By Frances Webber
The courts, whose primary role ought to be to defend principles of fairness, are failing when it comes to removal of citizenship from British Muslims.
The fate of Mahdi Hashi, Mohammed Sakr and Bilal al-Berjawi, which received national press coverage in February,[i] brought to public awareness the way British Muslims, some born in Britain, have found themselves stripped of their citizenship while they are abroad, unable either to return home or to seek Britain’s diplomatic protection from rendition or worse.
Former Camden care worker Mahdi Hashi disappeared while visiting Somalia. His family in the UK approached the Foreign Office for help in finding him – only to be told that he had been stripped of his citizenship and was no concern of theirs. He reappeared five months later in a high-security prison in the US, awaiting trial on allegations of involvement with Islamist group al-Shabaab. It turned out that after losing his citizenship he had been abducted to Djibouti and made to witness torture in jail there before being handed over to the CIA and taken to the US. Mr Hashi had previously alleged that the British security services had tried to recruit him as an informer.[ii] The timing of the order removing his citizenship and his disappearance and subsequent reappearance in a US prison has given rise to allegations of collaboration between the UK and US authorities.
Stripped of protection – and killed
Rendition is however not the worst that can happen to those stripped of their citizenship. According to the Bureau of Investigative Journalism report for the Independent,[iii] two men have been killed by drones following removal of their British citizenship. Mohamed Sakr was born in Newham, though being of Egyptian descent. Bilal al-Berjawi, a British-Lebanese citizen, was brought to the UK as a baby and grew up in London. The two men left for Somalia in 2009. They both had their British citizenship removed in September 2010, following allegations of involvement with al Shabaab. Sakr was killed in a US drone strike in February 2012. Berjawi had been killed the previous month – within hours of a phone call with his wife in London, who had recently given birth to their son, prompting suspicions that British intelligence provided the US drone operators with his co-ordinates, read from his phone.
These events have been made possible by changes wrought in citizenship law over the past decade or so, which have made it extremely easy for the home secretary to strip people of their British citizenship, and much more difficult for those affected to challenge the decisions. Taken together with the secret evidence regime which deprives those affected of the detailed reasons for the decisions, the provisions are marked by their complete disregard for principles of fairness. But the courts have failed to intervene.
The old regime: fairness paramount
It was not always so. Nearly twenty years ago, in November 1993, the Court of Appeal ruled that British citizenship was too important to be removed without a full, formal procedure giving the person affected the right to argue against deprivation. The case, in which I was involved, began with the arrest the previous year of Mrs E, a naturalised British citizen of Pakistani origin, and her four children, the youngest of whom was six months old. Home Office officials claimed their citizenship was a nullity and they were illegal entrants, because the ‘British citizen’ Mrs E had married, enabling her to naturalise, had turned out to be an impostor. For the Court, though, once citizenship had been conferred, it could not be ‘nullified’: whatever someone had done, the idea of stripping someone of his or her citizenship without all the safeguards of due process was anathema.[iv]
Now, twenty years on, with the agenda apparently dictated by the security services, concern for the requirements of fairness has gone out of the window. British citizens have found themselves suddenly stripped of their citizenship while abroad, excluded from the UK with no right to return even to conduct an appeal. It has become easier to strip someone of citizenship than to deport foreign nationals – which may be why officials wait until the British citizens they are targeting for deprivation have left the country to pounce with their deprivation and exclusion orders. And the higher courts, far from protecting citizens’ rights, have given these practices the green light.
How has this happened?
Barrister Amanda Weston described the legal changes which have made deprivation of citizenship easier in an important article in 2011,Deprivation of citizenship by stealth.[v] She explained how before 2002, those born British could never have their citizenship removed, but in that year new Labour extended deprivation to British-born citizens, provided they would not become stateless as a result. According to the Independent report, five of the sixteen men deprived of citizenship while abroad since the coalition came to power were born in Britain.
The 2002 changes also broadened the criteria for deprivation, from the previous requirement of acts or speeches revealing disloyalty or disaffection towards the Queen, or trading with or otherwise assisting the enemy in wartime, to any conduct believed by the home secretary to be ‘seriously prejudicial to the vital interests’ of the UK. The extension of deprivation provisions to those born in the UK, and the power to deprive solely on the minister’s belief, without the need to prove criminal conduct, concerned MPs during the Bill’s passage; Lib Dem MP Simon Hughes argued strongly against the provisions, while Tory home affairs spokesman Humfrey Malins MP worried that they gave the home secretary too much power: ‘I never thought that I would see it happen in this country’, he said.[vi] The criteria for deprivation were made even looser in 2006, so that now, all that officials need to show is that it would be ‘conducive to the public good’ for the person concerned to lose his or her citizenship.
