Leading citizenship and immigration lawyer Fahad Ansari, charts the history of citizenship deprivations, highlighting how Tony Blair’s government’s pursuit of one man has led to a situation where millions of British citizens have been rendered second class citizens, and whereby the Government is entirely above accountability for its decisions to deprive citizens of their most essential right; the right to belong.
This article is published as part of CAGE’s new series of expert essays ‘Perspectives on the War On Terror‘.
When the then Home Secretary David Blunkett informed Muslim preacher Abu Hamza of his intention to deprive him of his British citizenship in April 2003, there was barely a murmur of protest from the Muslim community or any of the numerous anti-racism groups in the UK. After all, Abu Hamza was not the most sympathetic of characters and had been subjected to one of the most grotesque and racist media campaigns of dehumanisation in the post 9-11 world in which his prominent disabilities became the focus of acceptable mockery and ridicule.
Press and politicians alike agitated for Abu Hamza’s deportation from the UK and ratcheted up the pressure on Blunkett to take action. The difficulty however was that Abu Hamza was a British citizen and had been such since 1986. He could not simply be banished from the country for expressing distasteful views. That would be medieval.
Abu Hamza Al-Masri, currently in US custody.
The ‘Hamza amendment’
The resulting impasse led to the New Labour government of Tony Blair introducing radical amendments to the British Nationality Act 1981 that would enable it to remove citizenship from any individual who had done anything ‘seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory’ [1]. This vague catch-all threshold replaced the previous criteria that consisted of specific actions that could result in one losing their citizenship – disloyalty to the Queen, assisting the enemy in a time of war, or being sentenced to imprisonment in any country to a term of at least 12 months.
“…this enormous expansion of the power of the Home Secretary to deprive someone of their citizenship was only introduced to enable the government to deprive (and deport) one man.”
That this change to the law was specifically created to target Abu Hamza is evident from the fact that he became the first target of the measure on 4 April 2003, a mere three days after the amendment came into force. It is worth reiterating that this enormous expansion of the power of the Home Secretary to deprive someone of their citizenship was only introduced to enable the government to deprive (and deport) one man. Until then, the deprivation power appeared to be moribund in practice with not a single individual having been stripped of their citizenship (other than under fraud provisions) for thirty years. Hence, the law came to be informally referred to as the ‘Hamza amendment’.
“In the early years of the post 9-11 hysteria, advocating for due process and the rule of law for those subjected to the violence of the State was a perilous path for even the greatest human rights and anti-racism activists.”
Perhaps it was because it was publicly perceived that this amendment would only be used to target Abu Hamza and nobody else that there was almost universal acquiescence in its passing. In the early years of the post 9-11 hysteria, advocating for due process and the rule of law for those subjected to the violence of the State was a perilous path for even the greatest human rights and anti-racism activists.
With notable exceptions, very few were willing to raise their heads above the parapet to object to this clear attempt to legislate for a racist process that would result in the deportation of British citizens identified as foreigners.
Had the British public taken a more principled approach at the time, it may have realised that the Hamza amendment also enabled the government, for the very first time, to strip away the citizenship of those who were born British, and not just those who naturalised, provided that this did not leave them stateless. Philip Hensher, writing in the Independent at the time, was one of the few voices of dissent at the time who was acutely aware of the racist underpinnings of the new law and the types of British citizens it would impact:
“It is a startling racist move: no-one can suppose for a second that this law will be invoked against, say, a former French national who protests against the conduct of the war in even the most virulent terms. It is, quite clearly, directed only at a certain class of person who holds a British passport; one with a brown skin and a non-European religion, and if they could extend these measures to apply to second and third-generation immigrants, there is no doubt that they would.”
Diverting legal challenges to secret courts
Had it paid more attention, the British public might also have learned that the Hamza amendment diverted appeals by individuals against decisions to strip them of their citizenship to the Special Immigration Appeals Commission (SIAC), a specialist tribunal that enables the government to rely on secret evidence that is not disclosed to the appellant nor even his lawyers. SIAC, initially created to hear appeals against deportation of foreign nationals involving sensitive intelligence material, was from this point onwards additionally entrusted with hearing the appeals of foreign-looking British nationals whose citizenship was being removed.
