WP_Post Object ( [ID] => 56409 [post_author] => 23 [post_date] => 2017-09-20 14:21:00 [post_date_gmt] => 2017-09-20 13:21:00 [post_content] => [caption id="attachment_23049" align="alignnone" width="1024"]Strasbourg Credit: Fred Schaerli[/caption]The compatibility of citizenship deprivation with human rights protections under Article 8 of the European Convention on Human Rights, the right to private and family life, was considered by the European Court of Human Rights in the case of K2 v the United Kingdom (Application No 42387/13).K2 complained to the ECtHR that the decisions to deprive him of his British citizenship while outside the UK and thus also exclude him from the UK breached his right to respect for his family and private life, amounted to an attack on his reputation and was discriminatory because he was a dual national. The case had proceeded through SIAC and the closed evidence process.The Court held that arbitrary denial or revocation of citizenship is capable in some circumstances of engaging article 8 due to its effect on the private life. This is consistent with observations made in previous cases such as Karassev v Finland, no. 31414/96.The Court outlined two issues to be considered when determining such a decision’s effect on an applicant’s article 8 rights. The first was whether the revocation of citizenship was arbitrary. The second was the effect of the revocation for the applicant.

Is the deprivation arbitrary?

In this case the court found that the deprivation was conducted “in accordance with the law” and that the Home Secretary had acted swiftly and diligently. The applicant had left the UK in October 2009, subsequently engaging in terrorism-related activities in Somalia. The Home Secretary had deprived him of citizenship in June 2010.The Court noted that, although some aspects of the case had been kept secret, it had been known to the Special Advocates in SIAC, and K2 was broadly aware of the nature of the case against him. On this point, the Court noted that it had previously held that similar SIAC proceedings had sufficient procedural safeguards to be compliant with article 8 in I.R. and G.T. v. the United Kingdom, nos. 14876/12 and 63339/12.K2 also argued that he could not properly make case from abroad, because he feared that telecommunications could be intercepted by Sudanese authorities, which may lead to him being harmed. The Court rejected this argument on the basis that there was no obligation to facilitate in country appeals, the issue had already been considered and rejected by SIAC on closed materials and the procedural difficulties were of K2’s own making.

Effect of revocation

The Court also considered the consequences for K2 of the revocation of his citizenship in assessing any alleged interference with his article 8 rights. The Court noted that entitled to obtain a Sudanese passport, and had done so. The Court also noted that the SIAC had found that K2 had left the UK some time prior to the decision to deport him. His wife and family were no longer living in the UK and were able to go to Sudan. Finally, the applicant’s own family were able to visit him reasonably often and did so.Therefore the Court held K2’s Article 8 claim to be manifestly ill-founded.

Discrimination

K2 also complained under article 14 read with article 8 that he had been treated differently from British citizens considered a threat to national security because he had dual nationality.However, K2 had not raised this point in the domestic courts. The Court held that he had not exhausted domestic remedies and therefore held this complaint to be inadmissible.The applicant raised a second point on article 14. He complained that he had been treated differently from non-national residents, who had a right of suspensory appeal against a decision to revoke their leave to remain.The Court rejected this argument. He had been denied an in country appeal because he had already left the UK when the decision to deprive him of his citizenship was made. The basis for the differential treatment was not that he was a British citizen. The Court pointed out that a non-national whose leave to remain was cancelled would too not be allowed to return to pursue an appeal. The complaint was therefore manifestly ill-founded, and held to be inadmissible.A case on different facts might potentially succeed, but would always face the hurdle under Article 8 that it is a balanced right and that where a person has been found to be a threat to national security that is likely to override whatever Article 8 rights might be in play on different facts. [post_title] => Compatibility of deprivation with human rights laws [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => compatibility-deprivation-human-rights-laws [to_ping] => [pinged] => [post_modified] => 2017-09-20 14:21:00 [post_modified_gmt] => 2017-09-20 13:21:00 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=56409 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 56408 [post_author] => 23 [post_date] => 2017-09-20 14:19:29 [post_date_gmt] => 2017-09-20 13:19:29 [post_content] => immigration tribunal york houseThere is a right of appeal against deprivation of citizenship. There is no appeal against nullification, although an application for judicial review can be brought on limited lawfulness grounds.

