Short Cuts

Sadakat Kadri

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.