‘Civis Britannicus Sum’ No

Longer? - Deprivation of British

Nationality
Caroline Sawyer

At a glance
Deprivation of British nationality used to be imposed only on those who had naturalised,
and broadly because the person had either committed something akin to fraud in obtaining
British nationality or clearly breached their allegiance to the country. The grounds now
include, that the Secretary of State considers that the deprivation is conducive to the public
good, and the process also applies to those born British in Britain. The only limitation on
the Secretary of State’s powers are that in some circumstances a person may not be left
stateless, which has produced some difficult cases on foreign nationality laws. The process
is implemented by service of a deprivation notice and current practice is to do this while
the person is out of the country, so they cannot come back, only adding to the difficulty
of resisting a decision against which, in any event, there is barely any grounds for appeal.
As yet, the process has been used principally against naturalised Muslims (and one Russian
spy). Whilst this may unfortunately explain the lack of public and academic disquiet at the
extent of the powers, this article suggests that the widespread lack of knowledge of that
extent, especially that the rules apply to the British-born, may be based in a disbelief that
Britain would behave thus to its own citizens – a further hurdle should anyone seek to
resist deprivation made by mistake or malice, both of which rare events the legal process
should still be equipped to deal with.

D eprivation of nationality is not a new concept, and nor is it new that it should be part of
the law in Britain. Citizenship in the modern world is particularly important in the age
of human rights since, as Hannah Arendt famously said, it gives the ‘right to have rights’.1 The
right of a sovereign state to define its members is fundamental to international law; the need to
ensure that this does not leave individuals or groups outside the law a secondary issue.2 The ideal
of the primacy of citizenship is older than the idea of human rights in Britain; many academic
papers still take their titles from a nineteenth century episode when the Prime Minister, Lord
Palmerston, blockaded Athens to defend a British subject, comparing the importance of being
British to that of being a citizen in the ancient Roman Empire.3 It might be assumed that

1 Hannah Arendt The Origins of Totalitarianism. (New York, Harcourt Brace Jovanovich, 1968) at pp 296-7.
2 Fred K Nielsen ‘Some Vexatious Questions Relating to Nationality’ (1920) Vol 20, No 8 Columbia Law Review 840-861.
3 ‘As the Roman, in days of old, held himself free from indignity, when he could say, Civis Romanus sum, so also a British
subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will
protect him from injustice and wrong.’ (Commons, 25 June 1850, Parl Debs., cxii, col 444).

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deprivation of such a strong, established status requires heavy procedures, perhaps even a trial
for treason, or that Britain, with its relatively stable constitutional history, would have a solid
process for establishing that any deprivation was warranted. Anecdotally, it is often still assumed
that only those who have naturalised by a grant of citizenship in later life, rather than been
born British in the UK, can be deprived of their British citizenship. Over the past decade in
particular, though, the law and practice of deprivation has changed radically. The power of
deprivation has been extended until it is almost an arbitrary power, exercisable on the broadest
of grounds by simple service of a notice and against anyone, rendering British citizenship itself
a lesser and weaker status.
As with many changes in the area of status during recent years, the courts have put up
something of a fight against claims that decisions cannot be reviewed, though where the powers
are so wide, the scope is limited. Deprivation of citizenship may be contested because it is
alleged that the citizenship was obtained by fraud or mistake and that is denied. The courts
have found a power, where the deprivation is asserted to be ‘conducive to the public good’,
generally on the grounds that the appellant is involved in terrorism, to review whether the
Secretary of State’s ‘consideration’ had a reasonable basis to it. The most common phenomenon
is however someone asserting that the deprivation would leave them stateless; sometimes, this is
permissible under the law, though if the intention was deportation, clearly deprivation cannot
further that end usefully if there is no country to which to deport the person. However, in
some circumstances – where the UK’s obligations under the Convention on the Reduction of
Statelessness 1961 would otherwise be breached - a person cannot be deprived of citizenship
unless they have another nationality. Unexpected as it may be, most deprivation case reports
therefore currently concern the attempts of tribunals and courts to make findings of fact on
other countries’ nationality laws. The sense overall of the current position of the British law of
deprivation of citizenship is, not least in terms of public understanding, one of dislocation into
new and unfamiliar territory.
The changes to deprivation law and practice in the last decade have wrought a
fundamental change to the legal meaning of being British. The origins of British citizenship –
a term of specific legal meaning only from 1983 – are in a common law, monarchical system
of nationality by birth and allegiance. British nationality was historically inclusive of all those
born on British territory, which was extended one generation to those whose parents were
born in the Empire and could also be acquired by naturalisation. Provisions for removing
British nationality from those who already had it were generally very limited. The idea that
there might be ideological objections to getting rid of one’s own population by legal means
seems to have arisen in the nineteenth century, and always to have focused on an abhorrence
of statelessness, as well as its not being imposed as a punishment. The Institute of International
Law resolved in 1896 that a person should not be made stateless by renunciation or deprivation
of citizenship, and ‘denationalisation’ should not be imposed as a penalty.4 Nationality seemed
to some to be inherent: the jurist Estanislao Severo Zeballos considered that a person could
not be deprived of nationality against his will.5 Historically, states did not, in practice, legislate
widely for deprivation save in the cases of those who had taken up with foreign armies and
refused to withdraw from them, or who had obtained naturalisation by fraud.6

4 Article 6, Resolution of 29 September 1896, Annuaire XV (1896) 271. For discussion of the modern face of ‘Citizenship
Revocation as Punishment’ see Shai Lavi (2011) Vol 61 University of Toronto Law Journal 783.
5 La nationalité au point de vue de la legislation comparée et du droit privé humain III Paris, 1916 752-3.
6 Lawrence Preuss ‘International Law and Deprivation of Nationality’ (1934-35) Georgetown Law Journal 250-276. For a
few exceptional crimes that might lead to deprivation see pp 257-8.

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The First World War led countries all over the globe, however, to legislate against citizens
of, and those loyal to, enemy states. This generally entailed revocation of naturalisation, in a
manner which the American Lawrence Preuss described as ‘apparently based upon the theory
that the act of naturalization has essentially the nature of contract’, rather than the deprivation of
citizenship acquired at birth.7 Nevertheless, when the First Committee (on Nationality) met at
the Codification Conference in The Hague in 1930, it found little agreement amongst the states
on the international law of deprivation, save the continuing general feeling that it should not be
inflicted as a penalty and a solider view that it should not be done so as to result in statelessness.8
Elsewhere in Europe during the twentieth century, territorial boundaries were redrawn
but also populations were shifted, by physical or legal expulsion or by genocide. These policies
involved the exceptional use of laws of deprivation of citizenship (also called elsewhere
‘denationalization’ or ‘expatriation’) which were, of themselves, often on a spectrum rather than
necessarily exceptional; deprivation of citizenship, was not a new or exceptional idea in itself,
but the available legal provisions and structures took on a different role in the mass political
restructurings of the century’s earlier decades. The aftermath of the Russian Revolution of 1917
led to an émigré population of millions who did not become Soviet citizens, and to confusion,
often still persisting, between refugees and the stateless.9 In the declining years of a centuries-
old empire that had generally accommodated its minorities, Turkey ‘exchanged’ populations
with Greece in the 1920s10 and massacred the Armenian population; speaking of this in Turkey
remains highly controversial. The Fascist régimes of Germany and Italy withdrew citizenship
rights from racially-defined groups as well as political dissenters and perceived social deviants
in the 1930s and 1940s, and Germany attempted genocide. In France, the Vichy government
of the 1940s rescinded the naturalisation of many foreign-born citizens, and deported others.11
The Second World War saw a variety of provisions for individual deprivation for cause across
the globe. In the restoration of order after World War 2, the international and legal structuring
included the international law ‘right to a nationality’ and the prohibition on arbitrary or mass
deprivation,12 but, just as there was no international law on attribution or recognition of
citizenship, so there was no international prohibition or restriction on individual deprivation.
Laws allowing individual deprivation were relatively commonplace and uncommented on,
though they were also largely restricted to those who had naturalised rather than those born to
citizenship.
British law of deprivation of nationality largely followed the conservative path in the
twentieth century. Historically nationality could be lost by operation of law on certain individual
choices – by a woman marrying a foreign national, or a person naturalizing in, or transferring
allegiance to, a foreign state. Individual deprivation for cause however followed showing

