Should Britain Make Terror Suspects Stateless?

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On 12 November 2013, the Home Secretary, Theresa May, announced her intention to extend government powers to deprive terror suspects of their British citizenship, even if this leaves them stateless. Arguing that British citizenship is a “privilege, not a right”, May has removed citizenship from 16 people since taking office in 2010, almost all of whom were outside the UK at the time, and so unable make an appeal in a court of law. Changes to existing legislation, which currently gives the Home Secretary the power to denaturalise only those with dual nationality, would have profound implications for British citizens suspected of terrorism offences, and raises many concerns about the arbitrary nature of the power to denaturalise citizens.

The argument that citizenship is a privilege is not a new one. Before the 1960s, the majority of western nations had laws that permitted the removal of citizenship from those seen as a threat to national security. These laws were gradually repealed in the 1950s and 1960s, with the establishment of human rights conventions. Denaturalisation, it was argued, was to be opposed because it could lead to statelessness, and because it created distinctions between citizens. As denaturalisation laws often targeted naturalised citizens, those who were native-born could not be stripped of their nationality – and were therefore in a different class of citizenship. In the 1956 United States Supreme Court case, Trop v. Dulles, the court viewed statelessness as “the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community…. In short, the expatriate has lost the right to have rights”.[1]

Today, stateless individuals are often highly vulnerable, prevented from legally residing anywhere in the world, subject to indefinite detention and forcibly moved between states, having lost many of their rights along with their citizenship. Stateless terror suspects are also at high risk of being tortured and detained abroad. Such a situation, where rights are removed and suspects are silenced, is, of course, what the government aims to achieve. It seems that Theresa May believes that the removal of nationality from suspects will make it easier for Britain to deport them, but which countries will want to accept stateless terror suspects?

Legal protections established in the post-Second World War period against denaturalisation have gradually been eroded in Britain, following the events of 9/11 and 7/7. S4(2) of the Nationality, Immigration and Asylum Act 2002 granted the home secretary the power to remove citizenship, as along as they were satisfied that the citizen concerned had done something “seriously prejudicial to the vital interests of the United Kingdom”.[2] By 2006, these powers were widened significantly by s56(2) of the Immigration, Asylum and Nationality Act, which only required the secretary to be satisfied that “deprivation is conducive to the public good”.[3] The indefinite scope and meaning of the term “public good” has therefore dramatically increased the state’s power to remove citizenship as and when it likes, even from those who have not been charged with any crime.

One of the remaining domestic legal protections against government power to denaturalise British citizens is therefore contained in s40(4) of the British Nationality Act 1981. Under this section, the home secretary is prevented from removing citizenship if they are satisfied “that the order would make a person stateless”,[4] and it is this provision that Theresa May wishes to repeal. This follows considerable frustration at the ruling of the Supreme Court in the case of Hilal Abdul Razzaq Ali Al-Jedda in October, which used s40(4) to prevent Al-Jedda from having his British citizenship removed.

International law may therefore provide the only protection against statelessness. The removal of citizenship from people with only one nationality is prevented under international treaties the UK has ratified, including the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. However, whilst both conventions inhibit the UK’s power to impose statelessness upon its citizens, the government has retained the right to remove citizenship from naturalised citizens, if they have done something “seriously prejudicial to the vital interests of her Britannic Majesty”. So, while international law may offer some protection against statelessness, it appears that this may not be robust enough.

Successive governments in the post-9/11 period have slowly removed many legal protections against state power, and now Theresa May wants to expand the power of the state even wider, so that any British national suspected of terrorism can be left stateless and stripped of their rights, without the requirement of a trial. It is imperative that we all oppose such legislation, not only because its introduction eliminates the rights of individuals not even charged with a crime, but because, in the end, it leaves us all vulnerable to the continuing extension of arbitrary state power and the ongoing erosion of our civil liberties.

By Helen Allsopp


 

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