Part of Nationality and Borders Bill - Committee (1st Day) (Continued) – in the House of Lords at 5:45 pm on 27th January 2022.
My Lords, I thank all noble Lords who have spoken on this late Thursday afternoon, and those who tabled Amendments 25, 26, 27, 28, 32 and 33, for their contributions, which have made it a very lively debate. Some 14 noble Lords talked about wider deprivation, which is obviously not in Clause 9, and five noble Lords spoke on Clause 9 itself. I would like to address some of the most irresponsible scaremongering surrounding Clause 9 that I have probably ever heard. As my noble friend Lord Hodgson of Astley Abbotts says, there have been some quite overblown comments today.
It is very important to be clear about what Clause 9 is and what it is not. It is not, as my noble friends Lord Hodgson of Astley Abbotts and Lord Hunt of Wirral said, an amendment to the deprivation power that has been in force for 100 years. It does not allow the Home Secretary to remove citizenship on a whim. I look forward to a conversation with my noble friend Lady Mobarik, as I was concerned by her level of fear on this. Clause 9 will not strip 6 million people of their British citizenship without warning. It is not targeted at particular ethnic minorities, and it does not change the reason why a person may be deprived of their British citizenship. It does not remove the right of appeal against a decision to deprive law-abiding British citizens, like my noble friend Lady Mobarik, of their citizenship; they have nothing to fear from Clause 9, nor does the mother of my noble friend Lady McIntosh of Pickering, or the grandparents of my noble friend Lady Warsi. They could not be deprived because they have done nothing wrong.
I might add here that the people who need to declare any interest or concern are not those of the Windrush generation, not Jews, not Muslims, and indeed not Catholics such as myself with dual nationality, but terrorists—people who would actually do us harm. I glean from the noble Baroness, Lady Jones of Moulsecoomb, that she does at least support the removal of citizenship in fraudulent applications, if I understood her correctly.
I will start by addressing the amendments relating specifically to Clause 9, and then move on to the amendments that focus on the wider deprivation power. I thank the noble Lord, Lord Anderson, for Amendment 28. I reassure him that the Government have repeatedly made clear that all deprivation decisions are taken carefully, after full consideration of the facts, and in accordance with domestic and international law. I do not think he disputes that. The decisions are, as he knows, already subject to judicial oversight via the statutory right of appeal, and individuals are also able to seek judicial review proceedings, where appropriate, on any aspect of the decision-making process not captured by the statutory right of appeal.
In addition, the Independent Chief Inspector of Borders and Immigration has a wide remit to inspect any aspect of the immigration and nationality system, and at any time can review the use of deprivation powers. The Home Secretary can also commission specific reviews, as desired, which the noble Lord, Lord Anderson, referred to, particularly with regards to their frequency. I look forward to speaking further with him on that that before Report. He will also be aware that the Supreme Court of Appeal and SIAC, the Special Immigration Appeals Commission, have recently affirmed the Home Secretary’s competence to decide on matters of national security.
The noble Lord commented, as did the noble Lord, Lord Paddick, on the number of cases in 2017 and the status of figures since then. The rise in 2017 is due to the large increase in global terrorism. More broadly, I want to assure the noble Lord that the Home Office is committed to publishing its transparency report into the use of disruptive powers, and will do so in due course. I look forward to continuing to engage with him on this matter and others pertaining to this Bill.
My noble friend Lady Warsi asked about the numbers, and I think others did, since 2010. There was an average of 19 between 2010 and 2018. The noble Lord, Lord Anderson, also asked about the comparison with Australia and New Zealand, and kindly shared his papers on this with myself and my officials. I have listened to his points extremely carefully, and I intend to consider them carefully and to continue to engage with him outside this Committee.