Process and law

The process of citizenship deprivation is as follows:
  1. Secretary of State gives notice of intention to deprive.
  2. Subject of notice may lodge appeal (tribunal or SIAC depending on circumstances).
  3. If the appeal fails, the Secretary of State makes the deprivation order
  4. The person ceases to be a British citizen.
  5. The person also has no residual immigration status; if the person held ILR before becoming British, for example, that ILR was lost when the person became British and is not resurrected when the person ceases being British.
By default, the right of appeal originates in section 40A of the BNA 1981:
40A Deprivation of citizenship: appeal(1) A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to the First-tier Tribunal(2) Subsection (1) shall not apply to a decision if the Secretary of State certifies that it was taken wholly or partly in reliance on information which in his opinion should not be made public—(a) in the interests of national security,(b) in the interests of the relationship between the United Kingdom and another country, or(c) otherwise in the public interest.(3) The following provisions of the Nationality, Immigration and Asylum Act 2002 (c.41) shall apply in relation to an appeal under this section as they apply in relation to an appeal under section 82 of that Act–[...](c) section 106 (rules), […](d) section 107 (practice directions), and(e) section 108 (forged document: proceedings in private).

Scope of appeal

In a series of three cases the tribunal has held that this appeal is a wide ranging one which is not constrained by a statutory limit on the arguable grounds of appeal, unlike other immigration appeals. The cases are:
  1. Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 439 (IAC),
  2. AB (British citizenship: deprivation; Deliallisi considered) Nigeria [2016] UKUT 451 (IAC)
  3. Ahmed and Others (deprivation of citizenship) (Pakistan) [2017] UKUT 118 (IAC)
Essentially, the power to deprive a person of citizenship under section 40 is a discretionary power (the language of “may” rather than “must” or “shall”) and the right of appeal under section 40A concerns whether or not that discretion should be exercised differently.Human rights considerations are relevant as are the reasonably foreseeable consequences for the appellant. If the Secretary of State has stated that the appellant will be granted some sort of leave to remain if the deprivation order is finalised, the tribunal will take that into account (and this reduces the immediate impact of deprivation). If the Secretary of State intends to remove the person following finalisation of the deprivation order, that will also be taken into account.

National security cases

However, if the Secretary of State certifies that the decision was based on information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country or otherwise in the public interest, the appeal can only be brought instead under section 2B of the Special Immigration Appeals Commission Act 1997:
2B 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).
If the appeal lies to the Special Immigration Appeals Commission (SIAC) then the closed material procedure can be engaged and the appellant will not have access to all of the evidence on which the decision was based. A security vetted Special Advocate is appointed for the appellant, and the Special Advocate can see the closed material but may not communicate with the appellant once the case has begun in earnest. The appellant has to trust the Special Advocate, and the Special Advocate has to do his or her best with the material disclosed but is unable to take instructions from the appellant.In practice, most deception based appeals will probably be “normal” appeals to the immigration tribunal and most public good based appeals will probably be appeals to SIAC, particularly appeals resulting in statelessness. There are exceptions, however, as in the Ahmed case involving the Rochdale gang.An appeal to the immigration tribunal is a full merits appeal involving consideration of all relevant factors where the tribunal can make its own decision about the outcome.An appeal to SIAC or an application for judicial review are restricted to considering whether the decision under challenge was a lawful one. The judge does not make his or her own decision on the merits and simply disagreeing with such a decision is not sufficient grounds for overturning it. [post_title] => Bringing a legal challenge [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => bringing-legal-challenge [to_ping] => [pinged] => [post_modified] => 2017-09-20 14:19:29 [post_modified_gmt] => 2017-09-20 13:19:29 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=56408 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 56347 [post_author] => 23 [post_date] => 2017-09-19 15:15:50 [post_date_gmt] => 2017-09-19 14:15:50 [post_content] => Home Office policy defines the scope of “public good” as follows:
“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 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”.Ahmed and the later more ambiguous case of Pirzada stand out from the other reported deprivation cases. Reported citizenship deprivation cases typically involve alleged Islamic extremists alleged to be personally involved in terrorism related activity. In all these other cases the subject of the order was alleged to be a danger to national security and could therefore be classed as being involved in crimes against the state, the historical justification for banishment. In these other cases, the previous 1981 and 2003 thresholds for deprivation of citizenship would arguably have been engaged. Ahmed was the first case where the new, amended 2006 power has really been decisive in permitting deprivation to occur. Whether it is the first in a new line of cases or genuinely an exception remains to be seen.There is one reported nationality case involving refusal of naturalisation to the family members of a known terrorist simply because of the family connection and to act as a deterrent in future cases. 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:
