My Lords, Amendment 87ZB would retain Section 40A(3)(a) of the British Nationality Act 1981. This provision can be used by an immigration judge hearing an appeal against deprivation of nationality to direct, following a successful appeal, that an order depriving a person of his or her British nationality is to be treated as having had no effect. I think what my noble and learned friend said in response to Amendment 84A is relevant to this provision because he said that it is no longer necessary for immigration judges to have these powers of direction.
Amendment 87ZC would retain Section 2(6) of the Special Immigration Appeals Commission Act 1997, which states:
“In this section ‘immigration decision’ has the meaning given by section 82(2) of the Nationality, Immigration and Asylum Act 2002”.
It would thus be consequential upon leaving Clause 11 out of the Bill so that the existing Section 82(2) was preserved. As matters stand, Clause 11 removes the list of immigration decisions in Section 82(1) against which Section 82(2) gives a right of appeal.
Amendment 87ZCA amends Section 2B of the Special Immigration Appeals Commission Act 1997, which reads:
“A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (c. 61) (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2) (and section 40A(3)(a) shall have effect in relation to appeals under this section)”.
It is the cross-reference to the provision that Amendment 87ZB seeks to retain.
These amendments arise from the case of Hilal Al-Jedda, which was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on Monday. Mr Al-Jedda, originally an Iraqi citizen, sought asylum in the UK in 1992. He obtained refugee status in 1994, ILR in 1998 and UK citizenship in June 2000. Then, in June 2004, he was detained in Baghdad as a suspected member of a terrorist group
and was held without trial at a camp in Basra for the next three years. At the end of that period, it was discovered that he was a UK citizen. On 13 December 2007, he was released from detention and went to live in Turkey, where he remains to this date. Towards the end of his detention, the Secretary of State wrote to Mr Al-Jedda, saying that she was minded to make an order depriving him of his citizenship under Section 42 of the British Nationality Act, as well as excluding him from the UK, and inviting him to make any representations he chose against the order. His solicitors replied that he wished to challenge the order but, to do so, they required details of the facts on the basis of which he was suspected of terrorism. The Secretary of State declined to give that information and proceeded to make the order on 14 December 2007.
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In the course of this correspondence, neither the Home Secretary nor Mr Al-Jedda’s solicitors referred to Section 40(4) of the British Nationality Act, which provides that:
“The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless”.
It later transpired that the Home Secretary has been working on the assumption that Mr Al-Jedda had reverted to his previous nationality, even though an Iraqi who takes any foreign citizenship automatically loses his Iraqi citizenship. Her view was confirmed by SIAC when Mr Al-Jedda appealed to it in July 2010, but that was overturned by the Court of Appeal and remitted again to SIAC. SIAC reaffirmed its original decision, as did the Court of Appeal for a second time. The Secretary of State then appealed to the Supreme Court, where she argued that she could be satisfied that making the order would not make the person stateless if he had another nationality option, and that in this case Mr Al-Jedda could have applied for a resumption of his Iraqi citizenship which would have been granted. This was a wholly spurious argument, because Section 40(4) of the British Nationality Act refers to a person’s situation immediately the order has been made and not to what it might be at some time in the future when the stateless person had taken specific steps and the country of his former nationality had hypothetically responded favourably to them.
Lord Justice Richards said in the Court of Appeal that the point was,
“by no means free from doubt”.
As a stateless person living in Turkey, Mr Al-Jedda would have had to apply to the Iraqi authorities for a visa to re-enter the country to make the application for citizenship in person and, if he got that far, he could have been refused on security grounds. What it boiled down to was not arcane speculation about what might happen in a country still recovering from dictatorship and war, however, but what Mr Al-Jedda’s position was, immediately an order was made.
As to the circumstances which led up to the deprivation, the Supreme Court held that Section 40(4),
“does not permit, still less require, analysis of the causative factors”.
The inquiry the Secretary of State needs to make is a straightforward exercise to determine whether the person holds another nationality at the date of the order.
Now, clearly, the Secretary of State, having been forced to recognise the “fallacy behind her appeal”, as the Supreme Court described it, decided to change the law to make it possible to deprive people of their UK citizenship even when that means that they will become stateless. In my noble friend the Minister’s letter to the noble Baroness, Lady Jay, chair of the Select Committee on the Constitution, he says:
“We are legislating to correct the anomaly between what we do with regard to statelessness and what we are required to do in international law”.
It seems that there is no express contravention of international law in what the Government are doing, because when we signed up to the 1961 UN Convention on the Reduction of Statelessness we entered a reservation that allowed us to deprive a naturalised person of his nationality on grounds that are broadly similar to those in Clause 60. But, as Professor Guy Goodwin-Gill, counsel in the Al-Jedda case, observes, there are both domestic and international human rights implications. If the person is in this country when the order takes effect, he might be given limited leave to remain, with conditions regarding access to public funds and the right to work or study, though it is clearly the intention to remove him to his country of origin if that is possible. In the Minister’s letter to the noble Baroness, Lady Jay, he says again that we may grant leave to those persons, on conditions analogous to those of other migrants with temporary leave. Family members who are UK citizens will not be deprived of their rights, but what access will they have, for instance, to public funds? Will they be treated as if they were dependants of a citizen, or would they suffer financial and other penalties as a result of their relationship with the person being deprived of his citizenship? What will be their position if they are not UK citizens—for example, if the spouses and children of that person were from the country of origin and still awaiting indefinite leave to remain?
Where the person is not in the UK, such as Mr Al-Jedda with his wife and eight children, do we expect the other country to look after him for the rest of his life? He entered Turkey on a false passport and is therefore presumably not eligible to work—if indeed he can speak Turkish and has skills that would be useful to a Turkish employer. I suppose that as long as the Turkish authorities are not protesting we can say that it is not a matter of any concern to us how Mr Al-Jedda and his family survive, though some of his children are probably British citizens.
Other countries may not be so complacent when we dump our unwanted citizens on them. As another example, Abu Hamza, who served a seven-year prison sentence here for terrorist offences, was subsequently extradited to the US where he is now in custody awaiting trial on further terrorist offences. If he is acquitted, or if he is convicted and serves his time there, would the US authorities be happy to keep him and to accept that he was no longer returnable to the United Kingdom? They would surely argue that he had been admitted on extradition as a British citizen and it is likely that he travelled with a British passport. The US would be entitled to rely on those facts and the applicable international law when pressing the UK to take him back.
The Minister was asked how many of the people who have been deprived of their citizenship so far under the existing law were in fact abroad at the time at which it took place. He dodged that question when it was last asked. It is important that we should know the answer to it this evening.
As we have been told, there are probably going to be only a handful of people affected by these provisions, but what is far worse even than the effects on those few individuals and their families is the appalling example we are setting to the rest of the world. Britain was in the forefront in promoting the 1961 UN Convention on the Reduction of Statelessness, and has since worked to reduce the pockets of statelessness that still exist all over the world, such as the Bidoon in the Gulf states, the Rohingya and the Palestinians. How can we now pretend to a share in the leadership of the UNHCR’s continuing effort to eliminate statelessness when, at the same time, we are enacting domestic legislation to create more stateless people? I beg to move.