These changes in themselves are profound, altering the nature of citizenship from a lifetime status to something far more precarious and contingent. It is ironic that earlier changes to citizenship law, in 1981, had made it more difficult to acquire; no longer was it possible to become British solely through the accident of birth in the UK: Britishness by birth was conferred only to those whose parent was a British national, or a person settled in the UK. It might have been thought that a status so difficult of acquisition, and so prized, would be more, not less secure, but since 2002 the reverse has been the case.
But the change that has had the most dramatic effect was a procedural one. A little-noticed provision in a schedule of a long Act in 2004 removed the vital procedural protection which allowed those affected to appeal against a deprivation order before the order took effect. Now, a deprivation order takes effect as soon as it is served. Immediately the notice is served, he or she ceases to be a British citizen. It is this change which has enabled successive home secretaries to issue orders while the targets are abroad, and to prevent them from coming back to Britain by issuing exclusion orders. Before, those served with a deprivation notice would have had an absolute right, as British citizens, to return to fight their appeal. Now, they don’t. If they want to appeal the decision, they must do it from abroad.
The courts turn away
The higher courts might have been expected to intervene to protect those affected and to uphold the principles of fairness which should underlie the whole legal system. Although the courts have no power to strike down Acts of parliament, they can declare their provisions incompatible with fundamental rights.[vii] They did so when parliament legislated to detain suspected foreign terrorists indefinitely if they could not be deported – the House of Lords judicial committee (the precursor of the Supreme Court) ruled that such a discriminatory provision was unlawful. Additionally, the courts can overrule the home secretary’s interpretation of Acts of parliament in order to give effect to basic rights. So for example, when a Tunisian man living in Britain was extradited to Italy on terrorist charges on which he was then acquitted, and the British home secretary cancelled his leave to be in the UK and argued that he had no right to return to the UK for an appeal, the High Court and the Court of Appeal construed the rights of appeal granted by statute so as to uphold his right to return to conduct his appeal in-country.[viii] (The government is seeking to reverse this decision by changing the statute.)
But when it comes to deprivation of citizenship, the courts have failed to uphold these basic rights. In July 2012, the Court of Appeal upheld the home secretary’s refusal to allow someone deprived of British citizenship abroad to return to the UK for his appeal, in spite of acknowledging (in an earlier case) the ‘unreality’ and ‘limited efficacy’ of conducting an appeal from abroad.[ix] The man, known as GI, had been born in Sudan and brought to the UK as a child by his refugee father. He became a naturalised British citizen in 2000. In 2009 he was arrested during the Gaza protests in London, and charged with a public order offence. He jumped bail and left the country, returning to Sudan. In June 2010 he was served with an order depriving him of citizenship. Three days later he received an exclusion order banning him from the UK, alleging links with Islamist extremists and involvement in terrorism-related activity. He appealed against the deprivation order, but the exclusion order meant he could not be in the UK for his appeal, putting him at a huge disadvantage. But both the High Court and the Court of Appeal rejected his argument that his exclusion was illegal and unfair.[x]
The unfairness of the procedure is heightened by the fact that the person being deprived of citizenship is not personally given the decision; it is generally sent to his last known address in the UK. He has 28 days to appeal, although the Special Immigration Appeals Commission (SIAC, to which deprivation appeals involving national security go) can allow a late appeal to proceed if they are satisfied the deprivation notice was not seen in time. But the burden is on the appellant to prove his lack of awareness, which is not easy. ‘E2’ lost his citizenship while he was in Afghanistan. The notice had been sent to his shop in east London, and the first he knew of it, he said, was when he was prevented from boarding his flight back to Britain from Dubai. He had to go back to Afghanistan, where he phoned a cousin in the UK, who retrieved the unopened letter from the Home Office from the clutter of mail in his letterbox and faxed it to him. The cousin gave supporting evidence to SIAC, but it was not believed. The reasons for this disbelief were not revealed – but ‘E2’ was told the delay in putting in his appeal was unjustified and he had lost his right to appeal. [xi] In another, similar case where Home Office officials sent the deprivation notice to ‘L1’’s London home when he was in Sudan, SIAC judge Mitting, striking out his late appeal, said that the law did not require a decision to be brought personally to someone’s attention in order to be effective against him. [xii]
Although the numbers affected are small, the effect of deprivation on Britain’s Muslim communities is disproportionate. It creates fear for those dual nationals wanting to visit relatives in Pakistan, Somalia or Sudan – fear that they might not be able to return to the UK, or that the family will be separated. In some cases, British children have been denied the right to return to the UK because of the banishment of their parents sometimes putting their health and development at risk. In ‘L1’’s case, the family, with four British children aged from 13 months to eight years, had just gone to Sudan for the school holidays, and found themselves unable to return. For some families, deprivation of a husband and father’s citizenship has forced a grim choice: exile with him, or the likelihood of permanent separation.
