Since the emergence of the Islamic State (IS), an estimated 21 per cent of its 30,000 foreign fighters reportedly travelled from Europe to Syria and Iraq to join IS and participate in the conflict. Such phenomenon raises concern over the stability and the security of the nations from which the foreign fighters are recruited as these radicalised fighters may ‘may pose a serious threat to their States of origin … transit…travel, as well as states neighbouring zones of armed conflicts’ according to United Nations (UN) Security Council Resolution 2178 (2014). The resolution further called upon Member States to co-operate in restricting the movements of foreign fighters.
In response, States enacted laws not only restricting the movement of foreign fighters but also penalising actions that are considered a potential threat to national security and interests. These laws conferred expanded power of surveillance on intelligence and law enforcement agencies; they also restricted immigrant and non-citizen access to the state territory by limiting the right to have a passport and, in more extreme cases, restricted the right to citizenship. However, denationalization not only affects a person’s right to protection, freedom of movement and political participation as he no longer eligible to enjoy the rights and protection provided under the national legal system, but also creates debate that the state is provided an illegitimate enhancement of power ‘at the expense of all citizens and citizenship itself.’ In this context, this essay criticises the scope of counterterrorism laws in the United Kingdom (UK) that enable the deprivation of nationality on security grounds that cannot be justified as an effective counterterrorism mechanism as they would render individuals’ stateless.
Violation of Human Rights
Deprivation of nationality causes a severe erosion of human rights, including the right to life under article 2, and freedom from torture and other inhuman treatment of punishment under article 3 of the European Convention on Human Rights (ECHR). Although the UK government indicates regularly that it has ‘shown itself to be committed to deport foreign nationals involved in terrorist activities in this country fully respecting our human rights obligations’,such commitments have not been much effective. In some cases the UK government went a step further and required a Memorandum of Understanding to formally assure the receiving state would comply with the human rights’ norms of the deportees. However, this set of assurances is highly questionable in cases where deportees are sent back to countries that have poor human rights records, such as Yemen and Syria. In Abu Qatada, the Strasbourg Court was convinced that a mere Memorandum of Understanding may not prevent the violation of article 3 of the ECHR and not assure the right to fair trial because any confession obtained by torture is admissible in Jordan. Further, in states where the executive overly influences the judiciary, there can be no judicial protection or remedies available to the deportees, which fundamentally undermines the principle of the universal protection of human rights.
International law implications
International law forbids any arbitrary deprivation of nationality. According to the 1961 Convention, no State may deprive ‘any person or group of persons of their nationality on racial, ethnic, religious or political grounds’. However, articles 5–9 of the 1961 Convention prescribe range of principles for withdrawal of nationality, particularly the deprivation of nationality to serve a legitimate purpose. In relation to the deprivation as an external act, the international law impacts the rights and interests of other States. In the context of the UK, such deprivation of citizenship impacts the rights and interests of other States in the context of deportation, refusal and re-admission, prosecution of international crimes and application for protection abroad. This part of the essay focuses on the external act of deprivation and criticizes how in each case the UK’s decision to deprive nationality is problematic under international law.
This must also be seen in connection with the International Law Commission’s (ILC) Draft Articles on the expulsion of aliens, whereby article 9 prescribes for the ‘deprivation of nationality for the sole purpose of expulsion. A State shall not make its national an alien, by deprivation of nationality, for the sole purpose of expelling him or her.’ In the Commentary, the ILC noted that ‘deprivation of nationality, insofar as it has no other justification than the State’s desire to expel the individual, would be abusive, indeed arbitrary within the meaning of article 15, paragraph 2, of the Universal Declaration of Human Rights.’ However, it is to be noted that the article does not intervene in the operation of any national legislation for the deprivation of nationality.
This is further affirmed in the General Comment on article 12 of the International Covenant on Civil and Political Rights (ICCPR), where the Human Rights Committee noted that the right to enter one’s own country is more than a concept of nationality. General Comment No. 27 on the Freedom of Movement extended this view, noting that even if deprivation is possible, it will not put the individual outside the right to enter and reside in that country, as that is his ‘own country’. In this context, the deprivation of nationality can be seen as an illegitimate act for a permanent deportation. However, in legal discourse, no State has the right to hand-wash its duties to the deportee, as his right to remain in the country would exist even after his nationality is deprived. However, in the real world, this has not been the case, because the border agencies have never allowed citizens whose nationality was deprived to re-enter the country.
In cases where extradition is required under international law, the UK is obligated to extradite the person ‘without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution…’. Article 5 of the UN Convention Against Torture (CAT), to which the UK is a party, is one example of the international obligation to extradite a suspect. Further, the Questions Relating to the Obligation to Prosecute or Extradite case is an example of the State’s responsibility. There, Senegal was found liable for State responsibility under articles 6(2) and 7(1) of the CAT against Belgium. As such, the UK depriving nationality and deporting citizens who are potential suspects of international crimes may cause the UK to violate its obligation to extradite and may lead to its the UK’s liability for its ineffective approach to countering terrorism.
