Farzana Yasmin Khan commentates on the Nationality and Borders Bill and the injustice of the stripping of citizenship permitted under clause nine.
The Nationality and Borders bill presents a formidable array of draconian policies – one of which is citizenship stripping without any prior notice. This measure is likely to have been triggered by British woman, Shamima Begum, who was stripped of citizenship despite fulfilling the threshold of a victim of online grooming, coercion, exploitation, international trafficking, underage marriage and statutory rape.[1] Not to mention, unlike the Rotherham (England) victims of grooming and child sexual exploitation, Begum was not deemed worthy of rehabilitation despite her expression of interest.[2] Setting aside the inconsistencies in Begum’s case when it comes to stripping away protections against statelessness compared to Pham[3] and Al-Jedda[4], the British Government’s track record on citizenship stripping[5] for the last two decades begs the normative question: Is the introduction of such policy via legislative measure is necessary or appropriate?[6]
The Creation of a ‘Second-Class Citizenship’ and the Victimisation of Ethnic Minorities:
From the outset, this Bill clearly sets a dangerous precedent, pushing the divisive narrative that somehow some citizens are less equal than their vast counterparts by virtue of nothing but their ethnic background. The Bill allows the Government to treat minority and mixed heritage Britons differently to their white counterparts for committing the same crime, since the Government says it’s possible to strip Britons of their citizenship if they have another nationality to fall back on, for example by virtue of the country their parents come from. [7]
Consequently, it seems to create a second class citizenship like the Orwellian adoption in Animal Firm: ‘all [humans] are equal, but some are more equal than others’.[8]
The irony is that the sole purpose of legislation should be to ensure that the rights of vulnerable groups such as minorities are well protected within its ambit, yet this Bill serves as a tool of oppression and marginalisation. If we consider the case of Begum as an example, it is clear that this bill is an insult to our much-revered rule of law.
A Tool of Marginalisation and Oppression
As a consequence of the above, an atmosphere of fear is being imposed upon ethnic minority groups in the United Kingdom. Whereas, even If White-British citizens are to commit crimes such as fraud, terrorism (including far-right terrorism and hate crimes) and actions that can be deemed contrary to ‘public good’, they are not at risk of having their citizen stripped in the same unjust way. For this reason, the ‘potentially racist’ label ,as offered by London Assembly, seems fully earned as well as justified.[9]
Mockery of our Anti-Discrimination Law
The Equality Act 2010 makes discrimination unlawful. It sets out that indirect discrimination occurs when there’s a practice, policy or rule which applies to everyone in the same way, but has a heightened impact on some.[10]Applying this principle, while the Borders Bill applies to everyone equally, it impacts disproportionately those from the ethnic minorities with at least one parent born abroad/outside the UK. Hence, this divisive policy can be deemed indirectly discriminatory under the Equality Act 2010.
While our Government has been stripping people of their citizenship for the last 15 years, primarily on the ground of National Security, this Bill paves the way for minority citizens to fall further victim to prejudicial biases by legalising such discriminatory practice without giving them a chance to clear their name. Hence, it will likely escalate further miscarriage of justice while heightening racial disparity. Accordingly, barristers find this Bill to be unconstitutional for its disproportionate impact on minorities.[11]
In light of the above, one ought to ask why the Government seeks to keep certain citizens on their toes who happen to be from minority backgrounds? Is it the state’s way of questioning their (minority) allegiance to the very soil they call home, namely Britain?
Arbitrary Provision Warranting Action via Judicial Review
To add insult to this already existing injury, the stripping of citizenship under clause nine, is said to be permitted if the Government considers such as ‘conducive to the public good’. Not only does this introduce a worrying trend, where exceptions are normalised, as the Bill doesn’t define the nitty gritty of the actions that could render one susceptible to be stripped of their citizenship, the Government are left with a huge amount of discretionary power.
When left with such power, decision makers can justify any excuses as they deem fit to strip someone of their citizenship and can conveniently go down a slippery slope. This is exemplified by Trump’s Muslim ban and the extreme measures adopted in Nazi Germany. I would argue that the very arbitrary nature of this legislation should warrant an action in a judicial review at the highest court of the land, challenging the validity and lawfulness of the legislation itself. Afterall, nothing enacted can’t be overturned.
Assault on our Civil Liberties and the Right to a Fair Trial
As a final point, the right to a fair trial is also under threat as a result of this bill. Lawyer Katie Lines, from human rights organisation Liberty which intervenedin Ms Begum’s appeal, said: “The right to a fair trial is not something the Government can take away on a whim.” [12] Similarly barristers have considered such practice to be an assault on the right to fair trial. Afterall, this is a fundamental part of our justice system and equal access to justice must apply to everyone. Ms Begum’s solicitor, Daniel Furner, stated that his client “never had a fair opportunity to give her side of the story”, adding that she is “not afraid of facing British justice; she welcomes it. But the stripping of her citizenship without a chance to clear her name is not justice – it is the opposite.” [13]
Conclusion
In a post Brexit divided Britain, it is crucial to remember: the only party who gains anything from policies as such the Nationality and Borders Bill is the Government by distracting the public from its own failures, lies and liabilities post pandemic.
As a law student who has successfully challenged prejudicial biases on numerous occasions, it remains vital to emphasise that no legislation should ever be premised on prejudicial biases in ‘othering’[14] our fellow minority citizens. It starts with shedding our imperialistic presumption of superiority, which holds the colonial saviour ideology that seeks to civilise the backward ‘others’ such as Muslim women who are branded as oppressed victims of patriarchy and lack agency.
