23. Clause 4 of the Bill (deprivation of citizenship)
would substitute new sections 40 and 40A for section 40 of the
British Nationality Act 1981. New section 40 would, among other
things, for the first time allow the Secretary of State to deprive
a person born a British citizen of his or her British citizenship.
The House of Lords Select Committee on the Constitution asked
the Government about the constitutional justification for this,
and was told that the Government intends the provision to remove
unjustifiable distinctions between naturalised British citizenship
and those who acquired their citizenship at birth.
The conditions for exercising the power (as amended in the House
of Commons) would be (a) that 'the Secretary of State is satisfied'
that the person had done anything seriously prejudicial to the
vital interests of the United Kingdom or a British overseas territory,
and (b) that the Secretary of State does not think that it would
make the person stateless.
24. There is no right, under international human
rights law, to be a citizen of any country. Nevertheless, we were
concerned that depriving someone of citizenship might indirectly
have an adverse impact on their human rights. We therefore asked
the Secretary of State whether depriving a person of citizenship
would make them more liable to lose benefits in the United Kingdom,
or to be removed to another country, in circumstances which would
put at risk their right to be free of degrading treatment (ECHR
Article 3), their right to liberty (ECHR Article 5), their right
to respect for family life (ECHR Article 8), their right not to
be subjected to the death penalty (ECHR Protocol No. 6), their
right to an adequate standard of accommodation and standard of
living (ICESC Article 11(1)), and the rights of their children
under the Convention on the Rights of the Child (CRC); and, if
so, what steps would be taken to ensure that these matters are
taken into account when considering whether or not to deprive
a person of citizenship.
25. In reply, the Home Office acknowledged that the
impact of depriving someone of citizenship would sometimes deprive
him or her of a right of abode. The person would then become subject
to immigration control. However, the Home Office points out that
the person would have had dual nationality,
and so would not become stateless if British citizenship were
any decision to deport the person would
be taken subsequently and separately, and would be subject to
the usual protections against being subjected to the threat of
inhuman or degrading treatment and the imposition of the death
the status of the person's existing children
would be unaffected,
it takes the view that the right to respect
for private and family life does not require that all members
of a family should be guaranteed the same nationality or citizenship.
The status of children as yet unborn would be affected,
and it is possible that this might engage Article 7 of the Convention
on the Rights of the Child, which provides
1. The child shall be registered
immediately after birth and shall have the right from birth to
a name, the right to acquire a nationality and, as far as possible,
the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation
of these rights in accordance with their national law and their
obligations under the relevant international instruments in this
field, in particular where the child would otherwise be stateless.
However, the Home Office draws attention to the fact
that any impact on the right to a nationality would be covered
by the reservation to Article 7 which the United Kingdom entered
on ratifying the CRC.
26. Although (as noted in paragraph 17 above) we
have some concerns about the reservations entered by the United
Kingdom to the CRC (a matter considered further below, paragraphs
46-48), we accept that it is legitimate for the Government to
adopt this position. At the same time, we are very conscious that
depriving people of British citizenship has serious consequences.
These include loss of the right to a United Kingdom passport,
which may affect people's ability to travel, especially if the
other State of which a person is a citizen were to deny a passport
to the person for political reasons.
Inability to obtain a passport could make a person's alternative
nationality little more than an empty shell. In addition, deprivation
of British citizenship would entail loss of British diplomatic
protection; loss of status; loss of the ability to participate
in the democratic process in the United Kingdom; and serious damage
to reputation and dignity. The Home Office argument assumes that
the real threat to human rights would derive from any subsequent
decisions taken as part of the immigration control process. In
that process, there would usually be adequate opportunity to ensure
that effect is given to Convention rights, and that other rights
are given appropriate weight. However, we are concerned about
the wider implications of loss of British citizenship. We also
have deep concerns about other parts of the Bill which affect
the protection for rights of immigrants and which are considered
below. We draw these matters to the attention of each House.
27. Turning to the conditions governing the power
to deprive someone of British citizenship, we were concerned that
there was no requirement for the Secretary of State to show that
there were objectively reasonable grounds for doing so. This seemed
to us to put at risk a person's legal status without adequate
safeguards against arbitrariness (although we noted that clause
7 would require reasons to be given for decisions, and would provide
for a right of appeal).
We therefore asked the Secretary of State why it was thought to
be appropriate to dispense with any requirement for objectively
28. In its reply, the Home Office referred to a long
history of allowing the Secretary of State to deprive people of
British nationality on the basis of a subjective view, and argued
that it is entirely appropriate that the Home Secretary should
be permitted to decide whether a person has done something 'seriously
prejudicial to the vital interests of the UK or a British overseas
territory'. The Home Office drew attention to a long-standing
judicial acceptance that the Home Secretary is in the best position
to decide what national security requires.