  7 Preuss, above fn 6 p 263. In the United States an ambiguous Expatriation Act of 1868, originally intended to protect
naturalised US citizens returning to their former countries, gradually became the justification for finding that a citizen
had expatriated himself. The Expatriation Act of 1907contained a presumption that where a person resided for two
years in the country of their former nationality that they had ‘ceased to be an American citizen’.
 8 Conference for the Codification of International Law, Meetings of the Committees. (League of Nations Publications, 1930.V.).
 9 For contemporary discussions of the phenomenon, see J Fischer Williams ‘Denationalization’ (1927) Vol 8 British
Yearbook of International Law 45 or Louise Holborn ‘The Legal Status of Political Refugees 1920-1938’ (1993) Vol 32
The American Journal of International Law 680-703.
10 These phenomena are familiar from widely-read literary works: see for example Louis de Bernieres Birds Without Wings
London, Secker and Warburg 2004; for a similar situation within the old British Empire, see Salman Rushdie Midnight’s
Children (London, Jonathan Cape, 1981).
11 Patrick Weil Qu’est-ce qu’un français ? Histoire de la nationalité française depuis la Révolution, Paris, Gallimard, ‘Folio
Histoire’, 2005, 167-202.
12 Universal Declaration of Human Rights art 15: (1) Everyone has the right to a nationality. (2) No one shall be
arbitrarily deprived of his nationality nor denied the right to change his nationality.

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disloyalty and disaffection, as befitted a system founded on the ancient idea of allegiance to the
monarch.13

The legislative road to modern British deprivation rules

Modern citizenship is about the relationship between an individual and the state.14 British
nationality law was first codified in the British Nationality and Status of Aliens Act 1914, at the
outbreak of the First World War.15 The Act contained provisions for naturalisation of aliens
and revocation of a certificate of naturalisation where it appeared to the Secretary of State that
it had been obtained by false representation or fraud.16 A subsequent Act in 1918, after four
years of war, broadened the revocation provisions, adding to the qualifications for revocation
those of ‘concealment of material circumstances’ and where the person had ‘shown himself by
act or speech to be disaffected or disloyal to His Majesty’, as well as further power to revoke
naturalisation where a person had traded or communicated with, or assisted, the enemy in time
of war, or had been sentenced to a term of imprisonment of twelve months or more, or a fine
of a hundred pounds or more, within five years of the grant of naturalisation; in these further
instances, the Secretary of State also had to be satisfied that the continuance of the certificate
of naturalisation was not conducive to the public good. In certain circumstances, there might
be inquiry before an order was made.17 There was a further new power to revoke a certificate
of naturalisation where the naturalised person’s previous country of nationality was at war with
Britain, and that no subject of such a country should be naturalised within ten years of the end
of the war.18
The British Nationality Act 1948 restructured British subjecthood, bringing in the
concept of ‘citizenship’ of the Commonwealth and United Kingdom (‘British citizenship’ as
such did not arrive until much later), for the first time implying a distinction between the two
but not, at that time, restricting the rights of the non-UK British to come to the mainland. In
the 1960s, in a climate of increasingly vocal public racism against workers from the Caribbean
and East Africa in particular, that right was however restricted by the withdrawal of the right
of British nationals from outside the British Isles19 to enter the British mainland. This redefined
them as immigrants in Acts of that name.20 It amounted to depriving ‘nationals’ of the most

13 The common law nationality system, being based on allegiance to the monarch, might reasonably be expected to
deprecate dual nationality, which would indicate divided loyalty in any prospective war. However, perhaps with the
growth of friendly independent dominions and colonies, any such tendency has relaxed. Moreover, multiple nationality
has resonances for the liberal mantra of freedom of choice and individualism; see Thomas Frank ‘Citizenship: an
Instance of Identity as a Personal Act of Self-Determination’; chapter 4 of The Empowered Self: Law and Society in the Age
of Individualism (Oxford, Oxford University Press, 1999).
14 Nottebohm v Guatemala 1955 ICJ 4.
15 Under the jus soli (law of the land or soil) the common law recognised as British those born in the monarch’s realm;
Calvin’s Case 77 ER 377. For an early discussion see ‘The English Law of Nationality and Naturalisation’ Edward Louis
de Hart (1990) Vol 2, No 1 Journal of the Society of Comparative Legislation 11-26.
16 BNSAA 1914, s 2 (1) and s 7 (1).
17 Section 1 BNSAA 1918, substituting new s 7 (1) BNSAA 1914.
18 Section 3 BNAA 1918.
19 Special rules obtained, and still do, for Irish citizens, and the Irish-UK border is in practice largely (but not entirely)
open, under the Common Travel Area.
20 The Commonwealth Immigrants Acts of 1962 and 1968 at first made workers from specific countries obtain permits
in order to work in the UK, then restricted the ‘right of abode’ in the UK (and so the right to enter the mainland) to
British nationals who were born, or had a parent or grandparent who was born, in the UK. These people were then
called ‘patrials’. Though the terminology has changed, the effect of the provision remains in the Immigration Act 1971.
The most famous legal challenge to the broad political change was the case of East African Asians v UK (1973) [1981] 3
EHRR 76.

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essential incident of citizenship, the right to enter the country, though many retained the ‘right
of abode’ in the UK without actually being British nationals.21
Section 20 of the BNA 1948 extended the provision for revocation of British nationality
from naturalised persons to registered citizens. Under the 1948 Act, citizens of certain ‘old
Commonwealth’ countries had the right to register as citizens of the United Kingdom and
Colonies if they were either resident in the UK or in Crown service, as did women who had
married such citizens, so these were people with strong family links to the UK. 22 The Secretary
of State could deprive a person of citizenship if it was obtained by fraud, false representation or
concealment of material fact, or if the person had shown themselves to be disloyal or disaffected
towards His Majesty or unlawfully traded or communicated with, or assisted, an enemy during
war. These provisions applied, however, only to naturalised citizens, and thus covered neither
natural-born citizens nor citizens by registration.
Disloyalty and disaffection are in any event strong terms, closer in character to treason
than to dissent. Historically disloyalty amounting to treason could bring expulsion of the most
final kind, most famously reflected in the case of William Joyce, the Nazi broadcaster ‘Lord
Haw Haw’, who was hanged for treason to Britain despite being regarded as an ‘alien’. 23
Since the lesser offences of disloyalty and disaffection would imply in practice not only an
abandonment of the UK but a transfer of allegiance to another country, disloyal and disaffected
ex-citizens might however be expected to have somewhere else to go if deprived of British
nationality; their country of previous nationality might also be felt to have some responsibility
for them. In any event, the small number of deprivations between 1949 and 1973 did not
excite principled concern as to where the deprived would go. By the time the Convention on
the Reduction of Statelessness 1961 came into force in 1975, including the provision at art 8
prohibiting the deprivation of nationality when the individual would be left stateless save for
specified circumstances, deprivation had been rare for decades and at that point appeared to
have ceased.24
Whilst the provisions as to the forms and acquisition of British nationality were considerably
altered by the British Nationality Act 1981, the provisions as to deprivation were relatively
unchanged. Section 40 of the 1981 Act contained the provisions for deprivation of citizenship;
it still does, though it has since been substantially amended. The original section provided for
deprivation, in sub-s (1), of a person who had obtained registration or naturalisation through
fraud, false representation or the concealment of any material fact, and, in sub-s (3), of any
person disloyal or disaffected, or who had engaged with or assisted the enemy in wartime,
or of a registered or naturalised person who was sentenced to twelve months’ imprisonment
anywhere in the world within five years of registration or naturalisation. All of s 40 was subject
to the overriding provisions in sub-s (5), as in the BNA 1948, that no deprivation should be
made unless the Secretary of State was satisfied that the person’s remaining British was not

