The Immigration Bill: legalizing medieval exile

By Rebekah Read

The Immigration Bill will give the Secretary of State power to exile those who she thinks have acted in a way “seriously prejudicial to the vital interests of the UK” regardless of whether this will result in them being stateless.  The civil liberties lawyer Gareth Pierce (of Birmingham 6 fame) has said that this is akin to “medieval exile – just as cruel and just as arbitrary.”

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Currently, citizenship is only allowed to be revoked if the individual will not be left stateless (apart from circumstances where the citizenship was obtained by fraud).  This executive power was granted in the Nationality, Immigration and Asylum Act 2002 (with the bar subsequently lowered in the Immigration, Asylum and Nationality Act 2006).

When the Bill passed through Parliament in 2002, the question of whether the Secretary of State should be given this power even when it wouldn’t result in statelessness was hotly disputed.  The power in itself was such a concerning and contentious extension of executive discretion, the possibility that it would be extended so as to include those who would be made stateless was far from anyone’s mind.

Clause 60 of the Immigration Bill, which allows the Secretary of State to remove an individual’s citizenship even when this would leave them stateless, was hurriedly put before the house to take time away from debating on the Raab amendment, but it has been on the agenda for a while.  The Bill is currently at Committee Stage at the House of Lords.

The reason for this frightening extension of power is because Theresa May is royally pissed off with Hilal Al Jedda, whom she has repeatedly tried to deport. May just can’t get rid of Al Jedda, most recently because the Supreme Court ruled that this would make him stateless (although this hasn’t stopped her from removing his citizenship a second time, so that the appeals process will have to start from scratch).  She has explicitly stated that the reason for this clause is so that she can get rid of him.  There are many reasons why clause 60 is a bad thing.  Here is an outline of just four of them.

  1. It is contrary to the international push to reduce statelessness

After World War 2 statelessness became a real issue. Unprecedented levels of individuals were effectively rendered stateless, and a link between human rights violations and the absence of national protection became apparent.  These concerns led to the UN Convention relating to the Status of Stateless Persons in 1954, and the UN Convention on the Reduction of Statelessness in 1961.  The UK was one of the main promoters of these Conventions and ratified them both. When the Nationality, Immigration and Asylum Bill was debated in 2002, Angela Eagle, who was a junior home office minister at the time, said that the Bill excluded those who would be made stateless because doing this “will bring us into alignment with new and more modern international thinking with regard to nationality law”.

In recent years there has been a renewed worldwide push to encourage nationality laws which will reduce statelessness. The UN High Commissioner for Refugees said the following in his preface to the UNHCR Ministerial Intergovernmental Event on Refugees and Stateless Persons – Pledges 2011:

Statelessness was one of the most neglected areas of the global human rights agenda…awareness of the problem of statelessness has expanded significantly in all regions, and substantive progress has been made in addressing it.

Clause 60 of the Immigration Bill as it currently stands will severely weaken the voice of the UK, which is currently in a proud position of solidarity, when attempting to hold other countries to account in the context of reducing statelessness.

  1. It will lead to incalculable human rights abuses

An individual who is made stateless in this way will become an undocumented migrant and be unable to get a job or access benefits.  If the stateless individual is in the UK and is able to show that these measures will leave them in a position of destitution, the Government has an obligation under article 3 (torture) of the Human Rights Act to either offer them a period of leave to remain or provide them with some kind of support package[1].

However, the Government tends to deprive someone of their citizenship when they are out of the country; Mr Al Jedda is currently living with extended family in Turkey, so this is where he will be rendered stateless when the Bill is made law. These individuals are left attempting to instruct lawyers to appeal the decision from abroad, with evidence drip-fed to them because of the closed material system.  The Bureau of Investigative Journalism reports that, in the 10 years following the 2002 Act, 41 people were stripped of their British nationalities (most of these by the current coalition government).  Of these, there are only three known cases (including Mr Al Jedda) of individuals who have successfully appealed.  Of the other 38, two have been killed in US drone strikes and one has been seized by the FBI and rendered to New York.

