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Government to deprive Brits of their citizenship without telling them

Government to deprive Brits of their citizenship without telling them

The Home Secretary can take away anyone’s British citizenship when it would be “conducive to the public good” but would not make that person stateless. She can also take away naturalised citizenship if obtained by fraud, false representation or concealment of a material fact.

The circumstances in which the Home Secretary has exercised this power for “the public good” have largely concerned Brits who travelled to foreign countries to join Islamist terrorist groups. The power has had the practical effect of preventing them from re-entering the UK, meaning they do not become a terrorist threat on domestic soil. 

The government is now about to change the law so that people will no longer need to be notified about being stripped of their citizenship.

NC19: no-notice citizenship deprivation 

Today MPs are expected to vote in committee on amendment NC19 to the Nationality and Borders Bill 2021. NC19 would create some circumstances in which the Home Secretary does not need to tell the person being deprived of their citizenship what is about to happen.

At present, section 40(5) of the British Nationality Act 1981 provides that the Home Secretary must give “written notice” to a British citizen before they have their citizenship taken away. The British Nationality (General) Regulations 2003, as amended in 2018, allow for notice to be sent to the person’s last known address if their whereabouts are unknown. But the recent High Court decision in R (D4) v Secretary of State for the Home Department [2021] EWHC 2179 (Admin) found that the 1981 Act did not permit the government to make no effort whatsoever to contact someone before depriving them of citizenship.

The D4 judgment is currently awaiting an appeal hearing. NC19 is an obvious attempt by the government to decide the notice issue outside the courts by changing what the 1981 Act says.  

It would put a new subsection 40(5A) into the 1981 Act. This would allow the Home Secretary to ignore the written notice requirement in subsection 40(5), in the following circumstances:

(a) the Secretary of State does not have the information needed to be able to give notice under that subsection, 

(b) it would for any other reason not be reasonably practicable to give notice under that subsection, or [my emphasis] 

(c) notice under that subsection should not be given— 

(i) in the interests of national security, 

(ii) in the interests of the relationship between the United Kingdom and another country, or 

(iii) otherwise in the public interest.

The perceived advantages of not giving notice appear to be threefold. First, it avoids a deprivation order being unlawful if incorrectly communicated to the affected person. Second, there may be other public interest reasons for not communicating notice (or seeking to communicate at all) with the person concerned, particularly if they are deemed a national security risk. Third, not giving notice bolsters a public narrative that the government is doing whatever it takes to keep Britain safe. 

Why exactly is NC19 concerning?

There are three reasons why this provision is concerning.

First, it is unclear how the Home Secretary can determine that it is impossible or not reasonably practicable to even attempt to give notice without trying to do so in the first place. Subsection 40(5A) seems to allow for no effort whatsoever.

Second, the “or”s in subsection 40(5A) mean that the conditions for not requiring notice are severable. Even if it were feasible to give notice, the government would not be obliged to provide notice when any of the concerns under subsection 40(5A)(c) are in play. This goes further than the regulation ruled ultra vires in the D4 case, which allowed for no-notice citizenship deprivation only when the person’s whereabouts were unknown and there was neither a valid address for correspondence nor a lawyer acting. Moreover, subsection 40(5A)(c) creates an exception to the notice requirement for diplomatic or other “public interests”, not just “national security” reasons.

Third, what happens after the order is made? The present law explicitly demands notice for the deprivation “before” the order is made, not after. There would now be no specific requirement in statute that notice need ever be given for a citizenship deprivation order caught by the new amendment.

How should the government respond if a solicitor wrote asking them to assist in the repatriation of an individual in the belief that the person was still a citizen? Would the government be obliged to inform the solicitor that they had already taken away that person’s citizenship without notice, if there persisted public interest reasons for withholding notice? Could the government just say that the person is barred from entry for undisclosed reasons, or something to that effect?

The likelihood is the government would elect to specify, as a matter of practice, that it will eventually give notice. The concern remains that NC19 may give the Home Secretary a wide discretion about delaying and even denying information about deprivation of British citizenship. 

Without knowing they have lost their citizenship, how could the person affected ever appeal?

Could a notice requirement be read into the law?

R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36 is the seminal House of Lords’ judgment on notice. At paragraph 30, Lord Steyn illustrates well why notice fundamentally matters: 

Until the decision in Salem it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law… Elementary fairness therefore supports a principle that a decision takes effect only upon communication.

Admittedly, at paragraph 31, Lord Steyn appears to acknowledge that a “specific and unmistakeable” Act of Parliament could negate the requirement of communicated notice. But NC19 only specifically removes the need for notice “before” a deprivation order. The silence of the amended section 40 about notice after deprivation may be interpretable as an implicit affirmation that notice should be given as soon as practicable once the deprivation order is made, to minimise unfairness.

Moreover, citizenship deprivations without notice would remain explicitly open to appeal. This would further justify the reading of subsection 40(5A) as permitting a meaningful right to notice (and so to appeal) after the deprivation order has been made. If not, subsection 40A(1) could become redundant. 

Denial of notice and international law

The 1961 Statelessness Convention has been signed and ratified by the UK. Article 8(4) of the Convention provides for a person being deprived of their citizenship to be given a “right to a fair hearing by a court or other independent body”. I am not sure whether denying notice before a deprivation order violates the 1961 Convention, but it does stretch the effectiveness of a “right to a fair hearing” — possibly to breaking point. 

Conclusion

NC19 would create an exception to the requirement to always give notice of citizenship deprivation. Rather than clarifying the Home Officer’s powers and correcting judicial meddling, the new clause may end up opening a whole new can of worms.

Atticus holds an LLM with a Specialism in Human Rights (Distinction) from University College London. He is currently studying to be a barrister. He has written for EJIL:Talk! and Legal Cheek. You can follow him on Twitter at @atticus_blick.