As we saw in the cases of Hashi, Sakr and Berjawi, deprivation of citizenship can lead to even more horrific consequences. The fate of these three men makes it reasonable to surmise that British intelligence fingers suspects and passes on details to the Home Office, the CIA and the intelligence services of other countries, to allow British terror suspects to lose their citizenship before being rendered or extra-judicially executed, so as to deny them the legal and diplomatic protection they would otherwise be entitled to. Leading immigration barrister Ian Macdonald QC has commented that depriving people of their citizenship ‘means that the British government can completely wash their hands if the security services give information to the Americans who use their drones to track someone and kill them.’[xiii] In this context, the legal ban on official action which exposes anyone to the risk of torture, inhuman treatment or killing, which is an integral part of British and international law, looks utterly empty. Justice Mitting, who presided over SIAC for several years until 2012, ruled of a British-Pakistani family who were deprived of their citizenship while visiting Pakistan, that in taking such action the UK authorities ‘owed no obligation’ to secure their rights to life and not to be tortured, or to protect them from ‘any subsequent act of the Pakistani state or of non-state actors [militant groups] in Pakistan’.[xiv]
It is worth repeating that none of those deprived of citizenship while abroad has been convicted of any criminal offence – and although ‘GI’ faced charges when he left the UK, they related to public order, not terrorism. But when it comes to British Muslims suspected of support for insurgency anywhere in the world, neither the presumption of innocence, nor the much-trumpeted ‘British value’ of fair play, will help them. British citizenship, even for second- and third-generation citizens, has become a mirage, insubstantial and misleading.
Frances Webber is a former barrister who specialised in immigration, refugee and human rights law until her retirement in 2008. She co-edited Macdonald’s Immigration Law and Practice (5th edition, 2001, 6th edition 2005) and Halsbury’s British Nationality, Immigration and Asylum (4th edition, 2002 reissue). She regularly speaks and writes on migration and human rights issues. Frances Webber is also the author of Borderline justice: the fight for refugee and migrant rights (Pluto, October 2012)
[i] ‘British terror suspects quietly stripped of citizenship … then killed by drones’, Independent 28 February 2013,http://www.independent.co.uk/news/uk/crime/british-terror-suspects-quietly-stripped-of-citizenship-then-killed-by-drones-8513858.html.
[ii] See ‘When being born British isn’t enough’, Chris Woods, 27 February 2013, http://mahdihashi.net/2013/02/28/when-being-born-british-isnt-enough/.
[iii] See ‘Former British citizens killed by drone strikes after passports revoked’, Bureau of Investigative Journalism, 27 February 2013,http://www.thebureauinvestigates.com/2013/02/27/former-british-citizens-killed-by-drone-strikes-after-passports-revoked/, cited in Independentop cit.
[iv] R v Secretary of State for the Home Department ex p Ejaz  QB 496.
[v] IRR News, 9 June 2011, http://www.irr.org.uk/news/deprivation-of-citizenship-by-stealth/.
[vi] Standing Committee on Nationality, Immigration and Asylum Bill, 30 April 2002, col 50ff;http://www.publications.parliament.uk/pa/cm200102/cmstand/e/st020430/pm/20430s14.htm.
[vii] Under section 4 of the Human Rights Act 1998.
[viii] MK (Tunisia) v Secretary of State for the Home Department  EWCA Civ 333, 25 March 2011,http://www.bailii.org/ew/cases/EWCA/Civ/2011/333.html.
[ix] PE (Cameroon) v Secretary of State for the Home Department  QB 686, http://www.bailii.org/ew/cases/EWCA/Civ/2009/119.html, upheld by the Supreme Court at  1 AC 444.
[x] GI Sudan v Secretary of State for the Home Department  EWCA Civ 867, 4 July 2012,http://www.bailii.org/ew/cases/EWCA/Civ/2012/867.html.
[xi] E2 v Secretary of State for the Home Department , SIAC 2 August 2012, http://www.siac.tribunals.gov.uk/Documents/E2_OOT_Judgment.pdf.
[xii] L1 v Secretary of State for the Home Department, SIAC 3 December 2010,http://www.siac.tribunals.gov.uk/Documents/L1_StrikeOutJudgment_031210.pdf.
[xiii] Bureau of Investigative Journalism, op. cit.
[xiv] S1, T1, U1 and V1, Special Immigration Appeals Commission, 21 December 2012, http://www.siac.tribunals.gov.uk/Documents/S1-T1-U1-V1-open-judgment-21-12-12..pdf.
Photo used courtesy of Flickr/mwanasimba
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