29. We cannot agree with this line of argument. The
requirements which statutes imposed on Secretaries of State in
earlier centuries were shaped by the different, and less demanding,
standards of due process and fairness which were then accepted
as being appropriate in public administration and administrative
law. In the light of today's more fully developed standards of
decision-making under the rule of law, not to mention enhanced
protection for due process under the Human Rights Act 1998, we
do not accept that it is any longer appropriate to allow a Secretary
of State to deprive a person of a status as important as citizenship
on the basis of the Secretary of State's purely subjective assessment.
We recognize that the Secretary of State is likely to be in a
particularly good position to form a judgment, and that it may
in consequence be entitled to considerable respect. However, we
consider that the Secretary of State should be required to justify
the decision by showing that there are reasonable grounds for
it. In some limited circumstances it might be appropriate to limit
the burden of justifying decisions. For example, national security
decisions (to which the Home Office memorandum refers) may be
made on the basis of evidence which could not properly be publicly
revealed. However, the Home Office has offered no support for
its implied suggestion that any decision that someone has done
something seriously prejudicial to the vital interests of the
UK or a British overseas territory would necessarily be made on
the basis of that kind of evidence. Indeed, the very breadth and
indeterminacy of the phrase 'seriously prejudicial to the vital
interests of the UK', etc., suggests that decisions may be made
on the basis of many different kinds of evidence, and that it
will often be both possible and desirable for the Secretary of
State to be required to justify such decisions by reference to
standards of reasonableness.
30. The Home Office has suggested that there would
be adequate safeguards against arbitrary use of the power. The
Secretary of State would have to give reasons for the decision,
and a person who had been deprived of British citizenship could
challenge it on the ground that the decision was 'Wednesbury
unreasonable' (i.e. that it was so unreasonable that no reasonable
Secretary of State, properly understanding the relevant facts
and applicable law, could have come to that conclusion).
We recognize that this offers some protection against arbitrariness
which results in a manifestly irrational decision, in which the
reasons advanced could not properly and reasonably be regarded
as supporting the decision made. However, the protection offered
by the Wednesbury unreasonableness principle is unsatisfactory
in this context. Instead of the Secretary of State having to establish
that his or her decision had been reasonable, the aggrieved person
would have to establish that the decision had been wholly unreasonable.
Both the burden of proof and the standard of proof are different.
As a matter of general principle, we consider that it is a
far more effective guarantee against arbitrariness, and a better
way of assuring good administrative decision-making (as well as
being far more compatible with the rule of law which underpins
human rights), to require public authorities to justify the deprivation
of a person's status to a standard of reasonableness, than to
require the person subject to the decision to establish that it
is wholly unreasonable.
31. We therefore draw this matter to the attention
of each House.
32. We asked the Secretary of State about rights
of appeal in relation to deprivation of citizenship. We were concerned
about provisions in clause 4, inserting a proposed new section
40A into the British Nationality Act 1981. This would allow the
Secretary of State to deprive a person of the right to appeal
to an adjudicator against deprivation of citizenship by certifying
under proposed new section 40A(2) that the decision
... was taken wholly or partly
in reliance on information which should not be made public on
grounds relating to-
(a) the interests of national security,
(b) the interests of the relationship between the
United Kingdom and another country, or
(c) another matter of a political kind.
The Department pointed out that in such a case there
would be a right to appeal to the Special Immigration Appeals
Tribunal (SIAC) under proposed new section 2(2A) of the Special
Immigration Appeals Commission Act 1997, to be inserted by clause
4(2) of the Bill. In addition, proposed new section 40A(6) of
the British Nationality Act 1981, to be inserted by clause 4 of
the Bill as amended in Committee, would prevent a deprivation
order being made until an appeal to the Commission had been concluded
or the time for making such an appeal had expired.
33. The procedure would therefore seem to be as follows.
The Secretary of State would give notice to a person that he had
decided to make a deprivation order. If the person sought to appeal,
the Secretary of State would certify that the case was concerned
with national security, etc., ruling out an appeal to the adjudicator.
The person could then appeal to the SIAC, which would be able
to consider whether the decision was justified (in the light,
inter alia, of any relevant Convention rights). The SIAC
would have full jurisdiction, and would be competent to deal with
all issues of fact and law.
Only after the time for appealing had expired without an appeal
being lodged, or the SIAC had held that the Secretary of State's
decision had been lawful, could a deprivation order be made pursuant
to the Secretary of State's decision. Having considered the
matter, we are satisfied that clause 4 of the Bill, as amended
in the House of Commons, is likely to offer adequate safeguards
for the rights of potential appellants.