Further, the UK is one of eight parties to the 1961 Convention. Under part 14 of the Statement of Changes in Immigration Rules and of the new Rule Nos 401 and 403, while an individual ‘satisfies the requirements of Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons, as a person who is not considered as a national by any State under the operation of its law….’ In the event when the other parties to the 1961 Convention may not receive the individual, whose nationality is deprived by the UK, the UK will be left with an obligation under the 1961 Convention to readmit the individual in order to prevent a condition of stateless to the individual. This may reflect on the reputation of the UK, on the one hand, for prosecuting an ineffective approach that deprives the nationality of the individual and, on the other hand, as a signatory without complying in good faith with the 1961 Convention.
First, the deprivation of nationality is an unprecedented blurring of the framework of security policies, as it can be invoked without any trial or criminal conviction relating to terrorism. It is on the basis of a dominant logic of prevention based on the logic of suspicion. However, it is also an echo of the colonial history of governance by racialized conception of social order, where the citizenship is not a secure status, but a reward for conformity to the bounds of defined ‘acceptable behaviour’. This resort to deprivation constitutes the securitization of citizenship as a policy, where the pre-crime preventive paradigm is encouraged as an option to counter the new definition of ‘radicalization’, which includes political violence, holding views against the government and ‘vocal opposition to (…) British values’. Although the notion of civic citizenship involves a more inclusive national identity compared to the legal definition of citizenship and belonging based on ethnicity, the deprivation of nationality as a counterterrorism measure nevertheless creates normative boundaries of exclusion and a hierarchy between the ‘good and tolerated’ citizenship and the ‘failed’ citizenship.
Second, it is the State that has the fundamental duty to provide security for its citizens. Permitting the deprivation of citizenship simply allows States to disregard the consequences. Being statelessness without diplomatic protection or conveyance by passport renders the deportee in an extremely vulnerable position to abuse. A good example is the 16 British nationals whose passports were revoked when they were abroad: two were killed in a drone attack by the US, one was kidnapped, and one was rendered by US security services. While there has been debate over whether denationalization is an appropriate punishment, the position that lets an individual remain stateless is condemnable.
Third, the deprivation of citizenship creates a situation where instead of citizens having the sovereign power to choose their government, the government chooses who they wish to govern; deprivation is no longer based on ‘conductive to the public good’, for as Lord Slynn notes in Secretary of State for the Home Department v Rehman, ‘there is no definition or limitation of what can be “conducive to the public good” and the matter is plainly in the first instance and primarily one for the discretion of the Secretary of State.’ This phrase therefore provides an ill-defined ground for the UK government to deprive nationality of an individual and at the same time create ‘a dubious and shifting hierarchy of citizenship’.
Depriving the nationality of citizens on mere suspicion for links with terrorist organisations as a counterterrorism mechanism has failed from both legal and rights-based perspectives. This essay concludes there are four main reasons that reflect the deprivation of nationality problem. First, it disrupts the UK’s international commitment to reduce statelessness, and its obligation under the UN Security Council Resolution to bring suspects of terrorism to justice. Second, it undermines the UK’s commitment to uphold human rights and the rule of law as a liberal democratic state while countering threats against its national security and national interest. Third, revoking nationality is an ineffective security strategy against terrorism because of practical implications. In the same vein, the above analysis recognises that mere banishment and deportation could be a measure that may backfire the real intention in countering terrorism because it fails to address the root cause for the radicalisation. Such avoidance in the long term may produce counter activities against the state and keep the national security at constant risk. Fourth, the power of the UK to revoke the citizenship of naturalised citizens who have no second nationality—which causes stateless—thus creates a legal black hole, into which once an individual fall he cannot be pulled out.
Compared with the deprivation of nationality, the measures proposed by sections 1 and 2 of the CTA 2015 such as seizure of passport from personnel suspected of involvement in terrorism, and temporary exclusion orders are more effective because they involve some judicial intervention and temporary suspension of individuals within the UK, which means the state will have the power to retain the suspect whenever required. There are also other counterterrorism measures that, with the adequate intervention of judiciary, have been an effective security strategy against terrorism. Thus, this essay proposes that the UK must revoke its laws concerning the deprivation of nationality as a counterterrorism measure but alternatively introduce laws that would address issuing permits to return to the terrorist suspects on individual basis, set specific obligations to the individuals after return to the UK, set tribunal that could review the decision of temporary exclusion, and strict the terrorism prevention and investigation measures with consideration of enforceability, and upholding international law and obligations in the contemporary counterterrorism context that will make the UK counterterrorism response effective.