Excluding British citizens who pose a security threat: what can the Government do?

Part of the Government’s response to cases of British nationals involved in fighting, extremist activity or terrorist training overseas is to use powers to strip people of their British citizenship status and to refuse to issue British passports.

On 1 September the Prime Minister confirmed that the Government is considering what further action it can take to deal with the security threat posed by such individuals. Some commentators have questioned the legality and practicality of some of the Government’s initial proposals.

What citizenship-stripping powers already exist?

Section 40 of the British Nationality Act 1981 (as amended) already contains powers to strip (‘deprive’) people of their British citizenship status in certain circumstances:

  • If the person acquired their citizenship status by naturalisation or registration, and it was obtained by means of fraud, false representation or concealment of any material fact
  • If it would be “conducive to the public good” to deprive the person of their British citizenship status, and to do so would not make them stateless (i.e. if they also have another nationality)
  • If the person obtained their citizenship status through naturalisation, and it would be conducive to the public good to deprive them of their status because they have engaged in conduct “seriously prejudicial” to the UK’s vital interests, and the Home Secretary has reasonable grounds to believe that they could acquire another nationality. (This ground was introduced by the Immigration Act 2014).

The Home Secretary also has powers to withdraw and refuse to issue British passports. The Government now intends also to give the police powers to seize passports temporarily from travellers who come under suspicion at UK borders.

Why does the Government want further powers?

The Government cannot take British nationality away from people who acquired it automatically at birth and do not have any other nationality status.

The Prime Minister said that this leaves a gap in the UK’s defences:

The Government are clear that it would be wrong to deal with the gap by fundamentally changing core principles of our criminal justice system. But it is abhorrent that people who declare their allegiance elsewhere can return to the United Kingdom and pose a threat to our national security. We are clear in principle that what we need is a targeted, discretionary power to allow us to exclude British nationals from the UK. We will work up proposals on this basis with our agencies, in line with our international obligations, and discuss the details on a cross-party basis. (HC Deb 1 September 2014 c26)

Initial responses to the Government’s proposals

The Prime Minister’s statement received a mixed reaction from Parliamentarians and external commentators. Although some have welcomed the intent behind the proposals, questions have been raised about their legality and practical implications.

As some commentators have pointed out, the UK has obligations under international law to prevent statelessness. For example, the 1961 UN Convention on the Reduction of Statelessness does not allow states to deprive an individual of their citizenship if it would make them stateless, apart from in certain limited circumstances which are already provided for in British nationality law.

Perhaps in recognition of such constraints, Mr Cameron’s statement indicated that the Government is considering powers to temporarily exclude British nationals from re-entering the UK, without stripping them of their British nationality status entirely. The Prime Minister has said he is confident that such a move would be “legally permissible”:

The short answer is that I do believe it is legally permissible, but it is going to take some work, (…) Of course, the best thing to do is to gather evidence, prosecute, convict and imprison, but there may be occasions when we need to exclude, and so therefore we should fill that gap in our armoury, and I believe it is legal and possible to do it. (HC Deb 3 September 2014 c276)

It is difficult to discuss such matters with any clarity until the precise details of the Government’s proposals are known. However, the legality of the Government’s plans is not the only aspect to have come under scrutiny.

David Anderson QC, the Government’s Independent Reviewer of Terrorism Legislation, has suggested several potential practical difficulties with the fledgling proposals:

“Where is the power to be exercised? Is it when the person is in Turkey, say on his way back from Syria? Is there some way of stopping him from coming back? And if so, where does the person go? Do they go back to Syria for a bit more jihad? Do they go and find a beach somewhere in Turkey?

“And, of course, if we start doing this then presumably we must accept the consequences that other people might do it as well.”

Dominic Grieve QC, the former Attorney-General, has also questioned the likely effectiveness of temporarily banning British nationals from re-entering the UK:

How would a temporary ban assist security, except temporarily?

(…)

The hard truth is that there is no easy solution to the problem of young jihadis and none of these proposals will on their own give us security. That will only come from winning the values battle that confronts pluralist democracy facing violent fantasists obsessed with the creation of “ideal” societies that reflect their views.

Believing in and practising the principles of the rule of law is, with our liberty and democracy, among the most powerful weapons we have. It is less effective if we blur its clarity and we should do this as sparingly as possible.

An editorial in The Telegraph expressed support for the Prime Minister’s view that people who wish to live in the UK are under a duty to adhere to British values, and argued that those who pledge allegiance to foreign terrorist organisations should be asked “searching questions”. However, it cautioned that other action would still be needed to address the “root cause” of the extremist threat:

… it should not be forgotten that those who travel to Iraq and Syria to fight will have been exposed to radical Islam here in the UK first, either online or in their communities (…). Unless this root cause of extremism is fixed, we will be fighting the outcome for decades to come.

For the time being, the Government is continuing to develop the detail of its proposals, which it says will be discussed on a cross-party basis.

Author: Melanie Gower

Further reading

Library note SN06820, Deprivation of British citizenship and withdrawal of passport facilities, 4 September 2014