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Short CutsSadakat Kadri
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Vol. 37 No. 12 · 18 June 2015
Short Cuts

Declared un-British

Sadakat Kadri

1357 words

The removal​ of citizenship has been used as a penalty for disloyalty only rarely in Britain. A handful of spies with dual nationality were denaturalised during the Cold War, but the last case in the 20th century was in 1973. Change came slowly even after 9/11: only five people were stripped of British citizenship by Labour home secretaries, and the emblematic bogeyman of the era, the hook-handed Abu Hamza, repeatedly dodged moves to annul the Britishness he had gained through marriage. He didn’t manage to elude extradition to the United States, where he has now been jailed for life, but for what it’s worth, he remains notionally a British subject.

The obstacle to swifter executive action is the rule against statelessness. Originating after the Second World War, it reflected a belated concern about the removal of citizenship from Germany’s Jews in 1935. With the consequences of postwar decolonisation also at issue, the UK helped draft two treaties aimed at limiting the freedom countries had to abandon their residents. The rule counterbalanced a new power given to the home secretary in 2002 to withdraw citizenship from people who had ‘seriously prejudiced’ vital national interests. The criterion was broadened under the Immigration, Asylum and Nationality Act 2006, which made it possible to withdraw citizenship whenever it was ‘conducive to the public good’. Even in Abu Hamza’s case, the rule wasn’t challenged: the government argued instead that it wasn’t relevant, because the preacher remained Egyptian. The judges weren’t convinced: on the evidence they’d heard, Egypt seemed to have disowned him.

Soon after Theresa May became home secretary in May 2010, the Home Office lost its tussle with Abu Hamza, but she was determined to be more effective in her attempts to remove citizenship – and to do it more often. In her first six months in the job, she issued five revocation notices – as many as had been issued over the preceding 37 years – and the rate has accelerated steadily. By early 2013, she had moved against 32 more individuals, including at least five born in Britain. But last October, another inherited case got her in legal trouble. Hilal al-Jedda entered the UK in 1992, seeking asylum from Saddam Hussein’s Iraq. He was granted British citizenship in 2000. In 2004, he was detained by British forces in Iraq on suspicion of terrorist offences and held without charge for three years. Shortly before his release in 2007 the then Labour home secretary Jacqui Smith notified him that his citizenship was being removed. Home Office lawyers resisted his subsequent appeal by contending that he was still entitled to Iraqi nationality and could reapply for that if he wanted. The Supreme Court was unpersuaded. Al-Jedda argued that he shouldn’t be put in the position of having to ask Baghdad to take him back. The judges agreed: whatever Iraq’s response might be, it was Britain’s actions, not al-Jedda’s failure to act, that threatened him with statelessness.

None of this stopped May issuing an order to deprive al-Jedda of citizenship a second time. But the Supreme Court’s refusal to speculate on the future attitude of a foreign state spurred her to rewrite the rules. She told MPs in early 2014 that the court’s ‘disappointing’ decision had made it necessary for her to ask Parliament for further powers. The outcome was section 66 of the Immigration Act 2014, which gives the home secretary the power to reverse the granting of citizenship if a reasonable reading of another country’s laws suggests the individual could gain nationality there. The new powers could have been even more sweeping. May initially wanted the right to denaturalise British citizens without regard to statelessness. But section 66 is far-reaching enough. May had already shown herself ready to strip citizenship from dual nationals born in Britain. Now, so long as there is a chance of their gaining dual nationality, naturalised citizens will be at risk.

All the revocations that May has issued so far have survived judicial challenge, and an authoritative Supreme Court decision in March suggests that the legal wind is finally behind her back. An unusually large panel of seven judges, convened because of the importance of the case, upheld her withdrawal of citizenship from Minh Quang Pham, an alleged al-Qaida activist born in Vietnam. The judges ruled that Vietnam’s refusal to have him back imposed no obligation on the home secretary. The only fault they (implicitly) found was with officials in Hanoi, because Minh’s right to citizenship was clear under Vietnamese law, yet was being ignored.

If citizens can be forsaken on the off-chance that another country will take them on, who bears responsibility for the ones who end up with no nationality at all? The evidence so far suggests that, one way or another, it will be the US. Minh was extradited there even before the result of his appeal was known, and the Americans have taken on at least three more ex-Britons. One was spirited from East Africa to Manhattan by FBI agents, who swooped in soon after May declared him un-British. Two other Londoners didn’t get that far: after being stripped of citizenship, Bilal el-Berjawi and Mohamed Sakr were killed in Somalia by US drone strikes in early 2012.

The Home Office strongly denies that it is co-ordinating the withdrawal of citizenship with the US Justice Department and the CIA, yet all but two notices of revocation on national security grounds have been served while their subjects were abroad, and both GCHQ and a facility at RAF Marham are permanently engaged in supplying the US drone programme with real-time intelligence. It may be that some of May’s decisions on citizenship aren’t promoting the public good of this country so much as serving the American desire for British Islamists to be taken out of circulation.

It might well seem that delegating the disposal of ex-Britons to the US would be vulnerable to legal challenge – but it probably isn’t. In the same month that the home secretary asked MPs to extend her powers over citizenship, the Court of Appeal drastically reduced the judiciary’s right to oversee any contribution Britain might make to US-led military operations. In response to a Pakistani who blamed GCHQ for guiding the drone that killed his elderly father, Lord Dyson held that a respect for foreign governments precluded further investigation: otherwise, he argued, facts might be ascertained and conclusions expressed that ‘would be seen as a serious condemnation of the US by a court of this country’.

The decision pretends deference, but it’s disingenuous. Actions taken by another government often have reverberations that merit legal scrutiny here – as, indeed, the Supreme Court recognised when it noted Vietnam’s failure to observe its own citizenship laws. And Dyson’s reasoning obscures a growing recognition that even in wartime, arbitrary violence is wrong. The British military vaunts its strict rules of engagement, but if our courts have to look away whenever a friendly country is involved in the fighting, the only legal safeguards will be the ones enforcable in the courts of that country – and in the US, to take the case in point, judges have denied themselves the power to examine even the targeted killing of American citizens. Suspicious seeming ex-Brits stand no chance.

So what? Hasn’t everyone deprived of British citizenship in recent years done dubious or violent things; didn’t most of them put themselves in the wrong place at the wrong time? Perhaps, but citizenship isn’t ordinarily forfeit on proof of bad conduct, and for good reason. Many governments would like to rid themselves of unwanted residents, and those that countenance statelessness threaten to increase rather than reduce the problems associated with any who are poorly integrated. Their efforts are also wrong in principle. Citizenship, Hannah Arendt said, is ‘the right to have rights’. Citizenship isn’t a transient privilege, but an ancient status on which legal order is built. If individuals are accused of wrongdoing, they should be brought to trial, not issued a notice by the Home Office that cuts them loose and exposes them to unregulated and potentially lethal action by another country.

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Letters

Vol. 37 No. 13 · 2 July 2015

Sadakat Kadri’s article about citizenship and its withdrawal invites further reflection on two related but different concepts (LRB, 18 June). ‘Nationality’ is the link between individual and state for the purposes of international law. A ‘stateless person’ is defined in Article 1 of the Convention relating to the Status of Stateless Persons 1954 as a person ‘not considered as a national by any state under the operation of its law’. Nationality is most often possessed as a consequence of membership of the state in domestic law terms as a ‘subject’ or ‘citizen’. However, one can be deprived of one or the other without being deprived of both. The Soviet authorities in 1921-24 denationalised some two million former Russians outside the USSR who had opposed the new regime or were considered by the authorities to have done so. The challenge to the international system represented by mass denationalisation was such that the Nazis initially acted to denationalise Jews who had acquired German citizenship by naturalisation in 1933, but as regards others left them, under the Reich Citizenship Law of 15 September 1935, one of the so-called Nuremberg laws, as ‘subjects’ (nationals) while creating a new status, ‘citizen of the Reich’ from which they were excluded. This avoided deprivation of nationality, and expressly left in place the individual’s duty of fealty to the state, while removing all the civic rights identifying a citizen under domestic law. In November 1941 a further measure removed nationality from German Jews treated by then as ordinarily resident abroad – notably encompassing all those who had fled, and those transported to camps abroad. Postwar Czechoslovakia, Poland and Yugoslavia denationalised ethnic Germans; Czechoslovakia extended this to ethnic Hungarians.

International law protects against the deprivation of nationality, especially where this leads to statelessness. But it does not protect either a minimum content for nationality (there is no standard in international law to establish that at some point a state may so drain the content of its nationality that what is there is not a nationality at all) or against the deprivation of citizenship without loss of nationality.