Baroness Kennedy spoke about the human rights implications of these measures when the clause was debated in the Lords in February.  She acts for someone whose citizenship was removed whilst he was in Somalia, where his grandmother lives.  He was given no details of why he was a threat to national security, and crossed the border to Djibouti to try and lodge an appeal with consular support where he was picked up by the secret police.  He was interrogated by Djibouti police and US security services, who then flew him to the US.  Baroness Kennedy said:

“There was no extradition procedure; no due process in any court; no disclosure of the reasons for any of this; nothing. That is what happens when you are rendered stateless.  In this new world, where is law? Where is the rule of law of which we are so proud? No American citizen can have their citizenship removed, ever. We have no publicly available evidence as to what my client is supposed to have planned or done…My client was rendered stateless when his citizenship was removed and Britain made it possible for a whole set of lawlessness and serious abuses of human rights to follow. It does not matter to me, at the moment, whether he is a threat to national security. What should concern this House is the removal of legal protections and safeguards, which is what statelessness means.  I am ashamed that we have sunk to this…we do have certain proud traditions in this country; we do offer asylum to people in need of protection; we do believe that people should be brought before courts if they have done things that are wrong. We do not believe in putting hoods on people’s heads, seizing them and transporting them to other places without any kind of court process. That is not what Britain stands for. That is not what we should allow. That is what statelessness means.”

  1. It is detrimental to the ‘war on terror’

The identities and whereabouts of 24 of the 41 individuals whose citizenship was revoked between 2002 and 2012 remain unknown.  It does not seem to be in the interests of national security to let terror suspects loose and undocumented in whichever country they find themselves when their citizenship is removed.

Of course, most people would agree that the best place for such unattractive characters is prison.  There are a myriad of crimes which such individuals invariably commit when engaged in violent subversive activities. Offences go well beyond substantive acts to include, for example, planning, conspiracy, and possessing material for a purpose reasonably suspected of being terrorist and directing ‘at any level’ the activities of a terrorist organisation.[2]  The charity Liberty, in its briefing on this clause, said “We have one of the oldest and most respected justice systems in the world and should take responsibility for securing the prosecution of people who pose a threat to the safety of those in this country and across the world.”

This point was made by the Tory Peer Lord Kingsland in the debates on the 2002 Bill, when the power was first introduced and citizenship was not even allowed to be removed when it would result in individuals being made stateless.  He said the following:

“Why should such a person not be prosecuted in the normal way in our criminal courts instead? Why on earth should the Secretary of State be given this discretion to pick somebody out of the normal judicial process and deal with him by his own subjective judgment…

“…[depriving a person of British citizenship] must be against the rules of comity in international law. If we identify someone as a person proposing to commit a serious terrorist offence, for example, surely the obligation is on us to deal with that person. If we simply deport him, we shall be handing on—in my submission, irresponsibly—this terrorist problem to another state which may not have the same capability of dealing with it as we do. It cannot be a proper response to the terrorist threat to refuse to deal with it ourselves if the act involved occurs in our jurisdiction or in another jurisdiction from which we can gain extradition. That would be irresponsible of us.”[3]

  1. It discriminates against naturalised British citizens

Sadly this is just one more contribution to the gradual erosion of the liberty of the few in the name of ‘national security’.  This gradual erosion is concerning because the public are failing to realise that (1) it is happening; and (2) It is important, even though it’s not going to effect the personal liberty of most British voters.  In this case we are reassured of this by the fact that the measure only applies to naturalised British citizens.

This discriminatory aspect of these measures was criticized at the Commons debate by Jacob Rees-Mogg, who expressed concern about the message these measures send to the nation at large, saying:

“Once any one of us has a passport that says we are British, we are as British as anybody else, whether they were born here or got their passport five minutes ago. It is incredibly important that there is equality before the law for all Her Majesty’s subjects who are living in this country and have right of residence here.  I worry that if we give the Government the ability to take passports away from a certain category of British subject but not from others, it will create a potential unfairness and a second category of citizen…Once a passport is in somebody’s hands, they ought to be no different from anybody else in any legal respect.”[4]

This issue could be addressed by giving the Secretary of State the power to take citizenship away from citizens born British as well. This would make the British public sit up and take notice, which is why it won’t happen.  By restricting the power to those who are naturalised citizens the government knows that it will avoid too much public scrutiny.  This discriminatory aspect highlights the depressing “us” and “them” mentality that anti-terror legislation takes advantage of and encourages, which Conor Gearty explores in detail in his (highly recommended) book, Liberty and Security [5].