In view of the statutory focus on the individual applicant, and the very broad express power which the SSHD has to formulate the requirements for measuring the good character of the applicant, and to refuse naturalisation if not satisfied of it, I do not consider that Parliament conferred the discretionary power for the pursuit of broad and general public policy objectives
This was not a deprivation case but had it succeeded the Secretary of State might conceivably have pursued the deterrent approach in deprivation cases. The Secretary of State might still attempt to do so despite the outcome of that case. The “conducive to the public good” power is so unconstrained by statutory language it could potentially be construed as sufficiently broad to include deterrent effect, after all. [post_title] => Definition of "public good" in deprivation cases [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => definition-public-good-deprivation-cases [to_ping] => [pinged] => [post_modified] => 2017-09-19 15:15:50 [post_modified_gmt] => 2017-09-19 14:15:50 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=56347 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 56346 [post_author] => 23 [post_date] => 2017-09-19 15:14:16 [post_date_gmt] => 2017-09-19 14:14:16 [post_content] => It is not terribly easy to distinguish between a case in which nullification will be used or deprivation. However, the consequences and route of legal challenge is very different depending on which process is employed by the Home Office.
NullificationDeprivation
The person never held British citizenship at all. This may affect the status of family members. For example, if a spouse applied for naturalisation on the basis of that person’s status, the spouses status may also be under threat, and if a child was thought to have been born British because it was thought the person was British, the child may not be British at all.In such cases, British passports can be and are cancelled.There is no right of appeal but an application for judicial review can be pursued on limited lawfulness grounds.The person was British but ceases to be so when the deprivation order is made. This does not have status implications for family members.There is a right of appeal under section 40A of the BNA 1981 or section 2 of the SIACA 1997.The first of these is a full merits appeal including consideration of the reasonably foreseeable consequences of deprivation (i.e. whether forced to leave UK or not) but appeals to SIAC are on lawfulness grounds only.
The claimants in the case of R (On the Application of Hysaj & Ors) v Secretary of State for the Home Department [2015] EWCA Civ 1195 have been granted permission to appeal to the Supreme Court on exactly this issue. Their cases, involving naturalisation as British in a completely false identity, so far have been held to be nullity cases but they have argued that they should have been treated as deprivation cases.The situation of family members of a person whose citizenship is nullified was addressed in R. v Secretary of State for the Home Department Ex p. Ejaz (Naheed) [1994] Q.B. 496 and Bibi v Entry Clearance Officer [2007] EWCA Civ 740; [2008] I.N.L.R. 683. In short, where there was a statutory power to confer British citizenship on the person then British citizenship will be retained. There is a general power for the Secretary of State to register any child as British, so children would not normally be affected by nullification of the citizenship of a parent.According to the Home Office nationality policy document  Deprivation and Nullity of British citizenship, nullification is used where the person concerned:
  1. Is not the intended recipient of the grant, for example because he or she used used a false name, date or place or birth
  2. Has created an entirely false identity
  3. Is using someone else’s identity
  4. Was already a British citizen by birth but later applied for registration or naturalisation
In other cases where deception comes to light later, deprivation action would be considered, for example where:
  1. false details were given in an asylum claim or an application for leave which affected the person’s capacity to meet the residence and/or good character requirements for registration or naturalisation
  2. there were undisclosed convictions or other information affecting capacity to meet good character requirement
  3. a marriage is later found invalid or void which would have affected eligibility
When it comes to exercise of the deception deprivation power, paragraph 55.4 of the policy sets out several definitions, including:
55.4.1 "False representation" means a representation which was dishonestly made on the applicant’s part i.e. an innocent mistake would not give rise to a power to order deprivation under this provision.55.4.2 "Concealment of any material fact" means operative concealment i.e. the concealment practised by the applicant must have had a direct bearing on the decision to register or, as the case may be, to issue a certificate of naturalisation.55.4.3 “Fraud” encompasses either of the above.
