Committee concerned by new power to make British citizens stateless

• Legislative Scrutiny: Immigration Bill (Second Report)
• Legislative Scrutiny: Immigration Bill (Second Report) (PDF 295 KB)
• Joint Committee on Human Rights (JCHR)

On the day that the House of Lords begins its Committee stage on the Immigration Bill, JCHR, in its second Report on the Bill, expresses concern as to whether the Government’s main purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad. This would appear to carry a very great risk of breaching the UK’s international obligations to the State which admitted the British citizen to its territory. JCHR recommends that the Bill be amended to make it a precondition of the making of an order by the Secretary of State that the deprivation is compatible with the UK’s obligations under international law.

While JCHR accepts that enacting the power in clause 60 to deprive a naturalised citizen of their citizenship, even if it renders them stateless, does not in strict legal terms involve any breach by the UK of its obligations under the UN Conventions on Statelessness, it believes that it will lead to an increase in statelessness.  This would represent a significant change of position in the human rights policy of the UK which has historically been a champion of global efforts to reduce statelessness.

In its report, JCHR:

• expresses surprise at the Government’s refusal to inform Parliament of the number of cases in which the existing power to deprive of citizenship has been exercised while the UK citizen is abroad, or of the number of cases in which the Secretary of State’s decision was taken wholly or partly in reliance on information which in the Secretary of State’s view should not be made public.   Parliament is entitled to know this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice;
• considers that there was time to hold a public consultation on the controversial new power in clause 60 which would have made for better informed parliamentary scrutiny of the Government’s proposal;
• is not persuaded that there are sufficiently weighty reasons to justify the new power being made retrospective, and recommends that the Bill be amended so as to prevent it having retrospective effect; and
• is concerned about the impact of the new power on children and recommends an amendment to the Bill which requires the Secretary of State to take into account the best interests of any child affected when deciding whether to make a deprivation order under the new power. 

In its Report, JCHR also welcomes the Government’s indication that it would adopt a proportionality approach to deciding whether or not to exercise the new power in clause 60 to deprive of citizenship but recommends that the Bill be amended to make it a precondition of an order that the deprivation of citizenship is a necessary and proportionate response to the conduct in question.  JCHR also considers that, for the right of appeal against a deprivation order to be fair, the legal framework must ensure that the Secretary of State is required to disclose to the person concerned enough information about the case against them to enable them to give effective instructions to their special advocate; and, for the right of appeal to be practical and effective, legal aid must be available in all appeals against an order, including when brought from abroad. 

While the JCHR Report focuses on the issue of deprivation of UK citizenship, it also returns to some of the issues set out in its first Report on the Bill.  In the context of that first Report, JCHR:

• recommends amendments to reflect the Government’s stated intention that family members will always be notified if they are facing removal;
• recommends that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently, to remove the risk that meritorious appeals will be prevented from being brought;
• recommends that the Bill be amended by removing the condition of the Secretary of State’s consent for the consideration of "new matters" and instead leaving it to the Upper Tier Tribunal to decide the legal question of the scope of its own jurisdiction;  
• recommends that legal aid be available for out of country human rights appeals against deportation on the grounds that it is in breach of the right to respect for private and family life;
• recommends that the Bill be amended to remove any scope for doubt about the effect of the Bill on the s. 55 children duty, by requiring the best interests of the child to be taken into account as a primary consideration;
• welcomes the Government’s indication that the Secretary of State, when exercising residual discretion to grant permission to occupy premises under a residential tenancy agreement, will take into account the best interests of any child involved; and
• recommends that new guidance is issued, both on the s. 55 children duty, explaining clearly to front-line decision-makers exactly how that statutory duty applies in relation to functions conferred by or by virtue of this Bill, and on the s. 11 Children Act duty, explaining to front-line decision-makers in the health sector exactly how that duty applies in the context of extended charging for NHS services.

"The UK has historically been a champion of efforts to reduce statelessness throughout the world and it is disappointing to see this position shift in such a dramatic way. The new power will lead to an increase in the number of stateless people and exposes British citizens to the risk of being left stateless.  As the Supreme Court recently said, statelessness is an "evil": it takes away the right to have rights. The power does not in itself put the UK in breach of any of its international obligations in relation to statelessness but it does pose the risk of breaching our international obligations to other states.

We are particularly concerned about the power being used when citizens are abroad.  Parliament needs more information about how similar powers have been used in the recent past and assurances about how this power will be used in the future. Retrospectivity, the impact of this power on children and dependants, and the adequacy of safeguards against the possibly arbitrary use of this power are just some of the issues that we have raised in our Report and which the Government needs to address."

Further information

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