U.K. Home Office Wants the Power to Deliberately Render People Stateless

By Elizabeth Gibson

Statelessness is normally the purview of systematic discrimination, mass displacement, or state death – Rohingya living in a state of eternal limbo in refugee camps, families of Haitian descent trapped as an underclass in the Dominican Republic, or former residents of the Soviet Union who were abroad when their country literally ceased to exist.

Now, the United Kingdom is toying with making statelessness a punishment, and the international human rights community is less than amused (to use some British understatement).

A stateless person has no recognized citizenship in any country. Real statelessness is not just having your passport revoked (like Edward Snowden), it is legal non-existence, a lack of the “right to have rights.” During the House of Lords debate on a proposed immigration bill amendment today, Baroness Helena Kennedy explained:

“Deprivation [of citizenship], with all its consequences in the modern world, is equivalent to a penal sanction of the most serious kind, but imposed without a criminal trial, without a conviction, without close and open examination of the evidence, and without an effective opportunity of defence, contrary to the requirements of due process.”

Now, in fairness, statelessness exists in every country to varying extents – there are an estimated 12 million stateless people in the world. There also are other cases of states stripping someone's nationality based on national security or moral character. However, most of the world is seeking to reduce statelessness, and countries like the United Kingdom generally receive stateless people from other parts of the world but rarely create statelessness. For example, the United States just reworked its nationality law to eliminate a rare form of accidental statelessness last month, and the United Kingdom itself was applauded by the U.N. Refugee Agency last year for introducing a mechanism that created a path to legal status for stateless persons.

In spite of this, the United Kingdom is currently entertaining an immigration bill amendment that would allow the Home Secretary to revoke the nationality of citizens whose presence she deems “not conducive to the public good.” Essentially, this means terrorists. However, while everyone agrees that terrorists are a threat to national security, normally countries with rule of law send terrorists to court and then prison as opposed to stripping them of their existence.

The proposed amendment came from the U.K. Home Office in response to a ruling of the Supreme Court of the United Kingdom, which held that the Home Secretary could not revoke someone’s citizenship if it would render him stateless. The court’s decision was based on both an explicit ban under U.K. law on stripping a person’s citizenship if it would result in statelessness and obligations under the 1961 Convention on the Reduction of Statelessness.

However, the convention also provides a loophole based on narrow grounds, including if a person 1) disregards an express prohibition on serving or receiving payment from another state or 2) undertakes conduct seriously prejudicial to vital state interests.

In order to invoke one of these grounds to render someone stateless, the convention requires that a reservation be made to the treaty and that these grounds be enumerated in state law at the time the reservation is made. The United Kingdom did file a reservation and did have such a law in place. However, subsequent immigration legislation has changed the relevant language, and the Nationality, Immigration and Asylum Act of 2002 included an express prohibition on stripping someone’s citizenship if it would render him stateless. All of this has prompted a debate over whether the United Kingdom permanently lost its power to render someone stateless under the convention when it amended the original legislation. This idea is based on the treaty language requiring that the law exist at the time the reservation is filed.

However, even setting that argument aside, removing a person’s citizenship also implicates other international obligations. Statelessness leaves people vulnerable to human rights abuses by making it more difficult for a person to access both civil and political rights as well as economic, social, and cultural rights. For example, the European Court of Human Rights has recognized that arbitrary deprivation of nationality may violate the right to respect for private life.

Furthermore, what is the point? How does telling someone that he is no longer a U.K. citizen make the people of the United Kingdom any safer? The United Kingdom cannot deport people unless another country agrees to receive them, and members of the House of Lords pointed out that states are less likely to take someone who is stateless for fear of being burdened with them.

The House of Lords also quoted Guy Goodwin-Gill, a professor of international refugee law at the University of Oxford, as stating that:

“Any state which admitted an individual on the basis of his or her British passport would be fully entitled to ignore any purported deprivation of citizenship and, as a matter of right, to return that person to the United Kingdom.”

The United Kingdom already has used existing law to strip 37 dual nationals of their U.K. citizenship in the last three years (their second citizenship meant they would not be stateless). The Bureau of Investigative Journalism has an excellent piece on what loss of citizenship has meant for these ex-Brits, including two who were killed by a drone strike a year after losing their citizenship.

Luckily, politicians from all the major parties in the United Kingdom appear to be skeptical of the Home Office’s proposal. Check out the live tweets from the House of Lords debate today over at the Bureau of Investigative Journalism.