The policy makes clear that the impugned behaviour must be directly material to the decision to grant citizenship. See paragraph 55.7:
55.7.3 If the fraud, false representation or concealment of material fact did not have a direct bearing on the grant of citizenship, it will not be appropriate to pursue deprivation action.55.7.4 For example, where a person acquires ILR under a concession (e.g. the family ILR concession) the fact that we could show the person had previously lied about their asylum claim may be irrelevant. Similarly, a person may use a different name if they wish (see NAMES in the General Information section of Volume 2 of the Staff Instructions): unless it conceals criminality, or other information relevant to an assessment of their good character, or immigration history in another identity it is not material to the acquisition of ILR or citizenship. However, before making a decision not to deprive, the caseworker should ensure that relevant character checks are undertaken in relation to the subject’s true identity to ensure that the false information provided to the Home Office was not used to conceal criminality or other information relevant to an assessment of their character.
In practice, there are few reported cases of deception deprivations. Most cases involving deception involve fundamental questions of identity and are dealt with as nullification cases. [post_title] => Difference between deception and nullification [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => difference-deception-nullification [to_ping] => [pinged] => [post_modified] => 2017-09-19 15:14:16 [post_modified_gmt] => 2017-09-19 14:14:16 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=56346 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 56345 [post_author] => 23 [post_date] => 2017-09-19 15:11:15 [post_date_gmt] => 2017-09-19 14:11:15 [post_content] => The majority of reported cases on loss of British citizenship involve nullification and this line of cases stretches back to the 1980s. Hysaj is a modern example but at the time of writing was under appeal to the Supreme Court.
  • Hysaj and Others v SSHD [2015] EWCA Civ 1195. The grants of citizenship status in linked cases were found to be a nullity because the claimants had manufactured entirely false identities (name, nationality, date of birth). This case is currently under appeal to the Supreme Court.
  • Sultan Mahmood [1981] QB 58. The grant of citizenship status was found to be a nullity because the claimant had adopted another person’s identity.
  • Parvaz Akhtar [1981] QB 46. The grant of citizenship status was found to be a nullity because the claimant had adopted another person’s identity. The claimant was believed to be using a false identity and was not in fact the son of Waris Ali, a British citizen, as he had claimed.
[post_title] => Examples of citizenship nullification [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => examples-citizenship-nullification [to_ping] => [pinged] => [post_modified] => 2017-09-19 15:11:15 [post_modified_gmt] => 2017-09-19 14:11:15 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=56345 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 56343 [post_author] => 23 [post_date] => 2017-09-19 15:07:46 [post_date_gmt] => 2017-09-19 14:07:46 [post_content] => There are few examples of reported cases involving deception in the acquisition of British nationality leading to deprivation action. Most deception cases are processed by the Home Office as nullification cases.
  • Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 439 (IAC). The appellant lied on entry regarding his nationality and made a completely false asylum claim which succeeded, leading directly to a grant of ILR because of those lies and then to naturalisation.