Critically, at the time that Abu Hamza filed his appeal, the law prohibited the Home Secretary from making a deprivation order until the courts had come to a final decision on any appeal [2]. He would therefore remain a British citizen throughout the judicial process and could not be deported in this time.
This was instrumental in SIAC allowing his appeal on the grounds that any future deprivation order would leave him stateless after it emerged that the Egyptian authorities had removed his Egyptian citizenship shortly after learning of the British government’s intention to do the same. With only his UK citizenship remaining, it would be unlawful for the Home Secretary to proceed to also deprive him of that citizenship.
It is no surprise then that on 4 April 2005, the law in this respect was repealed [3]. Since then, the Home Secretary has been able to issue the deprivation orders simultaneously with the notice of intention to deprive thereby thereby immediately stripping an individual of their citizenship and in the absence of any prior judicial oversight.
Lord Blunkett, former Home Secretary from 2001 – 2004
As Nisha Kapoor pointed out, the ‘deport now, appeal later’ policy of the hostile environment that came into play in 2014 had already been ably rehearsed in this other ‘counter-terrorism’ context.’ The government’s justification for these changes was that it would allow deprivation and deportation proceedings to take place concurrently. Yet in reality, it appears that most deprivation decisions since then have taken place after an individual has left the UK.
In a further attempt to demonstrate the foreignness of such citizens, in 2006, the government abandoned the ‘vital interests’ test, preferring ‘conducive to the public good’, arguing that the old test was ‘too high and the hurdles too great’ [4]. In so doing, it brought the test for deprivation in line with the test for deportation of foreign nationals. While there is no statutory definition of what this entails, the government’s policy describes it as covering cases of national security, war crimes, espionage, serious organised crimes, and unacceptable behaviours. Even this list of ‘unacceptable behaviours’ was initially drafted as criteria to deport and exclude foreign nationals. However, Home Office Minister Tony McNulty confirmed in parliament that the list would also be used as grounds for citizenship deprivation. The list is very broad, non-exhaustive and not limited to involvement in political violence.
“In a further attempt to demonstrate the foreignness of such citizens, in 2006, the government abandoned the ‘vital interests’ test, preferring ‘conducive to the public good’, arguing that the old test was ‘too high and the hurdles too great’.“
As barrister Amanda Weston QC pointed out over a decade ago, the revised wording is critical because of a House of Lords’ ruling in 2001 that the courts must show deference to the Secretary of State’s view of what is conducive to the public good in national security cases, severely limiting the extent to which the decision can be challenged [5]. The full implications of Weston’s warning would only be realised almost 20 years later when the Supreme Court upheld the government’s decision to prevent Shamima Begum returning to the UK reprimanding the lower court for not affording the Home Secretary’s assessment ‘the respect which it should have received’.
Depriving naturalised citizens even if that would leave them stateless
The final development of the deprivation legislation came with the Immigration Act 2014 which empowered the government to deprive naturalised citizens even if that would leave them stateless where they had acted in a manner seriously prejudicial to the vital interests of the UK, and where the Home Secretary had reasonable grounds for believing that they were able to become nationals of another country.
“…it is quite apparent that the very powers activists, campaigners and community groups are expressing outrage over have not only been in the armoury of the government for almost two decades, but have been utilised by numerous Home Secretaries…”
While the current mass mobilisation against Clause 9 of the Nationality and Borders Bill is welcome, it is quite apparent that the very powers activists, campaigners and community groups are expressing outrage over have not only been in the armoury of the government for almost two decades, but have been utilised by numerous Home Secretaries on over 150 occasions during this time [6]. It was the Hamza amendment from 2003 that enabled Sajid Javid to deprive Shamima Begum of her citizenship despite her being born British in the UK, solely on the basis of her having technically inherited Bangladeshi citizenship from her parents. It was the Hamza amendment that meant that her appeal against that decision would be to SIAC where secret evidence would be used against her. It was the repeal of section 40(6) of the Brtiish Nationality Act 1981 (also because of Abu Hamza) that resulted in her automatically being stripped of her citizenship before a court of law even reviewed the decision, leaving her abandoned for years in inhuman and degrading conditions in a Syrian detention camp.
