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18 January 2022

Exclusive: Nationality and Borders Bill is “unconstitutional”, says top law firm

New powers sought by the government to strip British citizenship have been deemed “exorbitant, ill-defined and unconstitutional”.

By Ben van der Merwe

A legal opinion by the leading international law firm Leigh Day describes powers contained in the Nationality and Borders Bill as “exorbitant, ill-defined and unconstitutional”, the New Statesman can reveal.

Clause nine of the bill would effectively remove the requirement for the Home Secretary to notify an individual when stripping them of their British citizenship, affecting the fundamental rights of an estimated six million people in England and Wales, according to exclusive figures calculated by the New Statesman.

The 41-page document, co-authored by renowned human rights barrister Raza Husain QC, argues that the new powers are at odds with both common law and Britain’s obligations under the European Convention on Human Rights.

[See also: What does the Nationality and Borders Bill mean for you?]

The legal opinion was commissioned by the Good Law Project, working with the advocacy groups Cage and Media Diversified, and authored by barristers Raza Husain, Jason Pobjoy and Eleanor Mitchell.

Muhammed Rabbani, managing director of Cage, described the Bill as a “brazen assault on human rights” and said it “must be challenged”. He said, “citizenship is a right we must all enjoy equally”.

Jolyon Maugham QC, director of the Good Law Project, said: “Whatever their intent, provisions which make it easier to remove the contingent citizenship held by large numbers of black and brown people are racist in effect. The Government is invited to reflect on whether it wishes to embed racism in our legislation.”

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The three barristers who authored the opinion note that the government’s existing powers to strip foreign-born Britons and dual nationals of their British citizenship have “an overwhelmingly disproportionate impact on people of non-white racial and ethnic backgrounds”, and argue that “the prospective impact of [clause nine] would also fall disproportionately” on the same groups.

The New Statesman previously reported that non-white ethnic minority residents of England and Wales are eight times more likely to be potentially eligible for deprivation of citizenship than white residents.

“Exorbitant, ill-defined and unconstitutional”

A Home Office spokesperson tells the New Statesman: “There are inaccurate interpretations being reported on administrative changes to deprivation powers in the Nationality and Borders Bill.

“Removing British citizenship has been possible for over a century, and is used against those who have acquired citizenship by fraud, and against the most dangerous people, such as terrorists, extremists and serious organised criminals.

“This change in the Bill is simply about the process of notification and recognises that in exceptional circumstances, such as when someone is in a war zone, or informing them would reveal sensitive intelligence sources, it may not be possible to do this.”

In response to critics, the government has repeatedly said that clause nine is “necessary to avoid the situation where we could never deprive a person of their British citizenship just because it is not practicable, or not possible, to communicate with them”.

The authors of the legal opinion describe this as “simply incorrect”, noting that existing legislation makes “specific provision” for such cases: “Contrary to the impression that appears to be given in various Home Office statements, Clause 9 is not filling some obvious gap: it represents a deliberate choice to extend the scope of the Secretary of State’s powers.”

[See also: Exclusive: British citizenship of six million people could be jeopardised by Home Office plans]

The authors argue that the new powers are “identified in terms so broad and vague that, on their face, they do very little to constrain the exercise of the Secretary of State’s discretion”, and that “it is difficult to see how a person – even with the benefit of legal advice – could have any idea whether… they were liable to be deprived of their citizenship without notice”.

Clause nine would, the authors write, give the Home Secretary the power “to make a deprivation order without notice, even where (a) she has the information required to give notice; (b) it is reasonably practicable for her to do so; and (c) there are no national security or foreign relations reasons not to”.

They note such decisions would be “subject to few if any procedural safeguards capable of protecting those affected from arbitrariness”, with no mechanism for independent review other than through the appeals process, in contrast with systems in Australia and New Zealand.

[See also: Exclusive: Appeals against being stripped of UK citizenship reach record levels]

As a result, the authors argue, clause nine “would substantially increase the risk of individuals being deprived of their British citizenship arbitrarily and in contravention of Article 8 [of the European Convention on Human Rights]”.

Clause nine would also have retrospective effect, making past deprivations lawful where previously they had been unlawful due to a failure to provide notice.

The lawyers add: “Importantly, this appears to be the case irrespective of whether the circumstances in which the Secretary of State failed to give notice would have fallen within the new exceptions.”

The right of appeal

The authors go on to argue that clause nine would “impede [the right of appeal] in real and significant ways” by allowing notification, and therefore the appeals process, to be delayed indefinitely, at which point important evidence may no longer be available.

Even if such an appeal is successful, the authors point out, “a person will be unable to access the benefits of British citizenship” until it succeeds.

This week, a 40-year-old London-born man known as E3 is returning from Bangladesh, where he has been stranded since 2017 after the Home Office unlawfully deprived him of his citizenship. He has never been charged with an offence or informed of the detailed allegations against him.

[See also: Priti Patel’s powers to revoke citizenship are the broadest in the G20]

Despite E3’s successful appeal, the Home Office is seeking to deny his young daughter British citizenship on the grounds that E3 did not hold British citizenship at the time of her birth in 2019. 

The powers of home secretaries in the UK to deprive citizens of their nationality have been continually expanded since 2002 under successive Labour, coalition and Conservative governments, and are now the broadest in the G20.

The number of deprivation orders has increased from zero between 1973 and 2002 to at least 455 since 2011, including 104 in 2017 alone. A petition to remove clause nine from the Nationality and Borders Bill has attracted 320,000 signatures.

A separate legal opinion by the same barristers, published in October 2021, scrutinised the bill’s provisions relating to asylum seekers. They concluded: “This bill represents the biggest legal assault on international refugee law ever seen in the UK”.

The bill is due to return to the House of Lords later this month.

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