The Nationality and Borders Bill is under fire in the House of Lords. Some of the criticism is misconceived, as a recent Policy Exchange paper argues. However, much of the criticism directed at clause 9 of the Bill is warranted. This clause would make it lawful for the Home Secretary to deprive someone of their British citizenship without notifying them – or even attempting to notify them – of the decision to this effect. The clause does not change the grounds on which citizenship can be removed and, pace John Major, does not remove the right to appeal against removal, although of course if notice is not given that right of appeal will be difficult to exercise. Nonetheless, the clause is unjustified and should be removed from the Bill or at least sharply amended.
In its original form, introduced to the House of Commons on 6 July 2021, the Bill had nothing to say about deprivation of citizenship. But in November the government amended the Bill, introducing clause 9 in response to a decision of the High Court, R (D4) v Home Secretary, handed down on 30 July. The question that Mr Justice Chamberlain had to answer in that case was whether the Home Secretary’s statutory duty to notify a person that her citizenship was to be removed could be satisfied, in circumstances where her whereabouts and contact details were unknown, by placing a note about those circumstances on a private file in the Home Office. The Home Secretary relied on regulations, made in 2018 under the British Nationality Act 1981 and specifying that notice shall be deemed to be given when a note is placed on file. The High Court held that the 1981 Act did not authorise the making of regulations to this effect, which were thus null and void.
Mr Justice Chamberlain’s reasoning was compelling and it is no surprise that his judgment has now been upheld on appeal, albeit by majority. The 1981 Act authorises regulations to be made for a range of purposes, including in relation to the giving of notice. Regulations made in 2003 provide for notice to be sent to a person’s last known address. The 2018 regulations attempt to deal with the situation in which a person’s whereabouts are unknown and there is no last known address. However, they fall outside the Act because in no way does placing a note on someone’s private file constitute giving notice of a decision.
Nothing in the High Court or Court of Appeal’s judgments involved a challenge to the Home Secretary’s responsibility for national security or to Parliament’s legislative authority. On the contrary, the judgments uphold the law that Parliament made and thus protect D4’s citizenship rights. If the duty to give notice is to be loosened, as the courts have rightly said, Parliament itself must loosen it by amending the 1981 Act. Clause 9 proposes such an amendment.
In attempting to justify clause 9, the government notes that the statutory power to deprive someone of their British citizenship is more than a century old, having been introduced in the British Nationality and Status of Aliens Act 1914 and continued in the British Nationality Acts 1948 and 1981. This legislation focused mainly on cases in which a person became a citizen by way of fraud or had shown himself to be disloyal to the Crown. The Home Secretary could only deprive someone of citizenship obtained by naturalisation; the power did not apply to natural-born citizens. The Nationality, Immigration and Asylum Act 2002 changed this, sweeping away the old law’s focus on criminal wrongs or acts of disloyalty and authorising the Home Secretary to deprive any British citizen of citizenship if satisfied that the person has done something seriously prejudicial to the vital interests of the UK or its overseas territories and would not be made stateless by the deprivation.
The Immigration, Asylum and Nationality Act 2006 went still further, replacing the test of serious prejudice to vital interests with the even vaguer formulation that the Home Secretary simply needs to be satisfied that deprivation of citizenship is conducive to the public good. These Blair-era changes have not been reversed and make British citizenship an insecure right. This is a concerning state of affairs. The question now before Parliament is whether to compound the problem by authorising the Home Secretary to deprive a person of her British citizenship without giving notice of the deprivation and of the statutory right to challenge the decision.
The 1914 legislation required the Home Secretary to give the holder of a certificate of naturalisation notice of the decision, and an opportunity to contest it, including by writing to his last-known address. The 1948 and 1981 legislation required the Home Secretary, before making an order, to give the citizen notice in writing informing him of the grounds of the decision and his right to appeal. By contrast, the Counter-Terrorism and Security Act 2015, authorising the Home Secretary to exclude citizens from returning to the UK or imposing restrictions after return, and authorising the making of regulations about giving the individuals affected notice of these restrictions, explicitly authorised regulations providing when “notice is to be deemed to have been given.”
Clause 9 could reasonably have reversed the High Court’s recent decision by authorising similar “deeming” regulations when actually giving notice is impracticable. But clause 9 is not limited in this way. Instead, it makes a radical and novel change, stipulating, in effect, that the Home Secretary has no duty to give a person notice of her decision to remove his citizenship if (a) she does not have the information necessary to give notice, (b) it would for some other reason be impracticable to give notice, or (c) notice should not be given in the interests of national security, in the interests of the relationship between the UK and some other country, or otherwise in the public interest.
The clause thus goes well beyond what would be necessary to enable the Home Secretary to act in circumstances where the person’s whereabouts or last address are unknown. The effect of (c) is that a British citizen might lose his citizenship without notice, not because of any difficulty in notifying him but because the Home Secretary thinks it best he not be told about the decision, its grounds, or his statutory right of appeal. This would be a major change in legislative policy.
There is a very significant difference between difficulty in giving notice, because someone’s whereabouts are unknown, and deciding not to give notice, because giving notice may have unwelcome consequences. For a British citizen to be stripped of citizenship without notice is unjust if the reason for not even attempting notification has nothing to do with the difficulty of giving notice, but instead has to do with matters such as complicating our foreign affairs or policy. At no point in the past century has it been thought that national security called for depriving British citizens of their citizenship without notice.
The clause should either be removed or sharply amended. An amended clause might provide that if the Home Secretary does not know the whereabouts, or last contact address, of the person whose citizenship she has decided to remove she must publish her decision in the London Gazette or in a dedicated place on the gov.uk website. This would maintain the important principle that before exercising a power to strip someone of the fundamental status of British citizenship the Home Secretary must strive to notify the person of the decision and his or her right to appeal.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford