the Convention in March 1966 with a reservation to Article 8. 9 BNA 1948, s20. 10 1997 Convention, Article 7(3). 11 Though the Government intended to ratify it in 2002, when UK law was changed to bring it into line with the 1997 Convention: 2.11 below. 12 Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62, paras 15-22. 13 House of Commons Library (Melanie Gower), “Deprivation of British citizenship and withdrawal of passport facilities”, Standard Note SN/HA/6820, 30 January 2015. 5 UK law and practice 1983-2003 2.4. The current basis of nationality law in the UK is the British Nationality Act 1981 [BNA 1981], in force since 1 January 1983. 2.5. For 20 years after that, BNA 1981 stated that the Secretary of State could by order deprive of citizenship a person who had acquired British citizenship14 by registration or naturalisation, if satisfied that: (a) registration or naturalisation had been obtained by fraud, false representation or concealment of material fact: s40(1); (b) the person had shown disloyalty of disaffection towards Her Majesty by act or speech: s40(3)(a); (c) the person had unlawfully traded or communicated with an enemy during any war in which Her Majesty was engaged or been engaged in or associated with any business carried out to assist an enemy in that war: s40(3)(b); or (d) the person had been sentenced in any country to twelve months or more imprisonment within five years of the date of naturalisation or registration and the person would not become stateless: s40(3)(c), s40(5)(b). In each case, the Secretary of State could deprive a person of their British citizenship only if satisfied that it was not conducive to the public good that that person should continue to be a British citizen. 2.6. These powers reflected those previously in place under the British Nationality Act 1948 [BNA 1948].