21 See s 1 Immigration Act 1971.

22 Section 6 BNA 1948 refers to citizens of Eire, Canada, Australia, New Zealand, the Union of South Africa,
Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon. There are also generally requirements as to age and
capacity, especially for adult men, as well as provisions for the registration of minor children.
23 Capital punishment for treason was abolished by s 36 Crime and Disorder Act 1998. Joyce, a United States citizen, had
travelled to Germany on a British passport obtained on the basis of his being a British subject (his father having been
Irish), though Joyce himself was an alien. He was however liable for execution for treason because obtaining the British
passport meant he owed an allegiance which he had betrayed (Joyce v DPP [1946] AC 347).
24 Between 1915 and 1948 (during which the British Empire was yet to shed its territories, and almost all those living
within it were British subjects, and there were two world wars), 287 British subjects were deprived of status. Between
1949 and 1973, ten Citizens of the United Kingdom and Colonies were deprived. After 1973, there were no
deprivations until after the 2002 Act. (Hansard, HL Deb, 8 July 2002, col 66 W).

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conducive to the public good. Deprivation could leave a person stateless, unless it was for reason
of a prison sentence within five years of registration or naturalisation. By sub-s (6), the person
to be deprived would be given notice in writing of the proposed deprivation, its grounds and
the right to an inquiry. Committees of inquiry were specified in sub-s (7) to consist of a ‘person
possessing judicial experience’ and anyone else the Secretary of State might think proper, and
there were enabling provisions for the making of rules by the negative procedure. When the
1981 Act came into force, therefore, despite its considerable structural impact on the attribution
of British citizenship rights by the removal of the pure jus soli principle and the requirement,
for citizenship by birth, of a parent who was a British citizen or settled person, little changed as
regards the rules of deprivation.

The modern law of deprivation of British citizenship

The law of deprivation remained stable for a further two decades, but the world changed
around it. A considerable break with the past was made by s 4 of the Nationality, Immigration
and Asylum Act 2002, which elicited public concern because, for the first time, it allowed
the Secretary of State to deprive a UK-born person of their British citizenship.25 The test for
deprivation of a registered or naturalised person in the case of fraud, false representation or
concealment of a material fact remained the same, but the new sub-s (2) of s 40 BNA 1981
provided that the test for deprivation was that the Secretary of State was satisfied that the person
had done anything ‘seriously prejudicial to the vital interests of the United Kingdom or a British
overseas territory’, though in this case the deprivation was limited by a new sub-s (5) providing
that deprivation on this ground could not leave a person stateless. In either case, the deprivation
was to be made by order, and the person to be deprived was to be informed of their rights of
appeal.26 This wording reflected the provisions of the European Convention on Nationality of
1997, which the UK had not signed, but which at art 7 (1) would limit states parties’ powers
of deprivation to such circumstances. The phrase about ‘seriously prejudicial’ acts is also the
same phrase that features in art 8 of the Convention on the Reduction of Statelessness where
it specifies who may be left stateless by deprivation, but in the NIA Act 2002 it was used
to opposite effect. In the 2002 Act, ‘seriously prejudicial acts’ became a positive reason for
ordinary deprivation rather than – as para 2 of art 8 of the Convention provides - a factor
allowing a particularly active disaffected person to be deprived and left stateless.
The 2002 Act was passed amidst a furore about Abu Hamza, a Muslim preacher who had
been advocating hatred and violence at the Finsbury Park mosque in North London. There
were calls in the press to have him expelled from Britain and returned to his native Egypt; if the
change was aimed at him in particular, it did not succeed, since it provided that a deprivation
that left a person stateless was permitted only where British citizenship had been obtained by

25 This Act was also notable for having come into force before it was published, though this was found to be a valid
procedure: R (L and Another) v Secretary of State for the Home Department; Lord Chancellor’s Department, interested party
TLR 30 June 2003.
26 These had changed from the era of the original 1981 Act. Changes aimed particularly at asylum appeals and shortening
the time before removals had led to a new appeals system, and following adverse comment by the European Court
of Human Rights in the case of Chahal v UK [1996] ECHR 54, the Special Immigration Appeals Commission Act
1997 had brought in an alternative ‘closed’ tribunal for the hearing of immigration deportation cases involving national
security. In appeals lying to the SIAC, the Secretary of State can certify that some or all of the evidence must be
considered only in secret, in the interests of national security or the relationship between the United Kingdom and
another country, or otherwise in the public interest. ‘Special advocates’ who are permitted to see the closed evidence
represent the individuals, but may not discuss that evidence with their clients.

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something akin to fraud.27 Abu Hamza had obtained his citizenship by residence in Britain as
the spouse of a British citizen, and he had thereby lost his previous, Egyptian, citizenship. On
4 April 2003, he was given notice that he would be deprived of his citizenship; the Secretary
of State cited national security in declining to give reasons, so Abu Hamza’s appeal against the
deprivation lay to the Special Immigration Appeals Tribunal (SIAC). By s 40 (6) (A), the filing
of the appeal suspended the effect of the order. As the SIAC commented, the appeal was then
overtaken by events.28
In particular, subsequent legislative changes made it much easier for the Secretary of
State to get rid of a person by depriving them of citizenship. The filing of an appeal against
deprivation was made non-suspensive in 2004. A person deprived of citizenship could thus be
physically deported pending the appeal, achieving the immediate objective of expulsion from
the UK.29 If an appeal then succeeded, the original decision would be treated as of no effect.30
However, an in-country appeal remained on human rights grounds, including against the
Secretary of State’s certificate that those rights were not breached, pending which the person
could not be expelled. These procedural changes were not immediately fruitful of discussion,
perhaps because this Act gave rise to more media concern about its provisions removing welfare
benefits from failed asylum-seeking families with children or immigration officers’ powers of
arrest.31 There were also radical substantive changes, but these too seemed to excite very little
public discussion or disquiet. At a late stage of the Bill process, amendments were introduced to
what became the Immigration Asylum and Nationality Act 2006. The proposals were that the
Secretary of State should have the power to deprive a person of citizenship if s/he was satisfied
that it would be ‘conducive to the public good’.
The background to the substantive changes was explicitly the context of combating
Islamicist terrorism,32 especially in the wake of the bombing of civilians in London on
7 July 2005 in concerted suicide attacks by four Islamicist terrorists. The national shock was
intensified shortly afterwards when a video recording made by one of the terrorists recording
his reasons for the attack was made public; he had a Yorkshire accent. On 15 September,
the Government announced that it would make amendments to the current Immigration,
Asylum and Nationality Bill to further the counter-terrorism project, and on 12 October
the draft clauses were published. The proposals also included the requirement that appeals
against deportations on national security grounds be brought out-of-country, save where the
deportation was challenged on human rights grounds, in order to secure so far as possible the
immediate removal of dangerous people. The review that the courts could undertake before

27 Section 4 (3) Nationality, Immigration and Asylum Act 2002.

28 In late 2010, the SIAC confirmed that the issue was of de jure statelessness – whether a person is without a formal
nationality – rather than de facto statelessness – whether any nationality they have is unhelpful or unrelated to their life.
Hamza v Secretary of State for the Home Department [2010] UKSIAC 23/2005. After a considerable legal saga, Abu Hamza
was extradited to the United States in October 2012.
29 Schedule 4, para 2 Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Appeals under the new s 40A(1)
of the BNA 1981 gave a right of appeal to the Immigration Tribunal against the decision to make a deprivation order,
though not against the making of the order itself. By s 40A (6), a s 40 order could not be made until any possible such
appeal had been finally determined. The issue of non-suspensive appeals was deprecated by Alvaro Gil-Robles where
it applied to asylum cases, as it risked refoulement, contrary to art 33 of the Refugee Convention (Council of Europe
Report on the United Kingdom; Comm DH(2005) 6-8th June 2005).
30 Schedule 2, para 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 repealing s 40A(6) and
brought in a new s 40A (3) and referring to ss 82, 83, 83A and 87 NIAA 2002.
31 Sections 9, 14, 19ff A (TC etc) A 2004.
32 The many years of Irish terrorism in mainland Britain ended with the attacks of September 11 2001 (they were reputed
to be largely funded from the United States, which until then had little experience of domestic terrorist attacks).