The fact that this narrative of Muslim women lacking agency and needing to be saved was conveniently missing in the case of Begum despite her being a child victim of grooming, serves to illustrate my point. Therefore, unlike the Rotherham victims, it remains questionable why she can’t be rehabilitated.
No matter how normalised discriminatory policies are, if anything has been learned since the brutal murder of George Floyd, humanity collectively must overthrow the tyranny of systematic and structural racism which underpins such policies. It demands the sheer audacity to call out the biting inequality, often rooted in sickening racial supremacy, no matter where we see it. The responsibility falls on all of us and not just on the shoulder of minority citizens.
It starts with asking our collective human conscience the uncomfortable question: are we comfortable seeing our loved ones, friends, colleagues, helpers, and healers, to be treated as second class citizens for no other reasons but simply by virtue of their ethnic backgrounds?
If we are, then we ought to be prepared to be seen with utter disgust by the next generation that will come after us just as we look back on those who perpetuated the inhumane slavery and the decades of discrimination that subsequently followed from such abhorrent albeit normalised practices.
[1] Human Rights and British Citizenship: The Case of Shamima Begum as Citizen to Homo Sacer
Mercedes Masters and Salvador Santino F. Regilme Jr. <https://doi.org/10.1093/jhuman/huaa029>
[2] (n1), 353
[3] Pham v Secretary of State or the Home Department (2015), §§38; 64; 101 <https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2015/19.html&query=(Pham)>
[4] Secretary of State for the Home Department v Al-Jedda <https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2013/62.html&query=(Al-Jedda)+AND+(2013)>
[5] https://freemovement.org.uk/how-many-people-have-been-stripped-of-their-british-citizenship-home-office-deprivation/
[6] The Deeper Lesson from Terrorist Expatriation Proposals by Steve Vladeck
[7] Nationality and Borders Bill: Why is it causing protests? By Nalini Sivathasan <https://www.bbc.co.uk/news/newsbeat-59651523>
[8] Adapted from George Orwell’s 1945 novella Animal Farm.
[9]Why we need to unite against the Nationality and Borders Bill by Grace Almond and Christopher Almond <https://www.greenpeace.org.uk/news/unite-against-the-nationality-and-borders-bill/#:~:text=The%20Nationality%20and%20Borders%20Bill%20puts%20barriers%20in%20the%20way,turn%20our%20backs%20on%20migrants.>
[10] ibid
[11] (n10)
[12] MISUSE OF EXTREME POWERS LATEST THREAT TO RULE OF LAW, SAYS LIBERTY FOLLOWING SHAMIMA BEGUM RULING Posted on 26 Feb 2021 <https://www.libertyhumanrights.org.uk/issue/misuse-of-extreme-powers-latest-threat-to-rule-of-law-says-liberty-in-shamima-begum-case/#:~:text=Stripping%20someone’s%20citizenship%20without%20due,to%20return%20to%20the%20UK.>
[13] Shamima Begum’s case and the assault on the right to a fair trial by barrister Ameer Ismail.<https://mlag.legal/blog/shamima-begums-case-and-the-assault-on-the-right-to-a-fair-trial>
[14] (n1), 349-350 ‘Othering’ is the act of ‘treating people from another group as essentially different from and generally inferior to the group you belong to’ (Macmillan Dictionary 2019 (online): ‘Othering’ definition See Regilme (2016) for the politics of ‘Othering’ in migration policies.)Particularly within identity politics, generating collective and in- dividual identity through the distinction from and discrimination against others formulates the polarization of the Self and the Other, the ‘Us vs Them’ (Said 1978: 3–9; Mitchell 1988: 167–88).
Said stresses how the West historically and contemporarily exploits ‘Othering’ as a form of identity-building, especially towards Muslims. He argues that the act of ‘Othering’ in the West is augmented by polarizing rhetoric stemming from Orientalist and colonial ideologies of the Occident versus the Orient. These ideologies established the binary of ‘We’ ‘superior’ white Westerners and ‘Them’ ‘inferior’ non-white ‘Others’ (Said 1978: xvii).
Said highlights that the West consistently depicts Arabs, specifically Muslim Arabs, as lesser through multiple methods but especially through political discourse (ibid.). Throughout a long history of ‘Othering’, the West successfully juxtaposed the two socio-political cultures as binary opposites. Thus, if historical and contemporary British nationhood is rooted in imagined-and-established colonial thought embedding ‘Us vs Them’ ethno-national narratives, ‘Britishness’ can only ever be inherent to white British people.
It is firstly noticeable that UK Home Secretary Javid employs ‘Othering’ rhetoric, using the pronoun ‘they’ for British citizens who joined Islamic State, and directly compares ‘them’ to the collective ‘we’. Furthermore, he swiftly refers to ‘Britishness’ and ‘the values we stand for’ being in direct contrast to ‘them’ and ‘their’ views. He emphasizes the contrast between ‘Us’ and ‘Them’ by applying hyperbolic emotive language, such as stating that ‘they hate our country’.
Using such terminology immediately panders to populist movements and rhetoric (Greenslade 2019). Furthermore, it deepens the colonial-rooted ideology and system of the ‘superior’, ‘civilized’ ‘Us’ and the ‘back- wards’, ‘barbaric’ ‘Them’ (Said 1978), entrenching views of ‘Them’ Muslims as an active threat to ‘Us’. These notions are not only held by senior politicians but are also reflected within the British media following the Begum case.
Image credit: ‘unrecognizable person demonstrating British passport’ Ethan Wilkinson VIA PEXELS
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