A group of lawyers found that at least 464 people have had their citizenship removed by the government over the last 15 years. They pieced together the data using freedom of information requests and other publications – a challenge, because the Home Office does not publish the information regularly.
Citizenship-stripping for conduct – when a person’s citizenship is removed because of their behaviour – has been a government power for decades. Previously, citizenship could only be removed if the individual had done something “seriously prejudicial to the vital interests” of the UK. But the power was expanded in 2006, allowing the government to remove citizenship if the secretary of state believes the deprivation is “conducive to the public good”.
The nationality and borders bill, which is currently going through parliament, expands this further. It would allow the government to strip people of their British citizenship without notice.
Knowing how often, and in what manner, these decisions are made is important because citizenship-stripping affects the lives of individuals, their families and their communities. The decision to strip people of British citizenship is based wholly on ministerial discretion – the satisfaction of the minister. Like decisions by all public bodies, ministerial decisions cannot be arbitrary, must operate within reasoned parameters and be just and fair in application.
Citizenship deprivation is ordinarily done for national security or counter-terrorism reasons, so it is possible that lack of transparency is due to a need to protect sources and details of operations. However, operational details are different from providing bare statistics on the use of power.
While it is true that the law recognises the need for some use of exceptional state powers in the area of counter-terrorism, it still requires fairness. For example, the Special Immigration Appeals Commission, which hears appeals from citizenship cancellation orders, has provision for extraordinary closed court sessions which are not open to the public. Yet there is still a process in place for sharing information and providing legal representation to those who appeal, for the sake of fairness.
In response to this article, a Home Office spokesperson said: “The Home Office is committed to publishing its transparency report into the use of disruptive powers and will do so in due course. Removing British citizenship has been possible for over a century, and is used against those who have acquired citizenship by fraud, and against the most dangerous people, such as terrorists, extremists and serious organised criminals.”
Without more information from the government, it is impossible to evaluate whether the citizenship-stripping decisions have been objectively reasonable and based on evidence. This is also rarely scrutinised in appeals cases, as most citizenship deprivations occur when someone is outside the country. As has been seen in the Shamima Begum case, it is nearly impossible for people to adequately represent their situation in court from conflict areas.
There is legal precedent for government transparency in immigration cases. Courts have directed that people should be told the reason why their naturalisation applications were denied. And more generally, courts have directed that Home Office decision-makers must record their reasoning at the time decisions are made.
Secrecy can also prevent courts from clarifying less clear aspects of the law. Well-reasoned decisions help public bodies withstand legal challenge if they are robust and easily explained.
Duty of care
Public authorities generally owe the public a duty of care to protect individuals from harm.
The government owes a heightened duty of care towards children who are in conflict areas such as Syria and unable to leave because their British parents have had their citizenship cancelled. The duty towards children is based on their welfare in national laws, as well as best interests in international human rights conventions. Yet, the lack of transparency on citizenship-stripping means not much is known about how many children are affected or what, if anything, is being done to bring them to safety.
Ministerial power should only be exercised for the public good, and negligence can put lives at risk. Public officers acting in bad faith, knowing it would probably cause harm, could be committing misfeasance in public office. Actions for misfeasance require proving intentional misbehaviour and would be difficult to establish for cancellation of citizenship. Nevertheless, it shows that there are limits to ministerial power and discretion.
Given these serious consequences, ministerial discretion must be exercised objectively and with transparency. Oversight bodies, parliament and the public must be able to scrutinise their actions.
It is possible that the lack of available data is just poor recordkeeping or delay on the part of the government. But this secrecy hampers wider public responses to human rights abuses which may take place during counter-terrorism operations. NGOs and investigative journalists can only go so far to bring about accountability while relying on freedom of information requests, personal contacts and anecdotal evidence for data.
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Devyani Prabhat does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.