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removal would not be of the merits of the order for deportation, but only on whether such a
deportation would breach the appellant’s human rights.
Since the proposals had not been included in the original Bill, there was neither a statement
of compatibility with the European Convention on Human Rights nor an explanatory note.
These issues were therefore considered by the parliamentary Joint Committee on Human
Rights. The first concern of the Joint Committee was that the powers proposed could be
used against British citizens by birth, not just naturalised citizens, though this had been
introduced earlier, by s 4 (1) NIA 2002.33 Its second concern was the lowering of the threshold
for deprivation from ‘serious prejudice to the vital interests of the UK’ to the Secretary
of State’s considering that the deprivation was ‘conducive to the public good’ - the same
test, as it pointed out, that had long applied to the deportation of non-nationals. Whether
deportation was conducive to the public good would involve judging the behaviour of the
person concerned against a list of ‘unacceptable behaviours’, including ‘justifying terrorism’.34
Public speculation suggested that would include the banning of bonfire parties; Lord Parekh
revealed that he had brought suspicion on himself for a philosophical discussion of pointless
arguments that involved an imaginary discussion between the Mahatma Gandhi and Osama bin
Laden.35 The ‘unacceptable behaviours’ list subsequently disappeared. The Joint Committee,
having remarked on the lack of clarity in the appeals provisions, reflected that human rights
instruments confer no direct right to a nationality, but that deprivation of citizenship and
removal or exclusion may lead to breaches of rights under various Articles of the ECHR.36
It also referred to art 12(4) of the ICCPR (not to be arbitrarily deprived of the right to enter
one’s own country), implying that the deprivation might be considered arbitrary, and went
on to discuss a ‘scope for arbitrariness’ particularly in relation to the provision about ‘justifying
terrorism’ as an ‘unacceptable behaviour’.37 Moreover, as the provisions could not be exercised
so as to leave someone stateless, they would operate only against dual nationals, and would thus
discriminate amongst British citizens.38 Its conclusion was that the proposals for deprivation of
citizenship contained ‘insufficient guarantees against arbitrariness’.
As the proposed amendments to the Bill were considered, a more direct illustration of
the gap between the Secretary of State’s contemporary desires and existing legal powers came
to light. The US had taken people suspected of terrorism to its camp at Guantanamo Bay
on the island of Cuba and imprisoned them there without a right to trial. Amidst assertions
about the poor conditions at the camp, and the impossibility of the inmates seeking review
of their detention through any legal process, unease grew amongst the public and lawyers
alike.39 Following diplomatic discussions, the British citizens at Guantanamo were returned
to the UK. On realising that he could potentially take advantage of that arrangement, on 16
September 2005, an Australian inmate, David Hicks, sought to register as British on the basis of

33 Joint Commission on Human Rights Counter-Terrorism Policy and Human Rights (HL 75-I, HC 561.I) para 155.
34 Ibid, para 156-158.
35 Hansard HL Deb (2005–06), cols 1432–3. ‘Bonfire parties’ properly celebrate the execution of Guy Fawkes, a member
of a Catholic conspiracy that tried to blow up the Houses of Parliament in an earlier religiously-inspired phase of
terrorism; there are however sometimes no doubt cynical suggestions that what is being 'glorified' (the contemporary
term) is in fact the heroic attempt of Mr Fawkes.
36 Supra fn 33, para 159.
37 Baroness Stern pointed out in debate that the breadth of the definition of ‘terrorism’ could include supporting
democracy abroad under an oppressive regime (Hansard HL Deb, 6 December 2005, col 566).
38 Supra fn 33, para 161.
39 Johan Steyn ‘Guantanamo Bay: the legal black hole’ (2004) ICLQ 1 - 15.

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his mother’s British citizenship by virtue of her birth in the UK.40 On 12 October, the Home
Secretary asserted that he could refuse to register Mr Hicks, or that if he had to register him
he could immediately deprive him of citizenship on the basis of having done things seriously
prejudicial to the vital interests of the UK.41
On 13 December 2005, Collins J in the High Court quashed the Home Secretary’s
decision, saying the Secretary of State had no power either to refuse to register Mr Hicks
or, having registered him, to deprive him of citizenship. The Court of Appeal considered
carefully the provisions of s 40 BNA 1981, which included a specification that the Secretary of
State could rely on things that occurred before commencement (that is, before the amended
provision came into force) only if he could have relied on them in making an order before
commencement. In the circumstances of Mr Hicks’ case, that meant that he could not rely
on the ‘anything seriously prejudicial’ provision, as this was brought in by the 2002 Act (that
is, simultaneously with the amended provision which allowed consideration only of things
that had previously applied). The previous provisions were those relating to acts of disloyalty
and disaffection, which the Court of Appeal, after considerable discussion especially of the
amendments made to the BNSAA 1914 by the BNSAA 1918, did not apply to Mr Hicks.42 It
was agreed that his actions did not amount to disloyalty; after considering case law as well as
dictionary definitions and literary uses of the word, the court also found that they could not
be properly described by the broader term of ‘disaffection’.43 It held that the person must have
a relationship with the object of the disaffection, and that the term was not apt to cover an
outsider.44 The Secretary of State had relied considerably on the execution of William Joyce
for treason when he was an American citizen,45 but the court pointed out that, already whilst
broadcasting for the enemy, he had held a British passport: ‘Joyce does not create allegiance
where none exists; it demonstrates circumstances in which allegiance may exist without
citizenship’.46 The Secretary of State’s argument that there was potential disaffection which in
effect crystallised at the moment of registration and sufficed to warrant deprivation at that point
was raised only at the hearing in reply to the court’s finding that disaffection in Afghanistan in
earlier years did not suffice; the court, whilst declining to entertain it in those circumstances,
also indicated the reasons for which the argument would have been rejected.47
The proposals as to deprivation were passed into legislation by ss 56 and 57 of the
Immigration, Asylum and Nationality Act 2006, inserting into s 40 BNA 1981 the current
power that the ‘Secretary of State may by order deprive a person of a citizenship status if the
Secretary of State is satisfied that deprivation is conducive to the public good’. As Hina Majid has

40 Mr Hicks had not been a British citizenship by descent at birth because his father was himself a British citizen by descent
(citizenship by descent, for the child of British citizens who is born outside the UK, passes only one generation) and,
at that time, citizenship was not transmitted by descent through the female line. The gender discrimination had almost
been rectified by s 4 (1) NIAA 2002, inserting new s 4C into the BNA 1981, not making such children retrospectively
citizens but entitling them to register.
41 Mr Hicks was suspected of having attended a jihadist training camp in Afghanistan, something which he later admitted
and served a sentence of imprisonment for in Australia.
42 Secretary of State for the Home Department v David Hicks [2006] EWCA Civ 400.
43 The case law considered in Hicks included that of Burgess v Rawnsley [1949] 79 CLR 101, an Australian criminal case
on the uttering of seditious words contrary to the Crimes Act 1914-1946, in which the meaning of ‘disaffection’ caused
division in the court.
44 Hicks, para 32.
45 See above fn 23.
46 Hicks, paras 34–37.
47 Hicks, para 41. The court went on to discuss the acquisition of citizenship by registration, including the taking of
the oath of allegiance; this discussion does appear to indicate that registration confers, rather than merely confirms,
citizenship.