  • AB (British citizenship: deprivation; Deliallisi considered) Nigeria [2016] UKUT 451 (IAC). AB arrived in the UK from Nigeria carrying class A drugs and was convicted and sentenced to 7 years. She later escaped from open prison. She adopted a false nationality and claimed asylum on a false basis. The asylum claim was rejected but she was granted ILR in this false identity and then later naturalised. The authorities were later informed of her deception by another party.
  • Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 (IAC). The appellant lied about his age on entry to the UK, thereby securing a short period of leave. His application to extend his leave was undecided by their Home Office for five years and Indefinite Leave to Remain was eventually granted because of the delay, after which he naturalised. When the deception on age emerged deprivation action was commenced.
[post_title] => Examples of use of deception deprivation power [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => examples-use-deception-deprivation-power [to_ping] => [pinged] => [post_modified] => 2017-09-19 15:07:47 [post_modified_gmt] => 2017-09-19 14:07:47 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=56343 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54734 [post_author] => 460 [post_date] => 2017-07-21 17:31:35 [post_date_gmt] => 2017-07-21 16:31:35 [post_content] => Feedback always welcome![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Feedback [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => feedback-8 [to_ping] => [pinged] => [post_modified] => 2017-07-21 17:31:35 [post_modified_gmt] => 2017-07-21 16:31:35 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54734 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54733 [post_author] => 460 [post_date] => 2017-07-21 17:29:38 [post_date_gmt] => 2017-07-21 16:29:38 [post_content] => This month starts with the current waiting times for immigration appeals, moving on to give some quick mentions to some big blog posts we put out in May and then covering a load of cases from Strasbourg, the CJEU, several from the Court of Appeal and then quite a few at tribunal level as well.The material is all drawn from the May 2017 blog posts on Free Movement.If you would like to claim CPD points for reading the material and listening to this podcast, sign up here as a Free Movement Member. There are now over 40 CPD hours of training materials available to members. You can find all the available courses here.If you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement. Using a mobile device and subscribing has the advantage that each new podcast can be automatically downloaded for listening to on the go.To access previous Free Movement immigration update podcasts click here.These are the posts I give "shout outs" to at the start of the podcast but do not cover in depth: The main content of the downloadable 25 minute audio podcast follows the (non chronological) order of content below:  [audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2017/07/FM-podcast-May-2017.mp3"][/audio]  [post_title] => Immigration update May 2017 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => immigration-update-may-2017 [to_ping] => [pinged] => [post_modified] => 2017-07-21 17:29:38 [post_modified_gmt] => 2017-07-21 16:29:38 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54733 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54669 [post_author] => 460 [post_date] => 2017-07-21 09:29:40 [post_date_gmt] => 2017-07-21 08:29:40 [post_content] => Feedback is always welcome![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Feedback Form [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => feedback-form-23 [to_ping] => [pinged] => [post_modified] => 2017-07-21 10:08:49 [post_modified_gmt] => 2017-07-21 09:08:49 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54669 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54229 [post_author] => 23 [post_date] => 2017-07-21 09:29:05 [post_date_gmt] => 2017-07-21 08:29:05 [post_content] => Welcome to the April 2017 immigration update. This month we cover the increase in immigration fees, several nationality law issues, run though the most important cases we saw in April and end with some mentions for some new or amended Home Office policy documents, including on permanent residence applications, and for a mega-post on the general grounds for refusal in the immigration rules.The material is all drawn from the April 2017 blog posts on Free Movement.If you would like to claim CPD points for reading the material and listening to this podcast, sign up here as a Free Movement Member. There are now over 40 CPD hours of training materials available to members. You can find all the available courses here.If you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement. Using a mobile device and subscribing has the advantage that each new podcast can be automatically downloaded for listening to on the go.To access previous Free Movement immigration update podcasts click here.The downloadable 25 minute audio podcast follows the (non chronological) order of content below: [audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2017/07/FM-podcast-April-2017.mp3"][/audio] [post_title] => Immigration Update April 2017 [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => april-2017-immigration-update-podcast [to_ping] => [pinged] => [post_modified] => 2017-07-21 10:11:40 [post_modified_gmt] => 2017-07-21 09:11:40 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?p=54229 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54690 [post_author] => 23 [post_date] => 2017-07-20 14:38:52 [post_date_gmt] => 2017-07-20 13:38:52 [post_content] => All but one of the reported cases involving use of the public good deprivation power involve activities which engage questions of national security. These are of the character of actual or potential crimes against the state. The last of the cases, Ahmed, is of a different character, involving instead serious crimes against specific individuals in the UK.Arguably the national security cases would engage the earlier thresholds for deprivation of citizenship on the grounds of behaviour set out in statute before 2006. The Ahmed case is the first example of a reported case where the threshold in existence since 2006 was necessary to pursue deprivation action against those concerned.
