Written evidence from Project for the Registration of Children as British Citizens; Amnesty International (NBB0072)

 

Government New Clause 19 (NC19)

Notice of decision to deprive a person of British citizenship

October 2021

 

Introduction:

 

  1. Government New Clause 19 (NC19) first appeared on the Bill Amendment Paper published on 19 October 2021. It is, in part, a response to the judgment of the High Court, given on 30 July 2021, in R (D4) v Secretary of State for the Home Department [2021] EWHC 2179 (Admin). However, NC19 goes far further than would be necessary to address the matter that arose before the Court. In short, NC19 permits, in various circumstances, the Secretary of State to make a decision to deprive a person of British citizenship without giving that person any notice of the decision.

 

  1. As the Court in D4 emphasised (paragraph 50):

             

“…citizenship is a fundamental status. To deprive a person of her citizenship is a very substantial interference with her rights…”

 

  1. In our previous joint submission to the Committee concerning Part 1 (Nationality) of the Bill, we briefly set out the relationship between rights to British nationality and human rights. We do not repeat that here.

 

  1. Whereas NC19 is not concerned directly with the power to deprive a person of citizenship – a power much expanded since commencement of the British Nationality Act 1981 and in ways we consider to be draconian and unjustified – it is concerned with whether a decision to exercise that power is to be made known to the person affected. That is necessary to ensure, amongst other things, a person may take steps to correct the Secretary of State or challenge her decision on appeal under section 40A of the British Nationality Act 1981 or by other means.

 

  1. The statutory framework provides that the Secretary of State must give notice of her decision to make an order to deprive,[1] against which an appeal may be made,[2] before an order to deprive is made.[3] It is our fundamental position that this statutory framework ought to remain in place. Nobody should be deprived of their citizenship unless and until notice is given to them of a decision to do this. The remainder of this submission, however, primarily addresses the ways by which NC19 goes further even than the exception to this that was considered in D4.

 

R (D4) v Secretary of State for the Home Department:

 

  1. The relevant facts are set out in the judgment. D4 was assessed to have travelled to Syria, where she is currently detained, to align herself with Islamic State. A decision was made to deprive her of British citizenship. Notice of this was placed on D4’s Home Office file. On the same day, that decision was acted on and an order depriving D4 of her citizenship was made.

 

  1. The placing of the notice on the Home Office file was deemed to constitute giving of notice to D4 as required by section 40(5) of the British Nationality Act 1981. This accorded with regulation 10(4) of the British Nationality (General) Regulations 2003, SI 2003/548 (as amended by SI 2018/851).

 

  1. The question for the Court was whether regulation 10(4), as amended, was lawfully made and whether compliance with it could, therefore, meet the statutory requirement under section 40(5) that notice be given to D4 of the decision to deprive her of citizenship. The Court concluded that regulation 10(4), as amended, was not lawfully made. Parliament had not given the Secretary of State power to make regulations by which she could avoid the requirement to give notice of her decision to D4. Accordingly, the order to deprive D4 of citizenship was null and void.

 

  1. In her submissions to the Court, the Secretary of State argued:

 

“37. …Service to file is permitted only where (a) the person’s whereabouts are not known, (b) no address has been provided and the SSHD does not know of any address which the person has used in the past or the address provided to the SSHD is defective, false or no longer in use by the person and (c) no representative appears to be acting or the representative’s address is false/no longer in use. Even then, the ordinary requirements of public law mean that the Home Secretary will be required to bring the notice to the person’s attention once it appears that there is a reasonably practicable means of doing so.”

 

NC19:

 

  1. NC19 goes further than is necessary to address the Court’s judgment in three ways.

 

(1)   Removing the obligation to given notice when practicable

 

  1. Firstly, NC19 does not merely seek to provide statutory footing for the practice of deeming notice to have been given in circumstances where a notice is placed on file because there is no known address at which to give the required notice. Instead, it seeks to remove the requirement to give notice altogether.

 

  1. Before the Court, the Secretary of State acknowledged that when it became possible to serve notice of the decision to deprive someone of their citizenship, it would be necessary under the common law to do so. The Court had no doubt that this was, at common law, correct.[4] The position, then, that the Secretary of State sought before the Court was that, where she was without information necessary to be able to give notice, that notice could be deemed given by placing the notice on file and, thereafter, if it became possible to give notice this would be required to be done.