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pointed out, this was previously the test for deportation of non-nationals.48 However, the phrase
also had a place in the deprivation provisions where, like the phrase about ‘seriously prejudicial’
acts, it had previously been part of the limitations on deprivation. BNA 1981 s 40(5), before the
amendments of NIA 2002, provided that the Secretary of State could deprive a person who had
satisfied the earlier conditions of citizenship only if he was satisfied that it was ‘not conducive
to the public good that that person should continue to be a British citizen’. Like the ‘seriously
prejudicial’ phrase, it is also then translated from a limitation on deprivation to the positive
status of a reason for deprivation itself. Moreover, building on the introduction of the principle
in the 2002 Act, this again applied to all citizens, even those who were born in the UK and
acquired citizenship at birth. The translation was thus complete, from deprivation only of those
who were previously foreign nationals and had become British, provided it was not conducive
to the public good for them to remain British; via deprivation of those (even the natural-born)
committing ‘seriously prejudicial’ acts, provided they were not left stateless; to the power to
deprive even the natural-born of citizenship if it was considered conducive to the public good.
The limitation that someone should not be left stateless applies to that provision, but not to
the provision for deprivation if a person has obtained citizenship by fraud, misrepresentation or
concealment of a material fact.
The new deprivation provisions under the IANA 2006 came into force on 16 June 2006.
Critical commentary on this aspect of the Act was notable by its absence. An exception was
the barrister Nick Blake, as he then was (now Sir Nicholas Blake, a High Court judge), who
questioned both the Act and the silence surrounding it.49 The most interesting aspect of the
silence – which continues – is perhaps the persistent and widespread lack of appreciation of
the breadth of the provisions. Anecdotally – since no-one has conducted a formal study – the
failure of knowledge is apparent amongst both the general public and even elements of the
academic community. There is a broad lack of understanding of the near-arbitrary nature of
the provisions and their administrative simplicity, and especially a lack of appreciation that the
provisions apply to anyone, including the British-born.

Case-study: Hillel al-Jedda

The case of Hillel Abdul-Razzaq Ali al-Jedda exemplifies some workings and problems of the
new deprivation provisions. Formerly a noted basketball player, Mr al-Jedda had left Iraq under
the Ba’athist regime of Saddam Hussein al-Tikriti. He eventually went to Pakistan, where he
married and attended a jihadist training camp before successfully seeking asylum in the UK in
1994. He and his family were given four years’ leave to remain and, in 1998, indefinite leave
to remain. In 2000, they became British citizens and went abroad. Mr al-Jedda was detained
in Syria and his family returned to the UK; there was subsequently a divorce and Mr al-Jedda,
after his release, married and had children with two other women, one of whom went to
live in the UK with their son. After being deported from Jordan back to the UK in 2002,
he continued to travel extensively in Muslim countries and in 2004 he was variously arrested
and detained and eventually taken by UK and US forces to Basra in Iraq. He contested his

48 Hina Majid ‘Protecting the Right to Have Rights’ (2008) Vol 22, No 1, IANL 27-44.
49 Nicholas Blake ‘Why is there no song and dance about this Act?’ The Times, 25 April 2006. He particularly focused
on the special status of citizenship and its loss: ‘Citizenship has long been a guarantee that a person is not subject to the
battery of intrusive and repressive measures available under the immigration legislation, notably deportation. However,
the legislative barrage of the last five years, linking immigration, asylum and terrorism, has broadened the basis for
deprivation of citizenship … the language used for deprivation … is telling .This is the term used in the immigration
acts to justify the deportation of non-citizens.’

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detention and was released just after an order was made depriving him of his citizenship on
14 December 2007.
Mr al-Jedda contested the deprivation on the grounds that it was outside the Secretary
of State’s powers under the Act, and on the grounds of arts 8 and 3 of the ECHR.50 This
case is notable for the strong line taken by the SIAC on the assertion that s 56 IAA / the
new s 40 BNA should be read very literally, to mean that it is sufficient for the Secretary of
State to consider that deprivation is conducive to the public good. This would allow for no
appeal or review whatsoever, since there would be no grounds of challenge to the Secretary
of State’s actions, however capricious – a reading that the SIAC found to be ‘[i]nstinctively …
profoundly unattractive’.51 The SIAC Act 1997 did not however contain a provision equivalent
to s 86 of the NIAA 2002, which requires the tribunal to allow an appeal against a decision
insofar as it thinks that the decision was not in accordance with the law, or that a discretion
should have been exercised differently.
The view of the Secretary of State was that this meant that the SIAC could not review the
exercise of his discretion. The SIAC however took the view that this very limited specification
broadened their powers, by not defining or explicitly limiting them. It thus considered it
should review the case on its merits, not on procedural issues. The SIAC pointed out that it
had in effect won a previous battle about who could assess national security risks in a particular
case. It also asserted that ‘fairness’ required that it could assess any facts asserted by the Secretary
of State on the balance of probabilities. 52
In the event, though, the SIAC was satisfied that the Secretary of State’s case for
depriving Mr al-Jedda of citizenship was made out. The Art 8 claim failed largely because
Mr al-Jedda had no family life in the UK to speak of, as he had been abroad so much, as
well as because of the likelihood of a control order itself disruptive to family life if he were
to return. It was moreover held that, even if art 8 were engaged, deprivation would satisfy
para (2) of the article, as the Secretary of State might reasonably need to prevent Mr al-Jedda
from entering the UK in the interests of public order.53 The art 3 claim, however, worked
differently. Not only are art 3 rights absolute, but also Britain was responsible for the risk
to Mr al-Jedda: ‘the deprivation decision was one of a series of decisions taken by British
authorities within a short space of time which had the intended consequence that he would
be released in the territory of Iraq without the rights and protections available to a British
citizen’.54 However, Mr al-Jedda asserted that the particular risk to him arose from his public
profile, including his past as a national basketball player; this the SIAC found to be ‘fanciful’.55
The conclusion of the SIAC was that Mr al-Jedda had not established a breach of art 3;
he might have established a procedural irregularity (that is, a breach of art 6), but that this
was insufficient to allow the appeal against deprivation.56 However, as will be seen later, Mr
al-Jedda had not exhausted his arguments.

50 That is, that it breached his rights to respect for his private and family life and that it breached his right not to be
subjected to torture or inhuman and degrading treatment respectively. The former right is subject to the proviso that
some restrictions may be necessary on grounds of public order; the latter is absolute. Hilal Abdul-Razzaq Ali al Jedda v
SSHD SC/66/2008 SIAC 7 April 2009.
51 Ibid, para 4.
52 Ibid, paras 8–91. SSHD v Rehman [2001] UKHL 47.
53 Ibid, paras 22–30.
54 Ibid, para 31.
55 Ibid, para 33.
56 Ibid, para 34.