  • M2 (Deprivation of Citizenship : Substantive) [2015] UKSIAC SC_124_2014. An Afghan national who acquired British citizenship by naturalisation in 2011, he was accused of being a risk to national security because of family and personal connections to prominent international terrorists.
  • K2 v. the United Kingdom (Application no. 42387/13). Arrived in UK as a child from Sudan, naturalised as British in 2000, it was alleged he was involved in Somalia in terrorism-related activities linked to Al- Shabaab.
  • S1, T1, U1 & V1 v Secretary of State for the Home Department [2016] EWCA Civ 560. Four members of a family were all deprived of their citizenship on the basis they were active members of a terrorist organisation, Lashkar-e-Tayibba, a proscribed terrorist organisation in the United Kingdom, the United States and Pakistan, and were supporters of Al Qaeda.
  • Pham v Secretary of State for the Home Department [2015] UKSC 19. A Vietnamese national entered the UK as a child with family and naturalised as British in 1995. At 21 he converted to Islam. Between December 2010 and July 2011 he was in the Yemen, where, according to the security services but denied by him, he was said to have received terrorist training from Al Qaida. The security services assessed that at liberty he would pose an active threat to the safety and security of the UK.
  • Ahmed and Others (deprivation of citizenship) (Pakistan) [2017] UKUT 118 (IAC). The appellants had acquired British nationality by naturalisation and retained their Pakistani nationality; they were dual nationals. Often referred to as the Rochdale gang, they had been convicted of the trafficking of children for sexual exploitation, rape, conspiracy to engage in sexual activity with children and sexual coercion. Their sentences ranged from 6 to 19 years imprisonment. The sentencing judge highlighted the scale and gravity of the offending, the protracted period involved (2008 - 2010), the ages of the victims - they were young teenagers - and the factors of callous, vicious and violent rape, humiliation and financial gain.
  • Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 196 (IAC). The appellant was an Afghan national and had entered the UK in 2001 and claimed asylum. His claim was refused on the grounds of deception but he was granted limited leave. Before his leave expired he successfully applied for indefinite leave to remain. He then successfully applied for naturalisation at a British citizen in 2008. The appellant was convicted of various offences connected to posing as a qualified medical practitioner and sentenced to 17 months imprisonment. The rather confused decision to deprive him of British citizenship was taken on grounds of deception but principally related to matters occurring after the grant of naturalisation. In truth the decision was probably in substance one based on public good but where a Home Office official had failed to apply sufficient rigour to the case.
[post_title] => Examples of use of public good deprivation power [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => examples-use-public-good-deprivation-power [to_ping] => [pinged] => [post_modified] => 2017-09-19 15:09:45 [post_modified_gmt] => 2017-09-19 14:09:45 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54690 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54688 [post_author] => 23 [post_date] => 2017-07-20 14:38:00 [post_date_gmt] => 2017-07-20 13:38:00 [post_content] => The use of citizenship deprivation powers has grown considerably in recent years. Use of the power was virtually unknown until 2010, when the Coalition Government came to power. As we will see, this is a classic example of a legal power being expanded, being used moderately at the outset but then immoderately once ease and convenience of use becomes understood by officials and politicians.For the executive, ease and convenience means being able to use the power
  1. when desired
  2. against specific individuals desired and
  3. with no legal or political blowback.