But never mind the embarrassment when the UK speaks out against statelessness, the irresponsibility of letting terror suspects loose and undocumented and the discrimination against those not born British, because Theresa May wants to be rid of Hilal Al Jedda.  Hard cases make bad law, and this concerning clause should not be allowed to slip into law without some serious scrutiny[6], but sadly I fear this is not a priority for either side of the chamber.


[1] This is dependent on the suffering of the individual as a result of their destitution constituting inhuman and degrading treatment. Para 78, R (on the application of Limbuela) v Secretary of State for the Home Department  [2006] 1 A.C. 396

[2] This point is made by Conor Gearty in relation to the Anti-terrorism, Crime and Security Act 2001 in his book, Liberty and Security, 2013 Polity Press, p88.

[3] HL Report 9 October 2002, cols 277-278

[5] Conor Gearty, Liberty and Security, 2013 Polity Press

[6] It should be noted that there are many other parts of the Bill which are also concerning – see Liberty’s briefings for more information

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4 comments
  1. senex72 said:

    What seems in terms of accumulated legal comment as so certain may in fact not be.
    First provisions for permitted immigration afterWW2 in Europe might well be seen as justifiable in the circumstances of that time; namely large numbers of displaced persons resulting from our involvement. There is no reason why these arrangements should be regarded as applicable universally or indefinitely, and rejection if arguments to the contrary, distressing though that may be in some quarters, are not invalid thereby. It seems perfectly sound in a secular democratic state to argue that the hard-won rights of citizenship and its attendant benefits need to be earned, and cannot be conferred automatically or without evidence of commitment to the secular ideals and contribution in practice to our secular welfare state and the privatisation of religious belief..

    Again there is no reason to suggest that prison is the default option – it is expensive, cruel and destructive of opportunity to integrate subsequently, and widely criticised on many fronts. Exile – either external or internal – has long been an alternative preferred because it offers the opportunity to seek integration, learn work, gain new life and acceptance elsewhere; for instance someone settled in Turkey might well, by acting judiciously, gain better preferment there.

    Third the idea that Britain has an unbeatable system of justice is at best mere opinion. One might say British Justice is the finest money can buy? Certainly the silencing of juries (the only democratic element in a court), the adversarial as opposed to inquisitorial system and the establishment of a “professional class” of pleaders might well seem anti-people, perverse and even something of a financial racket. It is not necessarily a system automatically commanding universal acceptance, and its judgements are often publicly denounced by relatives of injured, abused or killed persons It would seem the courts, in the grip of an inward-looking caste, may be failing to satisfy the judicial anger of the Sovereign English People.

    So perhaps we should be cautious in launching these fulminatory attacks?

  2. John said:

    I tend to go along with the precautionary principle on most matters. Anything that undermines the quality of rights and law for anyone can end up undermining those same rights for everyone. The government should be careful about what it wishes for. Look at what happened after Richard II exiled Henry Bolingbroke in 1398, and all the trouble that caused…..

  3. senex72 said:

    Of course for example Alcibiades when exiled to Sparta made trouble for the Athenians, but was then exiled to by Sparta to Persia etc..
    But dealing weakly with a resident political enemy is not the same as refusing admittance to an outsider, or delaying civil rights for 5 years until allegiance is shown and exiling in the meantime. H A Jedda is no Bolingbroke or Alcibiades (where indeed prison or death might have been more effective and the point made is RII’s weakness). The parallel would be too fanciful for serious consideration unless you are proposing the death penalty as a safer course?

  4. google said:

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