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Testing the boundaries of deprivation

Procedurally, deprivation ‘by order’ as envisaged by s 40 BNA 1981 is relatively informal.
There is no hearing of the issue. A person is issued with a notice of the intention to deprive
and the deprivation follows. However, following the assertion of court powers in Mr al-Jedda’s
case, a challenge to a decision to deprive is relatively generously treated in some respects. In
Arusha and Demuzi,57 it was confirmed that the First-Tier Tribunal, in considering deprivation
for fraud, has a wide-ranging power to consider, by way of appeal not review, what the
decision in the case should have been and, if the evidence does establish that the citizenship
was obtained by fraud, whether discretion as to deprivation should be exercised. Any evidence
can be considered, including new evidence, in considering whether the Secretary of State’s
burden of showing that the appellant’s conduct came within the scope of s 40 BNA 1981 really
was discharged. Any human rights grounds raised by the appellant should be focused on the
alleged breach caused by the deprivation decision, rather than by his proposed removal. To
establish that delay had led to an error of law would require that the decision was unsafe and
was therefore unlawful; a nexus must be established between the delay and the alleged unsafety
of the decision.58
Procedural issues also remain in relation to deportation or exclusion pending appeal.
However, where the appellant is abroad, he has usually left the UK of his own volition. In
G1 v SSHD,59 the appellant’s departure was prima facie contrary to law; he had been charged
with public order offences in relation to his participation in anti-Israeli protests relating to
military action in Gaza, and left the UK for his country of origin, Sudan, in breach of his bail
conditions. On 14 June 2010, while he was abroad, the Secretary of State deprived him of his
British citizenship on the grounds that this would be conducive to the public good because
he was involved with terrorism and had links to Islamic extremists. Deprivation of citizenship
while a person is abroad strongly alters the balance of convenience between the Secretary of
State and the person being deprived. A person in the UK who is deprived of British citizenship
may be apparently deportable to another country of which they are a national, but if they are
unwilling to go, and especially if they do not have (or will not produce) a current passport and
are unwilling to apply for a new one, making them leave will present practical difficulties. They
may take the opportunity to garner local or family support, which could be inconvenient or
embarrassing to government. If however they are abroad, it will be relatively easy to prevent
their return into the UK. Moreover the likelihood of any appeal against the deprivation decision
may be less if the deprived person is abroad. Contacting and instructing lawyers at a distance
may feel, or indeed be, more difficult, and the person may feel that the whole deprivation
operation is a fait accompli against which anyone is powerless.
G1 did however bring a challenge to the decision to exclude him from the UK, focused
on the procedural provisions and their implications. In particular he took issue with the effect
on the ability to mount an appeal against deprivation of citizenship given that such appeals
were now non-suspensive.60 He asserted that depriving him of citizenship whilst he was abroad
and so refusing him re-entry to the UK amounted to a failure to allow an effective in-country
right of appeal, which in turn amounted to a breach of rights to an effective remedy and non-
discrimination under EU law. He asserted that, since in the equivalent situation of revocation

57 SSHD v Arusha and Demuzi [2012] UKUT 80.

58 Secretary of State v RK (Algeria) [2007] EWCA Civ 868.
59 G1 v SSHD [2012] EWCA Civ 867. Note however cl 35 Crime and Courts Bill, HL 115.
60 See above fn 29.

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of leave to remain, that leave was extended to cover the period of an appeal, there should be
a cognate provision available in the case of deprivation of citizenship. The Court of Appeal,
agreeing with the Administrative Court in dismissing his application, held that the legislation
had not changed the position that deprivation of citizenship was an exercise of the Crown’s
prerogative powers. Section 40A(6), allowing for suspensive effect of deprivation orders, had
been repealed without replacement; no replacement could be implied. G1 also asserted that the
common law required that a person should be able to be present in person at his own appeal:
the Court disagreed, holding that it did not.
So far as EU law went, the Court further held that it did not provide G1 with any route
to a remedy, since it left the individual states to make their own law on the attribution and
deprivation of nationality. It considered the Luxembourg case of Rottmann v Bayern, in which
Mr Rottmann had renounced Austrian citizenship in favour of a German citizenship of which
he had subsequently been validly deprived; the issue for the Luxembourg court focused on his
thus having lost his European citizenship.61 Relying on Micheletti,62 Belgian State v Mesbah,63 and
Chen v SSHD,64 the court in Rottmann held that European citizenship depended on citizenship
of a constituent state of the EU, that the citizenship laws of a state were entirely within the
competence of that state, and that a person who lost their European citizenship by virtue of
losing citizenship of a constituent state could not rely on European Union law to assist them.65
There were in any event in Rottmann cross-border elements which did not feature in G1, a
purely domestic case, and there was nothing in the European Communities Act 1972 or any
other statute that suggested that the Court of Justice had any jurisdiction to adjudicate on the
conditions on which a state conferred, withheld or revoked citizenship.66 Those conditions,
said Laws LJ, ‘touch the constitution; for they identify the constitution’s participants’. He
remarked that no authorities had been cited suggesting that Parliament had authorised the
Court of Justice to modify the laws of the United Kingdom.67 Moreover he did not find that
there was sufficient analogy with a person whose leave to remain has been cancelled to found
any claim of discrimination.68 He also found that there was in any case no engagement of an EU
right in relation to which discrimination was alleged.69

The defence of ensuing statelessness

The greatest unresolved issue in this area is however the relationship between the Secretary of
State’s right to deprive a person of British citizenship and the possibility of ensuing statelessness.
The issue has several aspects, of which one is entirely practical. If the policy of deprivation
of citizenship is supposed to rid Britain of undesirable or dangerous people, then depriving a
person, however undesirable, of British citizenship so as to leave them stateless will not achieve
that goal, since there will be nowhere to send them. They will merely be deprived of the

61 C-135/08 [2010] ECR I-1449.

62 C-369/90 [1992] ECR I-4239, para 10.
63 [1999] ECR I-7955 para 29.
64 C-200/02, para 37.
65 Rottmann supra fn 61, para 48; subject to the condition of proportionality (para 59).
66 G1 above fn 60, paras 41–43.
67 Paragraph 43.
68 The lesser right of the deprived citizen, in comparison with the alien whose leave to remain has been cancelled, were
described in by Rix LJ as ‘surprising and counter-intuitive’, and he even thought they might not have been intended.
Nevertheless, as he said, ‘it is plainly there’. Moreover, the appellant had left the country of his own volition and so
‘has no-one to blame but himself ’. (G1 supra fn 59 CA para 59).
69 Paragraph 50.

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means to live independently – the rights to work or claim welfare benefits or non-urgent NHS
medical treatment – and they will be dependent on family and friends or on charity, or they
will be destitute. If they are dangerous, they will not be less so, and they may be seen as political
martyrs. Detention and control orders bring their own problems.
However, though the Home Office may either not be bothered by such considerations,
or may be unfazed by the idea of issuing directions to remove a person to a country of which
he is not a citizen,70 in many deprivation cases, the appellant (it is always an appeal, since no
hearing is required for the initial deprivation) resists the notice of deprivation on the basis
that deprivation of British citizenship will leave him stateless, and sometimes they succeed.71
These appeals however require decisions on the scope of foreign citizenship laws, frequently
in relation to legal systems which are even more complex in this respect than the British
system.72 In ‘Y1’ v SSHD,73 the SIAC discussed the Afghan citizenship of a man born in Kabul
to Afghan parents, who became a refugee in the UK and then a naturalised British citizen. On
a trip to Afghanistan he was detained by British soldiers, the Secretary of State ordering his
deprivation of citizenship on the day of his release, on the basis that he was considered to have
terrorist links and involvement. The preliminary issue for the SIAC was whether or not Y1 was
an Afghan citizen; notwithstanding its assertion that ‘there is something unrealistic about the
exercise’, it found, after much discussion of the provisions which prohibited dual nationality,
that nevertheless he was. His appeal on the basis of statelessness therefore failed.

