3rd March 2021
Despite modern political discourse being dominated by demands of what the ‘state’ should and should not do, there is often little in practice that ministers can do towards their political objectives.
Laws may be passed that may or may not have wanted effects; revenues can be raised and resources allocated that may or may not have any desired impact; international agreements may be made – or broken – that may or may not have certain effects; speeches can be made, and lines spun.
But a good deal of this activity and inactivity is at least one step removed from ensuring any real social and economic change (or lack of change), for government and administration is not an exact science.
And for anything that actually affect the rights of individuals, there would then be the pesky courts with their activist judges and scoundrel lawyers.
Over the last decade, however, one government department realised there were things it could do.
The home office has hit upon the one area of policy where it can make decisions that have direct social and economic consequences, but in a largely law-free way.
The home office could take people’s citizenship and residency rights away.
Certain manifestations of this general policy approach can be seen with the Windrush scandal and in the deportation of those with certain criminal convictions.
And so on.
Just as important as these executive actions, of course, was the threat of such executive actions.
This was not an accident – it was the design of the policy.
That policy was the ‘hostile environment’.
As the former home secretary Theresa May said candidly in a 2012 interview:
“The aim is to create here in Britain a really hostile environment for illegal migration.”
Billboards and signs on vans are one thing, but ready and easy use of executive powers are another.
And the home office – like any addict – began to use this legal power of international displacement more and more.
The home office could do things – and (more-or-less) get away with them.
The next step from stripping people of any residency rights they may have was to deprive them, when possible, of their citizenship rights.
From removing illegal immigrants, to removing those who were from immigrant families but were in the United Kingdom lawfully and indeed were citizens of the United Kingdom.
And so this is what they did.
According to Colin Yeo, in this detailed and informative survey of the use of the power to deprive a United Kingdom citizen of their citizenship:
‘until quite recently, the power to deprive a person of their British citizenship on the grounds of behaviour was almost moribund, having been used against perhaps a handful of Russian spies…in practice, ‘deprivation powers were not used at all between 1973 and 2002’.
The cases mentioned by Yeo will show why many might not mind many of the deprivations – unpleasant individuals who have done highly unpleasant things.
Many would even clap and cheer and shout good riddance.
But each case is also an instance of simple executive power – a ministerial decision, rather than a prior judgment by a court or tribunal – that strips a person of their citizenship of the United Kingdom – even if that person was born a United Kingdom citizen.
Under section 40 of the British Nationality Act 1981 (as amended heavily over the years), the right of citizenship of a person is entirely at the satisfaction of the home secretary.
(See this blog’s post here.)
And once the home secretary is satisfied that you should lose your citizenship then the citizenship is lost, by instant operation of law.
The person affected may seek to appeal such a decision – but they do so from the position of no longer being a United Kingdom citizen.
The decision takes effect before – sometimes long before – it can be considered by any court or tribunal.
This is what raw executive power looks like.
And the home office likes it this way.
Because of the international law in respect of ‘statelessness’ (which this blog set out here), this executive power is usually used (or should be used) only where the person affected already has the status at law of citizenship of another country.
This means it can be used against people with dual citizenship.
And this means it can be used most readily against those who are from first or second generation immigrant families.
So there are now two classes of United Kingdom citizen.
A first class of those who have no other nationality, and so against whom the home secretary cannot (or should not) use their power to deprive them of their citizenship of the United Kingdom.
And a second class of those who will also have another nationality and so can have their citizenship of the United Kingdom instantly removed at the satisfaction of the home secretary.
These second class citizens will primarily be comprised of those from first or second generation immigrant families.
This means, in turn, that many of those affected will tend to be those from black and minority ethnic backgrounds.
On this basis, the operation of this law and policy would be discriminatory against those from black and minority ethnic backgrounds.
The very structure of this law and policy would mean it cannot work any other way.
And so a citizen of the United Kingdom – born in the United Kingdom and with no personal relationship with any other country – can have their citizenship instantly removed by a government minister without any prior judicial step just because they are from an immigrant family.
And the home office likes it this way.
This post is part of a series of posts on the Shamima Begum case.
There is something wrong – very wrong – about the legal situation of Shamima Begum.
That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.
The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.
So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.
Previous posts have included:
- initial thoughts on the illiberal supreme court decision (here)
- the parallel of the supreme court decision with the 1941 case of Liversidge v Anderson (here)
- the legal power of the home secretary to deprive a person of United Kingdom citizenship (here)
- statelessness and the law and the case of Shamima Begum (here)
Further posts will show how the home office and the courts dealt (and did not deal) with important issues in this case.
The purpose of this Begum series of posts is to promote the public understanding of law.
The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.
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