My Lords, Clause 60, on deprivation of citizenship, is very important and far-reaching. There are two groups of amendments on this issue. I shall make my main remarks on this group and make a couple of comments on the second group.
Clause 60 amends Section 40 of the British Nationality Act 1981 to enable the Secretary of State to deprive someone of their citizenship even if that would make them stateless, but only if the citizenship has been gained through naturalisation and the Home Secretary is satisfied that the deprivation is, in the words of a government new clause introduced by her in the House of Commons,
“conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.—[Official Report, Commons, 30/1/14; col. 1026.]
Currently, the law allows the Home Secretary to deprive a person of their citizenship status for two reasons: first, if the person acquired it using fraud, false representation or concealment of a material fact; or, secondly, if the Home Secretary is satisfied that, in doing so, it is conducive to the public good and that the person would not be left stateless as a result. Clause 60 seeks to amend the second condition to, in the words of a Minister in the other place,
“ensure that individuals who are a serious threat to this country cannot retain citizenship simply because deprivation would leave them stateless”.—[Official Report, Commons, 11/2/14; col. 259WH.]
I question the word “simply” in that context. It would be helpful if the Minister could clarify whether there are any other areas of law in which we have different categories of citizens.
I know that everyone in your Lordships’ House without exception wants to do all they can to protect citizens from a potential terrorist threat and activity at home and abroad, and, indeed, recognises that we have international obligations in this regard as terrorism is a global threat. The Home Secretary, Theresa May, is aware of the seriousness of the issue before us today. She recognises that depriving an individual of their citizenship,
“is one of the most serious sanctions a state can take against a person”,—[Official Report, Commons, 30/1/14; col. 1038.]
and we agree with that. This clause was tabled just 24 hours before Report stage in the other place, with no prior consultation, let alone explanations or agreement, and a very truncated debate. Parliament has had little opportunity to scrutinise this measure, which has massive consequences and implications both for the individual and for the state, and for other countries.
We have tabled Amendments 74 and 79, which add a permission stage. Effectively, the Secretary of State would be required to seek permission from the court before making an order. I readily admit that the drafting is not perfect; we are not wedded to any specific wording here. However, we need a response from the Minister on the principle of oversight.
Clause 60 is a response to the judgment about Hilal Al-Jedda by the Supreme Court, which clarified that the Secretary of State could not withdraw citizenship from an individual if this would leave them stateless. For the Government to do so would lead to one of two scenarios. The first is that a former citizen would remain locked in the UK, unable to leave, work or receive any support, but the Government would still have obligations to that individual. In January last year, the Department for International Development published guidance on how a stateless person could apply for leave to remain in the UK.
The second scenario is that the former citizen, whom the Government consider to be engaged in actions prejudicial to UK interests, is left stateless in another country. I would be very interested to know what discussions the Government have held on this proposal with other countries, such as the USA or Germany, which have not given themselves the power to make other citizens stateless. The fight against terrorism is international and global. What are the implications for national and international security of allowing terror suspects to be loose and undocumented in whatever country they happen to be in when their citizenship is revoked? A number of issues arise from this clause. First, what will be the process for making an order under this clause? The Minister, James Brokenshire MP, has said that the process will,
“involve extensive research and understanding of an individual’s previous behaviour, any potential human rights issues and the threats that they pose to the UK. Officials from the Home Office and other Departments are consulted before the information is reviewed and a final decision made by the Home Secretary”.— [Official Report, Commons, 11/2/14; col. 259WH.]
The information provided by the department also suggests that the welfare of any children involved would be a consideration. Can the Minister provide further information or clarification on the specific grounds the Secretary of State would consider? Will the Home Secretary be able to take political considerations
into account? Will she consult her Cabinet colleagues, for example, or will this decision be made on the advice and information from the security services? Obviously, with such a serious issue, there must be absolute certainty about the decision-making criteria. Accurate, factual information and risk assessments are of paramount importance.
I wonder whether the noble Lord could help me understand a particular case from 2011, which was brought to my attention by the Bureau of Investigative Journalism. It is the case of Y1. The witness statement from the deputy director of the Office for Security and Counter-Terrorism, on behalf of the Home Secretary, stated that the security service considered that Y1,
“presented a substantial risk to UK national security”.
He added that there was clear information that depriving Y1 of British nationality was conducive to the public good. However, he also stated that although they considered that Y1 presented such a risk, they also believed that,
“his detention had reduced the immediate risk he posed and judged that there may be more options for controlling that risk if Y1 were in the UK”.
That is a direct quote from the witness statement that was presented to the court. I read that as the security services wanting Y1 to be in the UK so that they can monitor his activities. They would be unable to do so if he were outside the UK and stateless. Following Y1’s appeal to the Special Immigration Appeals Commission, the judges reported that:
“Ultimately, the Home Secretary rejected the advice of the Security Service on the ‘management’ issue. Following consultation with other senior Ministers, the decision to deprive”,
him of citizenship “was made”.
I do not raise this to question the Secretary of State’s judgment, but I seek clarity on the process. That is why I added my name to the amendment in the next group, tabled by the noble Lord, Lord Pannick. Amendment 79C would require guidance to be published on the process to be followed. It seems to me that we need far more information on how the Secretary of State will make a decision.
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Secondly, I turn to the definition of the phrase “seriously prejudicial”. In the Commons, Theresa May replied to this question by saying that it would “be understood”. The Minister has provided more detailed information but where would that higher test of “seriously prejudicial” be set out and who will apply it? The Government have also said that it would apply to a very limited number of people and that the power would be used sparingly. James Brokenshire said that,
“only a small number of individuals are deprived of their citizenship … since 2006, 27 people have been deprived under these conducive powers”.—[Official Report, Commons, 11/2/14; col. 260WH.]