The return of al-Jedda

Mr al-Jedda, who had earlier failed in his appeal against deprivation on the basis that it
breached his human rights, tried again in 2010 on the basis that deprivation left him stateless.
The SIAC, after much consideration, decided that he had not lost his Iraqi nationality when
he became a British citizen.74 The Court of Appeal, however, sent the case back for rehearing
on the basis of the practical difficulties in preparing the case for the SIAC.75 The matter came
before the Court of Appeal again in 2012, when it reviewed the SIAC’s assessment of Iraqi
nationality law. Indeed it reviewed all the available views on that law, in some detail, coming
to the conclusion that the SIAC’s analysis had involved a material error of law and that the
Court should go on to re-assess the matter itself.76 In particular, it considered the question
of whether it was sufficient for the Secretary of State to establish that a person deprived of
British citizenship would be able to acquire another citizenship on request or application: it
held that it would not.77 Mr al-Jedda therefore succeeded in his appeal against deprivation
of citizenship, on the grounds that he had lost his Iraqi nationality and would therefore be
rendered stateless by the deprivation.

70 See eg Revenko v SSHD [2000] EWCA Civ 500, MA v SSHD [2005] UKAIT 00161; KA (statelessness: meaning and
relevance) [2008] UKAIT 00042, MM and FH (Stateless Palestinians, KK, IH, HE reaffirmed) Lebanon CG [2008] UKAIT
00014.
71 See above fn 27.
72 Statelessness has also been a fruitful source of case law in relation to refugee claims in recent years, for example on the
issue of whether statelessness in one’s country of birth or habitual residence amounts to persecution. On refugee claims
and the denial of the right of return to nationals, see ST v SSHD [2011] UKUT 00252(IAC).
73 Y1 v SSHD [2012] UKSIAC 112/2011, para 7.
74 SC/66/2008, 20 November 2010.
75 Hilal Abdul Razzaq Ali al-Jedda v SSHD [2010] EWCA Civ 212.
76 [2012] EWCA Civ 358, para 116.
77 Ibid, para 121.

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The judgement of Stanley Burton LJ however provides a sting in the tail: he considers
the scope of art 8 of the Convention on the Reduction of Statelessness, which came into
force in 1975 and to which the UK is a contracting state party. The UK expressly declared
that, in accordance with para 8(3), it retained the power to deprive a person of nationality
and render him stateless in the circumstances specified as permissible under the Convention.
Those circumstances included where the person had behaved ‘inconsistently with his duty of
loyalty to the Contracting State’ or ‘conducted himself in a manner seriously prejudicial to
the vital interests of the State’ or ‘given definite evidence of his determination to repudiate
his allegiance to the Contracting State’. Nevertheless, as Stanley Burton LJ pointed out, the
provisions in the subsequent British legislation did not take advantage of the latitude that the
Convention provided for states to make people stateless if they had behaved in a ‘seriously
prejudicial’ manner. This phrase was used in the provisions of the NIAA 2002 amending s 40
BNA 1981, but in such a way that, rather than curtailing the limitation of ensuing statelessness
and thus broadening the scope of deprivation, it became a reason for deprivation to which the
prohibition on ensuing statelessness was attached without being itself limited.78
Given the comments of Stanley Burton LJ, the rapid tightening of deprivation law,
the apparent public acceptance of deprivation by mere service of a notice, the valuing of
efficiency of practice over principles of natural justice (as when a person is deprived whilst
out of the country) and indeed the uncharacteristic speed with which the Home Office can
act in making deprivations,79 it is mysterious why this apparently unnecessary loophole was
not immediately plugged, especially given that a high proportion of deprivations are resisted
on the basis of ensuing statelessness. The answer may be that it is seen as unnecessary. It may
be perceived that those to be deprived generally have another nationality, and that they are
likely to travel so that service of notice of deprivation whilst they are abroad, combined with
the fact that appeals are now non-suspensive, will discourage any attempt to establish that the
deprived person has been rendered stateless. Alternatively, the answer may lie in the process
of any appeals on that basis. The ‘acts seriously prejudicial to the vital interests’ of the country
would have to be proved by the Government, very probably by the type of evidence it prefers
not to reveal, and thus any appeal would go forward to the SIAC on a more problematic
basis than mere contestations of foreign law. Perhaps it is considered that the Secretary of
State is bound to win in any event. Such a change might, however, be considered likely to
focus unwelcome further attention on the controversial proposal in the Justice and Security
Bill to extend the provisions for closed hearing of evidence to all civil hearings in the High
Court, Court of Appeal or Court of Session.80 Or this might be feared likely in turn to focus
attention on the laws of deprivation themselves, which appear to be little understood – or
perhaps believed - by the public.

78 Paragraph 127. However, in other cases the issue seems less closely examined. In G1 v SSHD [2011] EWHC 1875
(Admin), for example, G1 had a ‘nationality certificate’ which ‘absent other factors’ entitled him to obtain a Sudanese
passport (para 10 Admin) but he did not apparently have a Sudanese passport as such. Whilst a passport does not equate
to nationality, the gap was not explored. G1 was of course already resident in Sudan, so any practical problem related
to statelessness was no concern of the Secretary of State (R (Bradshaw) v Secretary of State for the Home Department [1994]
Imm App Rep 359, cited in Fedorovski, Re Application for Judicial Review [2007] NIQB 41).
79 KB v The Entry Clearance Officer, Tirana [2009] UKAIT 00043 was an appeal against refusal of admission by a wife on
the sponsorship of a husband who had been granted asylum and then naturalisation in Britain on the basis of being
Kosovan. During the hearing it was considered that his birth documents as produced by the wife showed him rather
to be Albanian. The sponsor husband was almost immediately served with notice of deprivation of citizenship on the
grounds of false representation.
80 Justice and Security Bill, HL Bill 27 cl 6.

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Deprivation of citizenship, fundamental laws and due process

Changes in the rules about deprivation of citizenship may reflect changing ideas about
citizenship itself. Deprivations may be carried out at the individual or community level; a
state may so take against an individual that, if it has the power (which it will grant to itself),
it may expel a member, or it may expel a group of people together as no longer fitting a
changed national definition of someone who belongs. Whilst the exclusion of individuals
and groups from citizenship is always hard on non-nationals who want to belong formally,
especially if they live in the country and regard themselves as belonging, the withdrawal of
existing citizenship is liable to be devastating, as an enforced external change of identity. The
American judge Warren J in Trop v Dulles described deprivation of citizenship as ‘the total
destruction of the individual’s status in organised society’.81 The destruction may be practical
– as the ‘right to have rights’ - or it may be psychological. Ostracism and expulsion have long
been known as severe punishments. Appreciation of the fundamental nature of deprivation laws
and the rapid changes to those laws in Britain have not necessarily gone hand in hand with
equivalent changes to the public idea of how Britain should deal with British people accused
of transgressions – especially British-born British people – or, perhaps, ideas of due process.
The widespread lack of understanding of the current provisions leaves room for some hope
that this is because they do not fit with assumptions about what British law would allow to
happen to its citizens.
The legislative changes do however reflect a broader contentiousness and shift in nationality
policies which has had more publicity and is more widely appreciated. So far as naturalisation
is concerned, some issues were resolved by the long and famous battle of Mohammed al-Fayed
for a grant of naturalisation, in the course of which, though he did not achieve the British
passport, he did establish a rule that, although s 44 (2) BNA 1981 said that he need not do so,
the Secretary of State would give the reasons for refusal.82 The refusal was on the grounds of
character; the giving of reasons made it easier to assess whether claims of bias were justified.
The question of secrecy in naturalisation applications has since moved on. As in deprivation
cases, national security issues have been raised by the Secretary of State as a reason for not giving
full information about the reasons for refusals.83 However, whilst ‘good character’ had long
been part of the considerations for naturalisation, which was always discretionary, s 47 of the
Borders, Citizenship and Immigration Act 2009 also inserted a requirement of good character
into most provisions for registration for those over ten years old; this, had it been available
earlier, would have dealt with the problem that Mr Hicks, above, posed for the Secretary of
State. Both becoming and remaining British are therefore more conditional on behaviour, or
its perception by the relevant authorities, rather than recognising part of someone’s identity.