The modern citizenship deprivation power meets and indeed exceeds these criteria, particularly since officials hit on the idea of exercising the power when a person is outside the UK. In such cases the affected individual does not initially know the power has been used against them, is therefore often out of time to lodge any legal action and is excluded from the UK, making it harder to communicate with lawyers or organise any press attention or campaign. It also transforms the question from one of future banishment to one of future admission where the individual appears to be challenging the status quo rather than the state. Given the natural conservatism of the judiciary and often the press, this changed equation considerably favours the state.Until 2006 the power to deprive a person of British citizenship on the grounds of behaviour was almost moribund, having been used against perhaps a handful of Russian spies. But 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.According to a Freedom of Information request by the author, the total figures are as follows:The figures provided for 2006, 2009 and 2010 were actually “less than 5” but are represented in the chart with “2” as a nominal alternative.There are actually two separate legal powers used to effect these deprivations.The first is section 40(2) of the British Nationality Act 1981, which permits deprivation where the Secretary of State “is satisfied that deprivation is conducive to the public good.”The second is section 40(3) of the British Nationality Act 1981, which permits deprivation where 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 totals for the period 2006-2015 were according to the FOI request as follows:
Section 40(2)Section 40(3)Total
364581
A breakdown of the use of these separate powers by year is not available.Reported cases provide us with examples of what sort of behaviour might attract use of what we might call for shorthand the (i) public good and (ii) deception deprivation powers.However, these figures do not necessarily reveal the full scale of removal or withdrawal of British citizenship from individuals. This is because of the separate use of a process known as “nullification”. This is a declaration by the Secretary of State that a person never in truth had British citizenship at all, even though that person has been recognised as a British citizen and granted a British passport. This power is not directly a statutory one, it is based on case law and on the argument that citizenship can only be conferred in accordance with statute and where the conditions were not really met in truth, the person never really acquired British citizenship in the first place.Some of these nullification cases involve mistakes by British officials and some involve active deception by the individuals concerned. I dealt with one case where the person had as a child been issued with a British passport in the 1980s by a British embassy abroad, it has been renewed twice but on the third occasion officials took the view that the original passport had been wrongly issued, the person was not in fact a British citizen and never had been and no further British passports would be issued. Officials were correct and there was no remedy available to the person concerned. [post_title] => Numbers and types of deprivation cases [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => numbers-types-deprivation-cases [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:38:00 [post_modified_gmt] => 2017-07-20 13:38:00 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54688 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54687 [post_author] => 23 [post_date] => 2017-07-20 14:33:56 [post_date_gmt] => 2017-07-20 13:33:56 [post_content] => The current test to be met to justify stripping a British citizen or his or her citizenship is, at least in terms of the legal language in which it is expressed, exactly equivalent to the power to deport foreign nationals set out in the Immigration Act 1971 at section 3(5):
A person who is not a British citizen is liable to deportation from the United Kingdom if … the Secretary of State deems his deportation to be conducive to the public good.