Amendments 25 and 26 would mean that we could not deprive a person of British citizenship purely because we did not know where they were and could not get the notice to them. We would be reliant on people whose conduct is serious enough to warrant deprivation keeping in contact. It is not correct to say that we will not ever have to notify someone of deprivation. Of course, if they come back to the UK—and most of them are outside the UK—they will find out; if they do not, one presumes that they did not try to when they came back or do not care.
I move now to the amendments relating to the wider power to deprive someone of citizenship. This is an extremely serious matter and is rightly reserved for those whose conduct involves very high harm or poses a threat to public safety, or those who obtained their citizenship by fraudulent means. The UK Government are absolutely clear that no one citizen should have the right to destroy the lives of other citizens in this country.
As I have mentioned, it cannot be right that we risk the UK’s interests to make contact with dangerous individuals who wish us harm, nor is it right to allow them to exploit a loophole in legislation and retain the benefits of British citizenship simply by removing themselves from contact with the Government or relocating to a place where we could not reasonably send them notice. Amendment 32 would completely remove the ability of the Home Secretary to make a deprivation decision in relation to those high harm individuals. Deprivation would then be possible only where a person has obtained citizenship by fraudulent means.
We have sadly often seen the effect of terrorist attacks on our way of life or the impact of serious organised crime on the vulnerable. The threat picture, as noble Lords have spoken about, is in direct correlation to deprivation—in other words, an increase in the threat picture leads to an increase in the number of deprivations. The 464 figure that the noble Baroness, Lady Jones, cited combines both the fraud and conducive to the public good figures. It cannot be right that these people keep their British passports and remain free to come in and out of the UK as they please. It is the Government’s duty to keep the public safe, and we do not make any apologies for seeking to do so.
But I understand the concerns about “secret” decision-making. Deprivation decisions are made following very careful consideration of advice from officials and lawyers and in accordance with international law. Some of that consideration involves sensitive information and evidence, as noble Lords might be aware, and it would not be in the public interest if that evidence were made public. For example, it could jeopardise ongoing criminal investigations or undercover operations and thus harm those working on behalf of the Government to keep us safe. That is why appeals against a deprivation decision relying on such evidence are heard by the Special Immigration Appeals Commission, or SIAC. Amendment 33 would remove the ability to rely on this sensitive evidence, because with no means to securely air it at the appeal stage, the Government would not be able to take deprivation decisions in these cases. Also, removing the public interest test for certification of deprivation decisions into SIAC risks creating an anomaly within the immigration and nationality system as grounds for certification are the same regardless of case type, and the special advocate system and rules of court ensure that any evidence which can be heard in open court is done so.
I turn next to Amendment 27, which would take us back to the limited grounds for deprivation that were historically in legislation. In today’s modern world, the threat to the UK’s safety and security is not restricted to those who have shown themselves disaffected towards the Crown or engaged with an enemy during times of war, nor is it restricted to those who are not automatically British. This amendment would restrict deprivation of fraudulently acquired citizenship to cases where it was also conducive to the public good for the person to be deprived. The right approach cannot be to make it more difficult for the Home Office to address abuse of our immigration and nationality system while those who have actually cheated the system retain the benefits of the British citizenship that they were never entitled to.
Moving on, Amendment 29 would remove our ability to deprive those who, despite being British by birth, bear no loyalty to this country or its people. Serious organised criminals and those who conduct high-harm acts, even those who were not British by birth, could not be deprived of their citizenship. The threat to the UK’s safety and security is not restricted to those who are not British by birth, nor is it limited to those who pose a threat to national security. Consideration of the child’s best interests is already a primary consideration in deprivation decisions which affect them. However, this amendment would mean that it would not be possible to deprive someone who posed a threat to national security if it affected the best interests of a child in their family, unless the person has conducted themselves in a manner seriously prejudicial to the fundamental interests of the UK or a British Overseas Territory.
This amendment would also restrict deprivation of fraudulently acquired citizenship to cases where a court gave its consent. The right approach cannot be to make it more difficult to address abuse of our immigration and nationality system, asking a court for permission to make a decision that they will consider again when the person exercises their right of appeal. In the meantime, those who have cheated the system retain the benefits of the British citizenship they were never entitled to.