81 (1958) 356 US 86 ‘There may be involved no physical mistreatment, no privative torture.  …  It is a form of
punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in
the development.  … his enjoyment of even the limited rights of  an alien might be subject to termination at any time
by reason of deportation.’ (pp 101-102).
  The theme is explored in various literary genres: see for example on the individual who suddenly finds he does not
belong as he thought Franz Kafka Metamorphosis (1st English edition London, Parton Press, 1937).
82 Fayed v SSHD [1997] 1 All ER 228.
83 See for example SSHD v AHK, GA, AS, MH, FT and NT; FM v SSHD [2009] EWCA 287, in which a number of
refugees with Indefinite Leave to Remain had sought the reasons for refusal of their applications for naturalisation, and
the court sought to establish how to approach such cases once the Secretary of State cited national security as a reason
for not giving the required information.

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British nationality used to be based on place of birth and close to irrevocable.84 The
administrative ease with which a person may now be deprived of British citizenship renders this
executive decision relatively routine and banal, even if the numbers – increasing as they may be
- remain small in absolute terms. 85 That, in turn, changes the nature of British citizenship itself.
Anything that can be removed by a relatively simple administrative process is vulnerable to
individual or political opportunism or human error. The courts have been vigilant, establishing
the right to review elements of the decision-making process, but the breadth of the change
makes citizenship itself more conditional and fragile. This, of course, may be regarded as
having been the intention; perhaps some would see an element of deterrence in the process.
It mirrors the growing conditionality of citizenship in other areas.86 The growing frequency of
deprivations, as well as the relative ease, thus contributes to a change of culture; British status is
less secure than it used to be, and the solidity of Britishness has been lost.
The various elements of the current British law of deprivation of citizenship are not
without precedent. There is precedent for deprivation of natural-born citizens as well as
revocation of grants of naturalisation, but the institution of citizenship as contingent rather than
essential, and the method of implementation is perhaps itself part of a more global trend, or at
least of a change of culture in the common law countries.87 It also reflects much wider political
links and trends. At the same time that Britain was passing its general power of deprivation,
the USA was refusing to admit two Muslim residents, one of them a US citizen, for equally
unspecified and thus unassailable reasons.88 Those being deprived of citizenship are almost all
Muslims and most of these deprivations have occurred in the context of the ‘War on Terror’
(the one exception being the Russian-born spy Anna Chapman). The IRA however previously
made a similar mark on mainland Britain. We know about the cases of the Guildford Four and
the Birmingham Six because, when they were first deprived of their liberty, the legal process
required the public production of evidence to prove that they were at fault. When that system
was corrupted, there followed a longer process of showing that that evidence was false. The
cases are a famous, though it would not be quite right to call them a ‘celebrated’, episode in
British legal history.89
The near-abandonment of the legal process in relation to deprivation of citizenship is
new. Deprivation used to require the Secretary of State to have a substantive reason, and there
was a process for challenging the decision and requiring the Secretary of State to justify it. The
current process, or lack of it, means that, if any of the background of the cases of deprivation
is as mistaken as were the convictions of the Birmingham Six or the Guildford Four, that may

84 No voluntary renunciation was possible at common law. Treason or acts close to it might mean the loss of the rights
incident on British subjecthood by the process of attainder, but this from early on was a quasi-political, Parliamentary
process rather than an executive decision
85 The deprivation provisions of the NIAA 2002 came into force on 1 April 2006. David Blunkett, the Home Secretary,
confirmed on 7 April that he had ‘commenced action under the new provision’ against Abu Hamza. When Damian
Green was asked in March 2011 for figures for deprivation orders in the last five years, he gave a figure of nine (one
each in 2006 and 2007, none in 2008, two in 2009 and five in 2010).
86 Although the relatively recent concept of naturalisation has long required that a candidate be of ‘good character’, this
requirement has been extended to those becoming British by registration.
87 Shai Levi discusses this in the context of the common law countries as a rejection of ‘the traditional common law
notion of ‘breach of allegiance’‘ in ‘Punishment and the Revocation of citizenship in the United Kingdom, United
States, and Israel’ (2010) Vol 13 New Criminal Law Review 404 – 426.
88 Lett Volpp ‘Citizenship Undone’ (2007) Fordham Law Review 2579-2586.
89 This area has also been represented in dramatic form: In the Name of the Father (film: Jim Sheridan, 1993).

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 Immigration, Asylum and Nationality Law, Vol 27, No 1, 2013

be of no legal significance.90 Not only is there no trial to test whether the Secretary of State has
grounds for deprivation, but in any case the essence of those grounds is not what the person
to be deprived has actually done, but can be as low as what the Secretary of State (or in reality
an immigration officer) thought they might do.91 Whilst this is a huge legal change to the
meaning of citizenship and the power of the executive over the lives of individuals, it is perhaps
the public silence that is the most significant of all. There has been no public outrage at the
introduction of simple, near-arbitrary deprivation of British citizenship even for the British-
born. The structural equivalence of the powers with those that have wrought political havoc in
the past passes unremarked even by those who read the books and watch the films about that.
This may be because the small number of deprivations obscures the potential of the powers,
or perhaps because they have so far only been of naturalised Muslims (apart from the Russian
spy). It may be thought that there is, after all, not so much distance between deprivation of a
British-born person of foreign heritage and not giving British-born persons of foreign heritage
British citizenship unless their parents have the correct nationality or immigration status at the
time of their birth.92 This itself might be considered not so far from recognising the right to
come to Britain of only those British nationals with ‘connections’ to the UK demonstrated
by the birth in the territory of the claimant or a parent or grandparent, as happened when the
Commonwealth Immigrants Acts restricted the right of overseas British nationals to come to the
United Kingdom. It may be that the first time a British-born person is deprived, there will be
some such outrage, but at a time of social division especially if the British-born person is from a
Muslim community, perhaps not. Perhaps if the power to deprive British-born British citizens
of their citizenship for no very clear or necessarily serious reason is used against someone whose
foreign citizenship (so they are not left stateless) is considered more ‘accidental’,93 there will
then be some greater appreciation of the fundamental nature of this provision, and its power
to destabilise the legal concept of Britishness from within. The significance of the silence will
then perhaps be seen differently, as a failure to see what the provisions said, or perhaps a failure
to believe it.

Caroline Sawyer,
Senior Lecturer, Victoria University of Wellington

90 The late and sometimes lamented Lord Denning of course thought they should not have been allowed to appeal
even if they were innocent: ‘If they won, it would mean that the police were guilty of perjury; that they were guilty
of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the
convictions were erroneous. … That was such an appalling vista that every sensible person would say, “It cannot be
right that these actions should go any further.”’ McIlkenny v Chief Constable of the West Midlands [1980] QB 283, at
323D.
91 So long as this is the law and it is used, there will be no easy way of dealing with the adverse publicity about cases such
as that of Mahdi Hashi, who was served with a deprivation notice whilst abroad, having previously asserted that he had
been threatened by the British authorities should he continue to refuse to spy for them: http://www.bbc.co.uk/news/
uk-england-london-20157167 .
92 As was introduced by s 1 British Nationality Act 1981, replacing the previous rule that birth in the territory was
sufficient, regardless of parents’ status.
93 Noting the terminology of the ECtHR when it defended the right to expel British-born British national children with
their foreign parents, on the grounds that their British nationality was merely the result of their parents’ being in Britain
when the child was born: O and L v United Kingdom, Application No 11970/86.

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