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Can President Assad’s wife be deprived of her British citizenship on public good grounds?

Can President Assad’s wife be deprived of her British citizenship on public good grounds?

The “Liberal” Democrats are apparently calling for President Assad’s wife to be deprived of her British citizenship. I am loathe to refer to anyone as “x person’s wife” but this seems to be exactly the basis for the deprivation of citizenship: that she is President Assad’s wife. The remainder of the justification seems very thin indeed.

Liberal Democrat foreign affairs spokesman Tom Brake says that she has supported President Assad’s regime and therefore should be stripped of her British citizenship. It is not said she has personally been involved in any war crimes or similar or to have sanctioned such atrocities. Mr Brake seems to consider that holding and expressing a political opinion — an awful one, let us be clear — is sufficient to justify depriving a person of their citizenship.

What is the law on deprivation of citizenship on public good grounds and what do we know about when that power might be exercised?

Legal power to deprive British citizenship on “public good” grounds

Asma al-Assad is reported to have been born in the UK to Syrian parents in 1975. She was therefore born a Citizen of the United Kingdom and Colonies (CUKC) and became a British citizen on 1 January 1983 on commencement of the British Nationality Act 1981. She is British by birth, not by later naturalisation or registration.

Her children should also be British citizens by virtue of section 2(1) of the British Nationality Act 1981, as Mrs al-Assad is not a British citizen by descent.

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Nevertheless, since 2003 even a British citizen by birth can be deprived of their British citizenship. The legal power for this is conferred on the Home Secretary by section 40 of the British Nationality Act 1981. Essentially, the power can be used where the Secretary of State considers it in the public interest to do so.

As background, this power has been repeatedly amended in recent years to make it easier to strip citizenship from Britons. Between 2003 and 2006 the test for deprivation was whether a person had “done anything seriously prejudicial to the vital interests of the United Kingdom”. Before that, it was not possible to remove British citizenship from a person who was born British.

The use of deprivation powers has grown in recent years. In July 2016 the Bureau of Investigative Journalism reported that Theresa May had as Home Secretary used the public good deprivation powers against 33 individuals since May 2010.

You can read the full text of the current version of section 40 in the drop down below:

Full text of section 40 British Nationality Act 1981

40 Deprivation of citizenship

(1) In this section a reference to a person’s “citizenship status” is a reference to his status as—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British Overseas citizen,

(d) a British National (Overseas),

(e) a British protected person, or

(f) a British subject.

(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.

(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a) fraud,

(b) false representation, or

(c) concealment of a material fact.

(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

(a) the citizenship status results from the person’s naturalisation,

(b) the Secretary of State is satisfied that the deprivation is 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, any of the Islands, or any British overseas territory, and

(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a) that the Secretary of State has decided to make an order,

(b) the reasons for the order, and

(c) the person’s right of appeal under section 40A(1) or under section 2B  of the Special Immigration Appeals Commission Act 1997 (c. 68).

(6) Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a) fraud,

(b) false representation, or

(c) concealment of a material fact.

The key subsections are (2), which confers the power to deprive all British citizens of their citizenship and then (4) which prevents the power from being used where it would leave a person stateless. Subsection (4A) does, however, permit deprivation where it would leave a person stateless, but only where the British citizen became British through naturalisation or registration.

It is therefore legally possible to strip Asma al-Assad of her British citizenship. The power can be excerised against a person born British. If she loses her British citizenship she will not be stateless because she will still be Syrian. All that is needed is for the Secretary of State to consider it in the public good to do so.

Policy on deprivation of British citizenship

The Home Office has a detailed set of policies dealing with legal issues around British nationality. These are set out in the Nationality Instructions. The relevant part here is Chapter 55 on Deprivation and Nullity of British citizenship.

A policy explains the circumstances in which a legal power is likely to be used and gives guidance to Home Office officials. Policies are not necessarily legally binding, though, as a decision maker can give reasons for departing from a policy.

The policy on deprivation deals with:

  1. Deprivation on public good grounds
  2. Deprivation due to fraud, false representation or concealment of a material fact
  3. Cases where an apparent grant of citizenship is nullified (so that the person has in truth never been a British citizen)

We are dealing with deprivation on public good grounds here. On this, the policy states that:

“Conduciveness to the Public Good” means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.

There is no further public guidance than this. The “unacceptable behaviours” are not listed. This gives the Secretary of State considerable discretion as to when deprivation can be pursued.

In the recent tribunal case of Ahmed and Others (deprivation of citizenship) (Pakistan) [2017] UKUT 118 (IAC), involving the deprivation of citizenship of the notorious Rochdale sex gang, the tribunal found there were no particular constraints on the Secretary of State in deciding what might or might not amount to “the public good” or indeed “unacceptable behaviours”.

Deprivation of citizenship because of family association

Reported citizenship deprivation cases typically involve alleged Islamic extremists personally involved in terrorism related activity in Afghanistan (here), in Somalia (here), in Pakistan (here) and in Yemen (here). In all these cases the subject of the order was alleged to have been personally involved in terrorism and to be a danger to national security.

I can think of one nationality case involving refusal of naturalisation to the family members of a known terrorist simply because of the family connection. This was M & GY & TY v Secretary of State for the Home Department [2015] EWHC 3513 (Admin) and the Home Office decision was overturned as being unlawful (see post Refusal of citizenship to wife and children of Islamist extremist declared unlawful).

The situation is different as in the case of Mrs al-Assad it is proposed that existing British citizenship be taken away rather than an application to become British being refused. The arguments are if anything even stronger here, though: how can it possibly be right to deprive a person of their citizenship of birth because of their family relationship?

To be fair to Liberal Democrat spokesman Mr Brake, there is also some suggestion that public expression of support for a repressive regime is sufficient grounds for deprivation.

This seems a dangerous path down which to go. All previous public good deprivation cases seem to have involved personal involvement in very serious crimes or terrorism. There is no suggestion that Mrs al-Assad has any such involvement, only that she has voiced her support for the Syrian government and its actions.

Expressions of political opinion or political loyalty should not be sufficient for citizenship to be taken away and the so called “Liberal” Democrats should certainly not be the ones making that highly illiberal case.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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