The amendment would also increase the frequency of the review of the deprivation power at Section 40(4A) of the British Nationality Act 1981 to an annual review. I think noble Lords have made the point that this power has been in force since 2014 and has not been used to date. It would not be appropriate to increase the frequency of reviewing a power which has never been used, but I look forward to further discussions with the noble Lord, Lord Anderson, on this issue.
Finally, as I have said, deprivation decisions always come with a statutory right of appeal. Reviews undertaken in respect of such cases where there are live appeals or appeal rights not yet exercised or exhausted risk undermining the statutory provision and the judiciary’s independent role. Such a review would place an additional burden on the departments involved in supporting the Home Secretary in such cases, as well as the burdensome cost to the taxpayer.
I will conclude by speaking to the need for Clause 9 as a whole. It is necessary in order to avoid the situation where we could never deprive a person of British citizenship just because it is not practicable or possible to communicate with them. Preserving the ability to make decisions in this way is vital to preserve the integrity of the UK immigration system and protect the security of the UK from those who would wish to do us harm. We cannot do that if our hands are tied because we have to give people notice in situations where they have removed themselves from contact. We have, sadly, too often seen the effect of terrorist attacks on our way of life or the impact of serious organised crime on the vulnerable. It cannot be right that these people keep their passports and remain free to come in and out of the UK as they please.
I will touch on the Court of Appeal case that has been mentioned by a number of noble Lords today. It found that the Secretary of State for the Home Department is entitled to decide that
“deprivation of citizenship is conducive to the public good because, by reason of the individual’s harmful conduct, he ought not to be allowed to enjoy the benefits of British citizenship generally, quite aside from the possibility of his removal from the UK.”
My noble friend Lady Warsi asked about the meaning of
“conducive to the public good”.
In simple terms, it means that it is in the public’s interest that the person is not British.
I turn to something that my noble friend Lady McIntosh asked about. I talked about people coming in and out of the country—they are often deliberately hiding from the authorities to evade detection and being brought to justice. Proposed subsection (5A)(c)(ii) refers to where sensitive information tells us where a person is but revealing that could harm our relationships with other countries—namely, if it is from their intelligence services. So it is the Government’s duty to keep the public safe, and we make no apology for trying to do so. But we do not want to deny a person their statutory right of appeal where we have made a decision to deprive, so this clause also preserves that right.
The noble Baroness, Lady Lister, asked whether this retrospective element just covers our backs. We are actually seeking to affirm our robust and effective system. It is important in cases where we have already made a decision to deprive that the subsequent deprivation order remains valid and effective to protect the UK from high-harm individuals. In cases where we have already made a decision to deprive but, for one reason or another, we have not notified the person, this clause also ensures that such decisions, as well as the subsequent deprivation, are still lawful.
The noble Baroness, Lady Chakrabarti, my noble friends Lady Warsi and Lord Moylan and the noble Lord, Lord Paddick, talked about a criminal justice response to the most high-harm individuals—of course, not all of them have committed criminal offences—by putting them in prison. In this country, we have seen what happens when we do that: they get out, and a few of them have either attempted or succeeded to do members of the British public the worst harms.
On the point of the noble Lord, Lord Paddick, about dumping people outside the UK, I say: we are not—most of them are already outside the UK. It is important that deprivation orders made before this clause comes into force remain valid—otherwise, individuals whom the Home Secretary has already decided should be deprived of their citizenship because it is conducive to the public good could have their citizenship effectively reinstated and could be free to travel in and out of the UK, with dire consequences for national security.
I will leave the last words to the noble Lord, Lord Blunkett, who talked about his history of the wider power and challenged this House to remove the fear. After what I have said today and some of the further discussions that I will have with noble Lords before Report, I hope that we are on our way to removing that fear.