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Is the Secretary of State’s citizenship deprivation power compatible with the rule of law and human rights?

Posted by: Gherson Citizenship and Nationality

Previously in this blog series, we have covered: What is citizenship deprivation?, How can a person’s British citizenship be taken away? and How can I appeal against the removal of my citizenship?. For the remainder of the series, we will explore whether the Secretary of State’s power to remove a person’s British citizenship is compatible with principles of the rule of law and the European Convention on Human Rights (ECHR). In particular, we focus on section 40(4A) of the British Nationality Act (BNA) 1981.

Before section 66(1) of the Immigration Act 2014 introduced section 40(4A) to the BNA 1981, the Secretary of State was prevented by section 40(4) of the BNA 1981 from depriving a person of their citizenship on the ‘public good’ grounds where doing so would make them stateless. As mentioned in our previous blog, section 40(4A) qualified this restriction by allowing the Secretary of State to make a person stateless where:

  1. The person’s British citizenship was acquired by naturalisation;
  2. The Secretary of State is satisfied that deprivation is conducive to the public good because the person has conducted themselves in a manner which is seriously prejudicial to the vital interests of the UK; and
  3. The Secretary of State reasonably believes that the person is able to become a citizen of another country.

This legislation attracted some criticism. At the time, the UN Special Rapporteur on Human Rights and Counter-Terrorism warned Parliament’s Joint Committee on Human Rights that statelessness is “a subject of very significant concern”. The Government’s Independent Reviewer of Terrorism Legislation later commented that section 40(4A) affords the Secretary of State an unusually strong deprivation power by international standards.

There are several criticisms that can be made against section 40(4A). In this blog series, we will explore three of them, namely: that it provides the Secretary of State with an excessively broad discretion; that it applies discriminately against naturalised citizens; and that it fails to adequately safeguard human rights. This blog will address the first of those criticisms.

Breadth of discretion

The wider the discretion bestowed on the executive, the greater scope there is for the determination of rights to be subjective, which is antithetical to the rule of law.

According to the Government’s Independent Reviewer of Terrorism Legislation, a “striking feature” of s 40(4A) is the breadth of discretion it affords the Secretary of State. The statute does not define the meaning of “seriously prejudicial” conduct, nor the circumstances in which it will be “conducive to the public good” to a deprive a person of their citizenship. Consequently, decisions made under section 40(4A) necessarily involve an element of subjectivity.

Is the Secretary of State’s citizenship deprivation power compatible with the rule of law and human rights? The scope for divergent conclusions to be drawn under the “public good” test was illustrated in Y1 v SSHD. Y1 was deprived of his British citizenship despite the conclusion of the Security Service that national security risks could be more effectively managed if he were allowed to return to the UK. Of course, the Secretary of State’s decision to overrule the Security Service was consistent with her duty not to fetter the discretion granted to her by Parliament. Nonetheless, the case of Y1 does demonstrate the subjectivity involved in the exercise of section 40(4A).

On the other hand, as a matter of pragmatism, government ministers are required to make decisions regarding national security, which necessitates some amount of discretion. Moreover, a high degree of inflexibility has the potential to cause injustice by denying ministers the opportunity to exercise leniency in exceptional circumstances.

However, given the severe consequences of statelessness, the breadth of discretion afforded to the Secretary of State by section 40(4A) does seem excessive. An alternative provision, which would balance the need for limited discretion against the dangers of arbitrary decisions, would be to make decisions under section 40(4A) subject to prior judicial approval. An opposition amendment to that effect was rejected by the House of Commons.

Part 2 of this blog will examine section 40(4A)(a), which provides that section 40(4A) only applies in respect of citizens who acquired their British citizenship by naturalisation, in light of case law under Article 14 of the ECHR. Part 3 explores the wider human rights implications of citizenship deprivation resulting in statelessness.

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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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