This is surprising. One might expect a significantly higher hurdle to be met to justify stripping a citizen of his or her rights compared to deporting a foreign national. This is all the more so when one considers that deportation is temporary and can be reversed whereas citizenship deprivation is permanent and there are statutory exceptions to deportation that do not apply in deprivation cases. It could even be argued that the protection against deportation is superior to protection against citizenship deprivation.A deportation involves removal from the UK and exclusion for the duration of the order. The Immigration Rules provide that a deportation order will normally be maintained for 10 years. An application for revocation can be made before the 10 year period expires and can be granted on an exceptional basis. In contrast, deprivation of citizenship is permanent.There are additional legal provisions encouraging deportation in some defined circumstances and excepting a person from deportation in other circumstances. Under the UK Borders Act 2007, any sentence of imprisonment of 12 months or more will trigger consideration of deportation action. Exceptions are built into that Act, though, for example if deportation would breach the person's human rights, and further more detailed exceptions based on relationships with a spouse and/or child and long residence are built into the Immigration Rules and Part 5A of the Nationality, Immigration and Asylum Act 2002.There is no equivalent in deprivation cases to the automatic trigger of consideration, but nor are there any statutory exceptions set out for deprivation cases. While it would be surprising and illogical for the Secretary of State to pursue deprivation action against a British citizen for behaviour which would not trigger deportation if committed by a foreign national, the statutory power itself would seem to allow for this perverse outcome.It could be argued that the concept of “public good” is very different in the context of deprivation of citizenship compared to deportation, however, particularly if it is recalled that in the original version of section 40 the public good test was if anything an additional constraint on the Secretary of State. Public good might be argued to include the public good in maintaining citizenship as a special status and protecting citizens against deprivation of their fundamental status except in extreme cases of crimes against the state.This is not an argument that has been tested and the Ahmed case is not an encouraging precedent. [post_title] => Deprivation and deportation compared: meaning of "public good" [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => deprivation-deportation-compared-meaning-public-good [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:33:56 [post_modified_gmt] => 2017-07-20 13:33:56 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54687 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54686 [post_author] => 23 [post_date] => 2017-07-20 14:33:01 [post_date_gmt] => 2017-07-20 13:33:01 [post_content] => Section 40 now provides in full as follows (with some commentary):
40 Deprivation of citizenshipComments
(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.Definitions. Deprivation power not restricted to British citizens but also other British nationals. No known examples of use, though.
(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.Public good deprivation power, applies to all British citizens including by birth.Previously (see further below):
  • 1981-2002 was “shown himself by act or speech to be disloyal or disaffected towards Her Majesty”, unlawfully trading, communicating or assisting an enemy in a war or sentenced to 12 months imprisonment in last 5 years
  • 2002-2006 was whether had done anything seriously prejudicial to the vital interests of the UK or territories
(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.Deception deprivation power.Materially identical to power under British Nationality Act 1948. Only applies to those who acquired by registration or naturalisation. Nullification process might apply where person falsely claimed citizenship on basis of birth.
(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.Statelessness protection, but subject to the exception below.
(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.Added by the Immigration Act 2014. A person can be deprived of citizenship on public good grounds (not deception grounds) even if it would make him stateless if:
  • the person acquired citizenship by naturalisation (those born British or registered as adults/children are protected)
  • an additional enhanced test is applied of conducting him or herself “in a manner which is seriously prejudicial to the vital interests of the United Kingdom”
  • the person can acquire another nationality in future, in the reasonable belief of the Secretary of State
(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).Procedural protection. This is commonly sidestepped by the Home Office by serving the written notice to the person’s UK address when the person is outside the UK. This prevents real notice and prevents re-entry to the UK.
(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.Enables deprivation on deception grounds if citizenship obtained by registration or naturalisation prior to 1 January 1983.
[post_title] => 2006 onwards: the current power [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => 2006-onwards-current-power [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:33:01 [post_modified_gmt] => 2017-07-20 13:33:01 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54686 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54685 [post_author] => 23 [post_date] => 2017-07-20 14:32:08 [post_date_gmt] => 2017-07-20 13:32:08 [post_content] => The Nationality, Immigration and Asylum Act 2002 substituted an entirely new version of section 40. In this 2002 version, deprivation on the basis of behaviour was set out at section 40(2) and came into force on 1 April 2003:
The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of—(a) the United Kingdom, or(b) a British overseas territory.
This version of section 40 also removed the protection against deprivation for individuals born British.Section 40(2) was amended again by the Immigration, Asylum and Nationality Act 2006 as of 16 June 2006 to the current version and further amendments were made to section 40 by the Immigration Act 2014 to include a new section 40(4A), which allows deprivation even where it might cause statelessness in certain circumstances. [post_title] => 2002 to 2006 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => 2002-to-2006 [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:32:08 [post_modified_gmt] => 2017-07-20 13:32:08 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54685 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw )