A controversial provision that could deprive people of their British citizenship and leave them stateless – without even telling them – is progressing through parliament despite rising levels of criticism.
At present, the Secretary of State is required to notify individuals if she intends to deprive them of citizenship. But the new measures, contained in Clause 9 of the Nationality and Borders Bill, would allow the Secretary of State to strip people of their British citizenship without giving them any notice in two situations:
- Where it is not “reasonably practicable” to do so OR
- If it is in the interest of national security, diplomatic relations or otherwise in the public interest
There may be arguments in favour of the first category – for example, if someone has vanished overseas for years – but the second category has stirred up a lot of justifiable anger.
“In the public interest” is an extremely broad, open-ended definition, which could potentially affect a host of people the Secretary of State takes a dislike to.
To make matters worse, this effectively prevents a right of appeal. if someone doesn’t know the Secretary of State is considering revoking citizenship, how can they take any legal action to challenge the move? They would only find out after it had already been revoked – most probably on attempting to re-enter the UK or renew their passport.
Affected individuals would apparently still have a theoretical right of appeal at a later date. But those affected would be unable to return to the UK to gather evidence or attend their own court hearing. It is true they can instruct a UK lawyer to act for them – but if they cannot afford a lawyer, they simply won’t be able to effectively challenge the decision alone if they are not in the UK. If they don’t find out for years, then valuable evidence may have been lost in the meantime.
It’s important to note that, as under current law, the Secretary of State would be able to take this action either where someone has another nationality or where there are “reasonable grounds” to believe someone could apply for citizenship of another country. The best-known example of this was probably the Shamima Begum case, discussed by Mariam here, where the UK authorities decided she could apply for Bangladeshi citizenship through her parents (despite this being disputed by Bangladesh).
Clause 9 was quietly slipped into the draft legislation in November without any warning or advance discussion, apparently in response to a High Court ruling of July 2021, in the case of on the
D4 v The Secretary of State for the Home Department [2021] EWHC 2179 (Admin).
In that case, the court took issue with a 2018 amendment to 2003 regulations that specified how the Secretary of State was required to notify people of an intention to deprive them of citizenship. The 2018 amendment said that the Secretary of State could be treated as having notified someone whose whereabouts was unknown provided, she kept a record of the circumstances and placed a copy of the decision on the person’s Home Office file. The High Court said this wasn’t enough. The Secretary of State had to notify the person in writing of her intentions. The amendment to the regulations was found to be unlawful.
However, if it becomes law, Clause 9 would have retroactive effect – meaning the Secretary of State can simply ignore what the High Court had to say on the matter.
Clause 9 of the bill, which currently in the House of Lords, is now subject of an online petition calling for a full parliamentary debate rather than the cursory glance it received last week.
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The above is correct as at 21 December 2021. The information above may be subject to change as this is a constantly evolving situation. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