 

  1. NC19, however, introduces new subsection (5A) to section 40 of the British Nationality Act 1981. This states that the requirement in subsection (5) to give notice is not to apply in five alternative circumstances. That is to remove the obligation to give notice altogether. Given the seriousness of depriving a person of their British citizenship, there is no legitimate or proportionate basis for simply removing the obligation to give notice.

 

(2)   Circumstances permitting the Secretary of State to give no notice of her decision

 

  1. New subsection (5A) sets out five circumstances in which the Secretary of State is to be permitted to give no notice.

 

  1. The first of these is in subparagraph (a). This covers the circumstances that arose in D4. That is where “the Secretary of State does not have the information needed to be able to give notice” that is otherwise required.

 

  1. None of the other reasons are necessary to address the circumstances arising in D4 or satisfy what the Secretary of State submitted to the Court was necessary for her exercise of her powers of deprivation. Rather they broaden out the basis on which the Secretary of State may decide not to give notice even in circumstances where she has the information (e.g. the person’s address) that is necessary to achieve this.

 

  1. Of the remaining four circumstances permitting the Secretary of State to choose not to give notice, subparagraph (b) concerns where “it would for any other reason not be reasonably practicable to give notice”. Given the seriousness of depriving a person of their British citizenship, ‘reasonably practicable’ must have an especially restrictive meaning, such as where there are serious reasons why it would be impossible to safely give the required notice. However, it is a concern that what is proposed in NC19 does not make such a restrictive meaning plain.

 

  1. Subparagraph (c) sets out three further circumstances in which the Secretary of State is permitted to not give notice even though she has the information necessary to do so (i.e. subparagraph (a) does not apply) and there is no unreasonable practical impediment preventing her from doing so (i.e. subparagraph (b) does not apply). The three circumstances are that it appears to the Secretary of State that notice should not be given because this is “in the interests of national security”, “in the interests of the relationship between the United Kingdom and another country” or “otherwise in the public interest.”

 

  1. None of these is a legitimate or proportionate reason for not giving notice of a decision to deprive a person of their British citizenship, something that, for obvious reasons, may be necessary for them to be able to take steps to either satisfy the Secretary of State that her decision to do this is based on incorrect or incomplete information or otherwise wrong or to seek to challenge that decision on appeal or by other means. It may even, for example, be that the interests relied upon by the Secretary of State are themselves ones that could and would be revealed as misconceived or even ill-conceived if notice was given.

 

(3) Retrospective application

 

  1. NC19 also seeks to give retrospective application to the regime it introduces. Whereas it would appear that the Secretary of State has long been unlawfully depriving people of British citizenship in circumstances where she has wrongly treated the filing of a notice of that decision on her file as sufficient, it is not legitimate or proportionate for her to seek to make good her past (and ongoing) unlawful action by seeking retrospective application of NC19.

 

Conclusion:

 

  1. The approach of the Secretary of State to deprivation of British citizenship reflects a wider lack of respect for that citizenship and rights to it. It is disrespectful of the fundamental nature of citizenship and citizenship rights and of human rights that are intrinsic to and consequent upon, or related to, citizenship. Whereas the Secretary of State may wish to absolve herself of responsibility for, and to, certain of this country’s citizens, any power to do so must be exercised in a manner that is scrupulously fair with opportunity to correct any error on the part of the Secretary of State including by way of seeking and securing a remedy from an independent judicial authority.

 

  1. Whereas this is not the place to rehearse arguments against the extent of the powers currently available and exercised by the Secretary of State to deprive British citizens of their citizenship – including where this leaves them and sometimes their children in exile and exposed to extremely harsh and life-threatening conditions and/or severe human rights violations – we must emphasise the impropriety of NC19 in permitting such deprivation without notice as described above.

 

 

10/11/2021

[1] Section 40(5) requires that notice is given of the decision to make an order to deprive, the reasons for that decision and the right to appeal against the decision.

[2] Section 40A(1) provides a right of appeal against the decision. In cases where the Secretary of State certifies that information relied upon in making the decision should not be made public for reasons of national security, relationship between the UK and another country or public interest, the appeal lies instead under section 2B of the Special Immigration Appeals Commission Act 2007.

[3] Section 40(5)

[4] Paragraph 49 of the judgment