In the recent case of Minh Quang Pham, the nationality law of Vietnam was found to be ‘deliberately ambiguous so as to permit the Vietnamese Executive to make whatever decisions it wished’. The British government did not ask the Vietnamese whether Minh was a Vietnamese national because it suspected that if the Vietnamese authorities identified Minh, they would assert that he was not their national. On this basis the British government itself could deprive Minh of British nationality without rendering him stateless because it asserted that anticipated loss of Vietnamese nationality had not happened yet: this followed only later, when the Vietnamese government announced that Minh was not its national. One of several questions this begs is whether Pham was at the relevant moment a national under a law which was deliberately ambiguous. And if nationality existed by reason of a deliberately ambiguous legal situation, how does a mere declaration by the Vietnamese government reverse nationality so that Minh is now stateless?

The decision invites questions concerning the conduct of the British state. The United Kingdom has in the past promoted itself as an advocate of international norms, rather than the converse. Here it may have edged a success by slipping in early with its denationalisation of Minh, knowing it likely that Vietnam would then disavow him, but that scarcely inspires confidence in the integrity of its actions. It may have had little faith in Vietnamese law and practice regarding nationality, but international law cannot be maintained if every participant is looking solely to elude restriction by sharp practice. And if the bar on creating statelessness is the major impediment to denationalisation, an unintended consequence likely to attract more attention is the priority accorded to being quick on the draw as states broaden their scope for denationalisation, given that the last state is the one most likely to be left holding the baby.

Eric Fripp
Temple, London EC4

Vol. 37 No. 14 · 16 July 2015

Sadakat Kadri writes that the removal of citizenship as a penalty for disloyalty has rarely been used in Britain (LRB, 18 June). There is, in fact, a long and extensive history of denaturalisation for ‘disloyalty’, which is dismayingly overlooked in the current debate. Between the mid-19th and mid-20th centuries, Britain, like virtually every other country in the world, stripped (birthright) citizenship from women who married foreign men. The practice, which operated under British law from 1870 to 1949, applied without exception or discretion, and affected probably millions of women. While denaturalisation was not styled as a ‘penalty’ (although many women experienced it as such), foreign marriage was represented as a type of disallegiance or, at least, a transfer of allegiance. The assumption was that an ‘out-marrying’ woman would acquire the citizenship of her husband, but no inquiry was made into whether or not this happened. Increasingly, statelessness among married women was the result. In the 1920s, the international community became concerned about escalating marital statelessness. It was a central topic at the League of Nations codification of laws conference in 1930, which produced the Hague Convention on Nationality, a section of which proscribed marital denaturalisation in cases where it led to statelessness. Marital denaturalisation, however, was not otherwise internationally repudiated until the adoption of the United Nations Convention on the Nationality of Married Women in 1957. The effect of citizenship-stripping, rendering women aliens in their own country and making them vulnerable to the uncertain laws of other countries was often drastic. Its history illustrates not only Hannah Arendt’s ‘right to have rights’ aphorism, but her observation that loss of citizenship means ‘the loss of home and political status … identical with expulsion from humanity altogether’.

Helen Irving
University of Sydney

Vol. 37 No. 15 · 30 July 2015

I was interested in Helen Irving’s comments about the British treatment of women who were ‘natural-born British subjects’ – the language comes from the relevant legislation – and who married aliens (Letters, 16 July). She states that such women were ‘stripped’ of their citizenship and that this practice operated ‘without exception or discretion’. I know of two married women who were British subjects and who married aliens, acquiring the nationality of their husbands, but who were entitled through a procedure provided for by law to resume their British nationality. One was my mother and the other was a close friend of hers.

I have in front of me the certificate of naturalisation granted on 7 August 1941 to my mother in which the secretary of state declares that upon taking the Oath of Allegiance she shall be entitled to all political and other rights, powers and privileges, ‘and have to all intents and purposes the status of a natural-born British subject’. My mother swore the oath on 27 August 1941 and was registered by the Home Office on 13 September. It is worth pointing out that the legislation also provided that the wife of a British subject was deemed to be a British subject.

Tom Rivers
London N7

Helen Irving refers to the international repudiation of gender-based marital denaturalisation in the UN’s Convention on the Nationality of Married Women of 1957. That news took a while to reach southern Africa. Under the citizenship law of revolutionary Mozambique from independence in 1975 until the adoption of a new constitution in 1990, women who married foreigners lost their citizenship the moment they said ‘I do.’ Similarly, under the 1984 citizenship law of Botswana, only fathers could transmit their citizenship to their children, so the offspring of Motswana women married to foreigners were denaturalised even if they were born in the country. That provision was eventually overturned by the Court of Appeal in 1992, with the government arguing that ‘discrimination on grounds of sex must be permitted in Botswana’ because it was customary.

Colin Darch
University of Cape Town

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