As someone whose family arrived in the UK from Uganda in 1972 - fifty years ago this year - I know the anxiety which matters of citizenship can arouse. More so given the shameful experience of the Windrush generation and the historic high-handed behaviour of the Home Office. There has consequently been much discussion in recent weeks about Clause 9 of the Nationality and Borders Bill and it’s impact on those with dual nationality, such as those holding an Overseas Citizen of India visa. Many readers of Asian Voice and Gujarat Samachar will be amongst the 300,000 plus signatories to an online petition arguing for removal of Clause 9. Having reviewed the position carefully here is why these fears are misplaced.
The state’s right to deny citizenship is something which has existed on the statute books for more than a century. These powers have been amended and updated over time.
British citizenship was first put on a statutory footing through the British Nationality Act 1948. Before that there were no such thing as citizens, only subjects. Our nationality law is now governed by the British Nationality Act 1981, which provides the Home Secretary with the power to deprive an individual of their British citizenship if such action is “conducive to the public good” or if their British citizenship was obtained by means of fraud, false representation or concealment of material fact.
There have been subsequent legislative updates in 2002, 2006 and 2014. In the Immigration, Asylum and Nationality Act 2006, it was deemed appropriate, in the wake of the 2005 London bombings, to seek broad ranging powers to remove citizenship on public interest grounds.
When depriving a person of their British citizenship, the law requires that this action only proceeds if the individual concerned would not be left stateless, albeit no such requirement exists in cases where the citizenship was obtained fraudulently.
What constitutes the “public good” is decided by the serving Home Secretary. The Government has said that deprivation on these grounds is considered an appropriate response to activities including espionage, terrorism, war crimes, serious and organised crime, and “unacceptable behaviour” of the kind mentioned in the then Home Secretary’s statement of 24 August 2005. This last category includes writing or public speaking that glorifies terrorism, foments serious crime or seeks to provoke terrorism or serious crime. There is a right of appeal where the Home Secretary seeks to use these powers.
Under the Immigration Act 2014, the Coalition Government introduced a power whereby in a small subset of “conducive” cases – where the individual has been naturalised as a British citizen and acted in a manner seriously prejudicial to the “vital interests” of the UK – the Home Secretary may deprive that person of their British citizenship, even if doing so would leave them stateless. This action can only be taken if that person is able, under the law of a country outside the United Kingdom, to become a national of that country.
In practice, this power means the Home Secretary may only leave a person stateless (if the vital interest test is met and they are British due to naturalising as such), if that person can reasonably be expected to acquire (or reacquire) the citizenship of another country and is able to avoid remaining stateless.
Whilst this is differential treatment, its application is very restricted and predates the current bill before Parliament. The Government has stated that it considers removal of citizenship to be a serious step, one that is not taken lightly. This is reflected by the fact that the Home Secretary personally decides whether it is conducive to the public good to deprive an individual of British citizenship. It is very important to note that in the period between 2006 to 2018, the number of people deprived of their citizenship amounts to less than 200 individuals.
Clause 9 of the current Bill does not change any of the above provisions. There is no widening of the reasons for which a person can be deprived of their British citizenship or whom the law applies to. Instead, it addresses the process for serving notice to anyone who meets the existing criteria for having their citizenship revoked. It applies in circumstances where there is no way of communicating with the person, or where making contact would disclose sensitive intelligence sources. Even where notice cannot be served, the individual retains their right of appeal. This is an important point. Once a person makes contact with the Home Office, they are given a copy of the deprivation notice and can exercise their statutory right to appeal against that decision. As a result, there is no fundamental change of policy, or expansion in scope, or dilution in protections provided.
Much of the noise surrounding Clause 9 is therefore simple scaremongering. It conflagrates an existing policy with a new procedural provision to generate sensational headlines and stoke unnecessary fears. It is a case of adding 1+1 to make 11 or adopting the Groucho Marx approach: “whatever it is, I am against it”. It is highly regrettable to prey on people’s anxieties in this manner on such a sensitive topic.
However, before these types of emotionally charged perceptions take hold, it is also the Government’s responsibility to provide appropriate reassurance. The lack of clear explanation and sufficient empathy with the concerns of the minority communities should also be addressed. In particular, the fears about two-tier citizenship need to be tackled head-on so that nobody feels that their ancestry makes their rights as citizens precarious or contingent.
Legislation often includes seemingly wide provisions but there are also constraints on the circumstances in which these powers can be exercised. In this particular case, there would have to be legitimate public interest grounds for stripping someone of their citizenship. If this specific clause was a genuinely ‘racist’ or a ‘discriminatory’ provision, I would be the first person to vote against.
I don’t think British Asians, or anyone else, have anything to fear unless they have done something seriously prejudicial to UK interests. There are many things to be concerned about in 2022, but this is not one of them. I would therefore encourage the Government to provide the necessary reassurances before they lose the moral argument.
