Clause 4 - Deprivation of citizenship
Nationality, Immigration and Asylum Bill
9:00 pm
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
This is an important clause. It is about the deprivation of citizenship. My amendments seek to change what we believe is the Secretary of State's excessive power. I hope that the Bill does not reflect what the Government plan to do.
I can do no better than read the brief supplied to members of the Committee by the Immigration Law Practitioners' Association, in which Laurens Fransman QC makes a strong case. His words are better than mine.
''The proposed new section 40(2) of the 1981 Act''—
that is the Act that will be amended by clause 4—
''provides a sweeping power to deprive a person of British nationality not just where that nationality was acquired by grant in response to an application but also where it was acquired automatically by birth in the UK by descent. This draconian new power arises as presently drafted wherever the Secretary of State just 'thinks' that the person has done something 'seriously prejudicial to the vital interests' of the UK or an overseas territory, he may remove that person's citizenship. ILPA is concerned that these expressions are far too vague, that a requirement only to 'think' there is prejudice lays down an unacceptably low threshold for the Secretary of State to attain in invoking the power.''
It is unprecedented in ILPA's experience to use the phrase
''the Secretary of State thinks''
in legislation and it is outrageous to use it in so important a matter.
The opportunities for litigation on whether the Secretary of State is entitled to think irrationally, or what his thought processes were in coming to a conclusion, are almost infinite. Amendments proposed by both the opposition parties substitute a phrase which is already understood in the law, which explains the standard of proof required. We succeeded in getting such an amendment, incorporating a reasonableness clause, included in the Anti-Terrorism, Crime and Security Bill before Christmas:
''Without this limitation, the Home Secretary's power would be unfettered.''
The example of Lotfi Raisi has been given. He is the Algerian who was held in Belmarsh prison, in south-east London, for five months, without any evidence being produced against him. Would the Secretary of State be allowed to get away with presuming that evidence would be produced when, in the end, it was not? Similarly, would it be possible to suppose that someone had failed the test, and to deprive him or her of citizenship, even if that person had not failed the test? The worry is, first, that the threshold in the provision is low; secondly, that the proposal is
retrospective; and, thirdly, that it is too general. Even more surprisingly, it applies to people who were born here, not just to those whose citizenship, it could be argued, needs to be more conditional because they have to apply for it and it could be regarded, at least in the initial phases, as something that could be taken away from them.
We know from other cases and discussions on other Bills that the ''seriously prejudicial'' test is poor and can cover a multitude of sins. The ''vital interests of the United Kingdom'' test is a general test, which allows the Home Secretary vast discretion. That is why amendments have been tabled to tie down those tests. However, the crucial issue is what happens if the Home Secretary exercises the power. Amendment No. 96 deals with the consequence—that someone would become stateless. I know that international conventions deal with that, but my understanding is that, under the Bill, the Home Secretary will have the power to deprive even UK-born nationals of UK citizenship, except if that would leave a person stateless. We want to ensure that such people could not be deprived of citizenship, even if it would not render them stateless. That is a strong point because many written constitutions declare that citizenship is a fundamental identity right. In the United States, the Supreme Court Justice, Earl Warren, said just that. We must be very careful not to leave people stateless.
I want to mention two linked points relating to amendments Nos. 35 and 12. Amendment No. 35 would prevent the Secretary of State from using his deprivation powers under new section 40(2), if it would make the person involved stateless. No such limitation is included in the criteria listed at the top of page 3, which includes:
''(a) fraud,
(b) false representation, or
(c) concealment of a material fact.''
I am told that that would be consistent with the convention on the reduction of statelessness and the European convention on nationality. I gather that those documents are designed to ensure that people do not end up with no nationality or state.
Lastly, on amendment No. 12, there is a real worry about the retrospective deprivation of citizenship. That point was not only made by ILPA, but by the Immigration Advisory Service, whose director is Keith Best. The obvious example is that people who may be thought to be involved in terrorism, such as Muslim extremists, could suddenly find themselves, whether they were born here or acquired British citizenship later, having that citizenship taken away from them on a charge for which there was a lesser threshold of proof than reasonable doubt. That could happen on the basis of the Home Secretary thinking something, and that could not easily be reviewed by the courts.
I share the view that this appears to the most dangerous clause that we have considered so far. I hope that the Minister will consider the amendments seriously and come up with a better and safer drafting of this measure that does not take away the rights of
people to citizenship under any of the circumstances that we have discussed.