I have never considered that few people being affected by a power makes it less important to consider its implications. It would be helpful to have far more precise information. How many of those 27 people were in the UK when their citizenship was withdrawn and they were made stateless? How many were outside the UK at the time the decision was made? That is an
example of the kind of information that it would be helpful to have to understand a little more about the Government’s motives and reasoning behind this clause.
Again I am grateful to the Bureau of Investigative Journalism, which has identified 15 of those cases where the person was overseas at the time. It has also shown that the use of these powers has gradually increased under this Government. Until about 2010, there was roughly one case a year in which someone’s citizenship was withdrawn. Since then the number of cases has increased to five in 2010, six in 2011 and eight in 2013. I do not know whether the Minister can comment on that.
When citizenship has been withdrawn from citizens who are overseas, is the country which admitted that individual in good faith on a British passport consulted or advised at any stage or even notified after the withdrawal of citizenship? When our amendment was discussed in the Commons, the Home Secretary, said:
“I will be willing to consider them and, if necessary, address them further in another place”.—[Official Report, Commons, 30/1/14; col. 1040.]
“Another place” refers to your Lordships’ House. We are grateful for letters and meetings that we have already had but would like far greater engagement from the Minister today.
In response to the Constitution Committee’s report, the Government said that one problem with a permission stage—the process that we propose—was that,
“it is unclear how the court could act impartially”,
if any appeal, if not already given permission, was brought back to them. That is slightly ironic given that the Minister has been arguing the opposite in relation to the new administrative review process under Clause 11 on visa appeals. That review would be by the same body, which under that clause would be the caseworkers. He does not consider that that would create a conflict. Therefore, I am unclear why the response to the Constitution Committee is that the courts dealing with the issue would create a conflict. The Government were arguing against that in principle and are now arguing for it in principle.
The Government have confirmed that a person deprived of their citizenship has a full right of appeal and that grounds for appeal would include both the legality of the action and the merits of the Secretary of State’s decision. James Brokenshire has also confirmed that, before issuing a deprivation order, the Secretary of State must notify the person of the decision to make the order, set out the reasons for it and tell the person of their right to appeal. Will the Minister clarify how that will work when the person is outside the country? I believe that, at Second Reading, my noble friend Lady Kennedy gave a very powerful and disturbing case about a person who did not receive that notification and could not be contacted by those who had interceded and had seen the letter from the Government. What happens if the individual cannot be contacted?
In today’s Independent, there is a report about a young man who did not receive any notification because he was out of the country. It was only when he got to the airport to return to the UK that an official from the UK Government was there to ask for his passport.
The Government must have known that he was out of the UK to be able to meet him as he was trying to leave the country he was in at the time. I would like to know the mechanics, how they work and how the Government intend them to work if a person has a certain amount of time in which to appeal but does not receive, or know of, the letter within that time. What would happen to the family or dependants of someone who has been deprived of citizenship? Again, in response to the Constitution Committee, the Minister said that the Government would not take deprivation action against family members on the basis of their relationship with the person being deprived of citizenship. However, the question goes wider than that. What would happen to any child left behind in the UK?
I turn now to what happens to those who have had their citizenship removed. This is important because we are dealing with people whose activities the Government say are of concern to us, or who may be a danger. The Government have clarified that this power could be used against people whether or not they are in the country, and whether or not they could acquire another nationality. I have been reading the comments from James Brokenshire, the Minister in another place, and I still remain somewhat confused. He said that the Government
“would seek to remove that individual from the UK once they have acquired another nationality”.—[Official Report, Commons, 11/2/14; col. 261WH.]
What happens to those who cannot acquire another nationality? How can we remove somebody who has no passport, no travel documents and no country to go to? Where would they go, and what would happen if they then stayed in the UK? James Brokenshire said, in the event that they remained in the UK, that they could be granted limited leave “possibly” with conditions, as the UK would have certain international legal obligations under the UN convention. This was expanded on in the Constitution Committee:
“We would expect anyone deprived of British citizenship under this new provision to attempt to resolve their nationality issues with their country of origin/birth”.
I think the Minister has to understand that it will not always be possible to do this. However, the Minister said:
“This is an entirely reasonable expectation before they could apply for leave as a stateless person. For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances”.
Does that not mean that we have people who are stuck here, whom we cannot deport and to whom we have obligations, but no charge has been brought against them? How does that help ensure that national security is protected? What happens if someone is in another state when that decision is taken? What would be the obligations of that state? One of the things that has concerned me is our relationship with those states who then admit somebody in good faith on a British passport, but that passport and that citizenship is then withdrawn?
Guy Goodwin-Gill, a professor at Oxford and an expert on this area, has written that:
“Any state which admitted an individual on the basis of his or her British passport would be fully entitled to ignore any purported deprivation of citizenship and, as a matter of right, to return that person to the United Kingdom”.
How would that scenario impact on the UK’s relationship with that state? What discussions would there have been with other countries on this issue? Has there been any consideration of the possible impact on UK passport holders?
In recent years, there has been a renewed worldwide push to encourage nationality laws that reduce statelessness. Will the Minister say how many other countries have powers to make citizens stateless? Which do and which do not? There are many unanswered questions on this clause—on the purpose, the practicality and the impact. I have raised some of those questions today. I hope that the Minister can provide some more information and evidence on the workability and implications on this clause because there are very serious consequences and considerations to be taken into account.