It is curious how the use of these powers in recent years has been lost on many of those currently advocating against Clause 9 who seem to view it as a catalyst for deprivation to commence, rather than it being the pinnacle of a raft of legislation that has already compromised the citizenship of millions of citizens of foreign heritage. There have been numerous high-profile cases of British-born individuals who have been deprived of their citizenship.
It was under these powers that prominent humanitarian aid workers like Tauqir Sharif, Mohammed Shakiel Shabir and N3, all British born citizens, were deprived of their citizenship by Amber Rudd without any prior judicial oversight. These were the same powers that enabled Theresa May to deprive Mahdi Hashi of his citizenship after which he was kidnapped, tortured and rendered to the US without any due process. May would also (ab)use these powers to deprive Mohamed Sakr and Bilal al-Berjawi of their citizenship, after which they were extrajudicially killed by US drone strikes without the inconvenient legal complications associated with the US assassinating the citizens of one of its allies. And it is the Hamza amendment that continues to allow Priti Patel to deprive foreign looking British citizens of their nationality while they are outside the UK leaving them in exile regardless of whether or not she serves them with a notice or sends it to their last known address in the UK.
Tauqir ‘Tox’ Sharif delivering life saving aid in Syria
Clause 9 is a red herring. While in theory, notice of a decision is a vital element of due process, when set against a background of draconian powers that enable the government to treat British citizens as foreign nationals solely based on their ancestral heritage, it is little more than a minor inconvenience. Community groups and campaigners should be advocating for a complete roll-back of the deprivation regime that was introduced to target one man and which have since been used to create a second class of citizenship for people of colour, one that remains open for review and on par with expellable non-nationals.
“While in theory, notice of a decision is a vital element of due process, when set against a background of draconian powers that enable the government to treat British citizens as foreign nationals solely based on their ancestral heritage, it is little more than a minor inconvenience.“
Putting principles above personalities
Any such campaign will inevitably involve putting principles above personalities. In recent years, we have already seen how individuals convicted of involvement in child sexual exploitation gangs have been deprived of their citizenship on the basis that it constituted serious organised crime and therefore fell within the ‘conducive to the public good’ policy [7]. Yet, like with Abu Hamza, there has been barely a whimper of opposition to its use in this manner. Whether this is due to apathy, complicity or fear of guilt by association, silence only serves to establish the foundation for a wider application of the power in future. It is not outside the realms of possibility for a time to come when third generation British citizens of foreign ancestry will be deprived of their citizenship following convictions of particularly horrific knife crimes or gang violence on the back of racism-infected media hysteria against the perpetrators.
Unless those professing to be anti-racism activists and human rights campaigners are prepared to take a principled approach to these issues, we are doomed to repeat the errors of the past.
For make no mistake: we were all deprived of our citizenship the day they tried to deprive Abu Hamza of his.
References
[1] Nationality, Immigration and Asylum Act, s.4
[2] British Nationality Act 1981, s.40(6)
[3] The Asylum and Immigration Act 2004 Schedule 2
[4] Baroness Ashton of Upholland, HL Deb 14 March 2006 col 1190
[5] Rehman [2001] UKHL 47
[6] The Home Office’s Transparency Reports on Disruptive and Investigatory Powers provide numbers of deprivations on the ‘conducive’ ground over the period 2010-2018: 24 between May 2010 and the end of December 2013; four in 2014; five in 2015; 14 in 2016; 104 in 2017, and 21 in 2018. The numbers for 2019 and 2020 are not available yet but would include Shamima Begum, Jack Letts, and many of the individuals currently detained in the SDF detention camps in Syria.
[7] It will be interesting to see if socialite Ghislaine Maxwell, who also carries French and American citizenship, will have her citizenship revoked if found guilty of her involvement in similar crimes.
Credits:
Images are used under creative commons licences courtesy of Centre for American Progress and Policy Exchange on Flikr, and Wikipedia.
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