Introduction

The Nationality and Borders Bill (NABB) proposes controversial amendments to the UK’s citizenship deprivation power under s. 40 British Nationality Act 1981 (BNA). The Home Secretary seeks a power to dispense with the requirement to give notice of deprivation decisions to those affected, in an act of “striking back” (Harlow and Rawlings at Chamberlain J’s decision in D4 v SSHD. This post aims to analyse Clause 9 NABB from a comparative perspective, drawing on the provisions for depriving citizenship without notice in Australia’s Australian Citizenship Act 2007 (ACA) and New Zealand’s Citizenship Act 1977 (CA). It argues that, although Australia and New Zealand have similar powers to withhold/dispense with notice, the proposed UK power would be broader and more draconian, yet subject to fewer constitutional control mechanisms.

Sheppelle, considering a “forensic legal analytical framework” to assess constitutional changes, argues that “[t]he only way we can tell for sure whether a new constitutional framework has built-in traps for the unwary is to consider the legal order as a system with interacting parts” (p. 4). She invites us to ask “a series of “what if?” questions to test for interaction effects”. Applying her framework in testing whether the proposed power accords with the rule of law, Article 8 ECHR (see K2 v UK)), and Article 9(4) of the Convention on the Reduction of Statelessness, the question I pose is: “what if the executive used the deprivation and dispensation powers arbitrarily?” While Australia provides for political and New Zealand judicial checks and balances, under the proposed provision in the UK, the executive would be judge, jury, and executioner.

Australia’s Deprivation Power and Power to Withhold Notice of a Decision

Australia may deprive a person of citizenship where there is fraud, they have committed certain offences or they will or did not meet certain residence requirements (ss. 34-34A ACA). Further, there are two national security grounds. The first is an administrative power when the Minister is satisfied that a person, located outside of Australia, engaged in certain conduct which “demonstrates that the person has repudiated their allegiance to Australia” and that “it would be contrary to the public interest for the person to remain an Australian citizen” (s. 36B ACA). The relevant conduct is confined to specific terrorist-related activities, “foreign incursions and recruitment” and “serving in the armed forces of a country at war with Australia”: s. 36B(5). Further, there are legislative criteria for the public interest test: s. 36E. The second power is similar to the first albeit it follows a criminal conviction: s. 36D. By providing clearly defined grounds in the legislation, the Australian Parliament has acted as an ex ante hoc control mechanism to limit the extent of the deprivation powers. It would enable the courts to review the legality of a deprivation decision. This is the first layer of protection against the arbitrary exercise of the power.

The ACA provides for a carefully constructed and defined “withholding of notice” (rather than dispensation) power: s. 36G ACA. First, it is confined temporally up to six years and subject to continuous internal review every 90 days: s. 36G(2)-(5). This ensures that there will be a duty to give subsequent notice and the decision remains contemporaneous. Secondly, the power only applies to the national security grounds under ss. 36B and 36D, in accordance with the national security justifications. Thirdly, there must be “prejudice” to one of the protected areas, suggesting there must be some harm in giving notice. These protected areas are confined to “the security, defence or international relations of Australia, or Australian law enforcement operations”. As with the deprivation power itself, these provisions provide a clearly defined power exemplifying ex ante hoc legislative control on the executive exercise of this power.

Alongside clearly defined legislative provisions as a form of ex ante hoc control, the Australian system also provides for ex post hoc political control over the exercise of the power, in the form of reporting to Parliament and independent review. First, the Minister must give regular reports to Parliament about the use of the deprivation power: s. 51B. Secondly, “[t]he Minister must, in writing, inform the Parliamentary Joint Committee on Intelligence and Security as soon as practicable” after “the Minister makes a determination […] that notice of citizenship cessation should not be given”: s. 51C(1). The Committee can then make a mandatory request for the Minister to brief them on the basis of the determination to withhold notice: s. 51C(3). Thirdly, the jurisdiction of the Independent National Security Legislation Monitor (INSLM) expressly includes citizenship deprivation (ss. 4(aa), 6(a)(i), 7(1), and 7A(1) Independent National Security Legislation Monitor Act 2010). These reports are made to both Government and Parliament. As a testament to this mechanism’s effectiveness, in 2019, the INSLM carried out a review which led to the removal of a controversial system of “automatic” citizenship deprivation.

The legislation is designed with counterterrorism and national security in mind, but equally provides safeguards against the abuse of such powers. Accordingly, if the executive were to use the deprivation and dispensation powers arbitrarily, the legislature and INSLM would have access to this information providing a route for executive accountability.

New Zealand’s Dispensation of Notice Power

In New Zealand, there is a power to deprive citizenship which has been “procured by fraud, false representation, or wilful concealment of relevant information, or by mistake” (s. 17 CA).  Further, the Minister may make a deprivation order if “he is satisfied that the person… acted in a manner that is contrary to the interests of New Zealand”: s. 16(a); cf s. 16(b). The New Zealand national security deprivation power is broader in scope than the Australian grounds as it grants the executive discretion to determine what is “contrary to the interests of New Zealand”. However, it is based on precedent fact which would enable a court to review whether there was an objective basis for the decision. Further, the power can only apply to those who have acquired a second nationality “by any voluntary and formal act”, presumably meaning automatic acquisition of citizenship will not cut it. Finally, as we will see, there is a judicial control mechanism.

The Minister can only dispense with notice “where the whereabouts of the person concerned are unknown or for any other reason service on him of a notice under this section is not practicable”: s. 19(3). It is not clear whether it may not be “practicable” to give notice to an intended deprivee, where doing so may cause a national security risk. A restrictive interpretation would suggest it does not. Unlike Australia, the power applies to both the fraud and national security grounds and is, therefore, broader in application.

A crucial safeguard against unjustified dispensations is that the Minister must apply to the High Court for dispensation of notice (s. 19(3) CA). This ensures judicial scrutiny of the exercise of the power. If the High Court dispenses with notice, it will then carry out a full merits review of the decision to deprive (Taylor v Minister of Internal Affairs (MIA) [2016] NZHC 868 [20] citing Yan v MIA [1997] 3 NZLR 450 [459]; Joseph v MIA [2012] NZHC 49 [25]). This acts as a check to the arbitrary use of the deprivation power. As the High Court held in Taylor at [87]:

While the grant of citizenship is not the conferral of an inalienable right there is no question that deprivation of citizenship is of such magnitude to the citizen that a failure to observe the principles of natural justice is likely to imperil the integrity of the deprivation process.

Accordingly, the judicial control of New Zealand’s system provides checks and balances against the arbitrary exercise of the deprivation and dispensation powers.

The Deprivation Power and Proposed UK Dispensation of Notice Power

The UK deprivation power is broader than Australia and New Zealand

Under the BNA, the Secretary of State may deprive a person of citizenship where “obtained by means of— (a) fraud, (b) false representation, or (c) concealment of a material fact” (s. 40(3) BNA). This is similar to the New Zealand “fraud (etc.)” power and the fraud provisions in Australia.

However, the UK national security grounds under s. 40(3) and (4A) BNA grant much broader executive discretion than Australia and New Zealand. The first power is where “the Secretary of State is satisfied that deprivation is conducive to the public good”: s. 40(2) BNA. It was enacted in 2006 to “strike back” at the High Court’s decision in Hicks v SSHD. The Joint Committee on Human Rights concluded that the amendment contained “insufficient guarantees against arbitrariness in its exercise in light of (i) the significant reduction in the threshold, (ii) the lack of requirement of objectively reasonable grounds for the Secretary of State’s belief” (JCHR, 5 December 2005). As a question of judgment (i.e. future risk) within the executive’s institutional competence, the Home Secretary has a broad discretion to define “conducive to the public good” and determine whether the test is satisfied (R (Begum) v SIAC, [56]; SSHD v P3, [97-102]). This is considerably broader in scope than both Australia, where the grounds are clearly defined and expressly linked to terrorism and national security, and New Zealand, where the power is dependent on establishing the objectively reviewable occurrence of precedent fact.

The second power, enacted to “strike back” at the Supreme Court decision in SSHD v Al Jedda, is where the Secretary of State has “reasonable grounds for believing” that the naturalized deprivee is “able… to become a national” of another country and is satisfied that “the deprivation is conducive to the public good because the person… has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”: s. 40(4A). Although this ground is similar to New Zealand’s CA, in that it is based on past conduct (albeit more tightly defined), it differs significantly as it enables the UK to make a person stateless who subjectively may have an entitlement to a second citizenship (although cf Pham v SSHD on de facto statelessness). While there is an appeal against deprivation decisions, we will see that this control mechanism is substantially undermined when it interacts with the dispensation power.

The UK dispensation power is broader in scope and application than Australia and New Zealand

Alongside the UK deprivation power being broader than the equivalent powers in Australia and New Zealand, the dispensation power under clause 9 NABB is much broader in scope and application than both s. 36G of Australia’s ACA and s. 19(3) New Zealand’s CA. Clause 9 NABB would apply to all three deprivation powers. There would be two categories of dispensation. The first is where, for practical reasons, the Secretary of State decides that notice cannot be given: s. 40(5A)(a) and (b). This is similar to s. 19(3) CA in terms of substance but, we will see, dissimilar procedurally. With the objective of administrative efficiency in mind, in such circumstances, there may be a justification for dispensing with notice. However, a serious issue is that it is the Home Secretary who decides whether this ground is met, absent independent scrutiny or accountability.

The second is where dispensation is “in the interests of national security… the relationship between the United Kingdom and another country, or … otherwise in the public interest”: s. 40(5A)(c). The “Factsheet” suggests that this power will only be used where there is a pressing national security need and “only in exceptional circumstances”. If that is so, it is difficult to justify why this is not confined to the national security grounds as in Australia. Further, in contrast to the ACA, the “otherwise in the public interest” test is very broad allowing, in practice, for the power to be used in an almost unlimited range of circumstances. David Anderson QC observes: if the power is only to be used in exceptional circumstances, “why didn’t you say so in the Bill? The Home Secretary can dispense with notice whenever she thinks it is “in the public interest” – no need for exceptionality, or natsec concerns. Warm statements of intent are no substitute for properly defined laws.”

Finally, there would be no requirement on the Home Secretary to give subsequent notice following dispensation. Blick observes: “[t]he likelihood is the government would elect to specify, as a matter of practice, that it will eventually give notice. The concern remains that NC19 may give the Home Secretary a wide discretion about delaying and even denying information about deprivation of British citizenship.” This power is far from the clearly defined grounds, temporal limitations, and continuous review of the ACA. It provides wide scope for arbitrary use of the power.

While the power under clause 9 NABB is broader and more draconian than ACA and CA, there are fewer control mechanisms to prevent its arbitrary exercise

While the proposed power under clause 9 NABB would be broader and more severe than the equivalents in Australia and New Zealand, the UK does not provide for political or judicial control mechanisms. First, there would be no political accountability as decisions would be made behind closed doors by Home Office “officials and lawyers” and not publicised or reported to Parliament. Secondly, there is currently no oversight or review mechanism of the use of deprivation and the dispensation power. In Jonathan Hall QC’s 2019 report as the Independent Reviewer of Terrorism Legislation (IRTL), he observes that there is an “inadequate level of independent review of citizenship deprivation”: para 1.12. However, his “recommendation that the role of Independent Reviewer should be extended to any legislation used for counter-terrorism purposes was rejected by the government”. While there is a duty on the Secretary of State to “arrange for a review of the operation” of s. 40(4A) BNA (the third deprivation power above) (s. 40B BNA), there does not appear to have been such a report since 2016 by Lord Anderson QC, then the IRTL. The lack of reporting obligation and independent review reduces Ministerial accountability to Parliament, to the electorate (if such an issue would even be politically salient) and hinders media and civil society scrutiny.

The Government “Factsheet” seeks to reassure us that dispensation “would not impact the individual’s right to appeal”. However, how can someone know that they need to appeal a decision if they do not have notice of the decision in the first place? Returning to Blick’s point, there would be no obligation, even when the individual attempted to enter the UK, to inform them that they had been deprived of their citizenship. As there is no temporal limit on the dispensation power, this information could be withheld indefinitely. In Anufrijeva v SSHD at [26], Lord Steyn observes that the requirement to give notice is “simply an application of the right of access to justice”. Absent notice of a decision, there is judicial control of neither the dispensation nor the deprivation power. This is before considering the obstacles caused by an out of country appeal and the closed material procedure in the Special Immigration Appeals Commission.

Conclusion

In assessing the constitutional implications of clause 9 NABB, I asked the question: “what if the executive used the deprivation and dispensation powers arbitrarily?” The Australian dispensation power has provided political checks and balances: clearly defined grounds for deprivation and dispensation of notice, continuous internal review, a time limitation of six years, reporting to Parliament, and independent oversight and review. The New Zealand power has provided judicial control: a requirement to apply to the High Court for dispensation and full merits review of the deprivation decision. However, Clause 9 NABB would grant broad executive powers and provide for inadequate control mechanisms of their exercise. It allows great scope for the UK Government to use the deprivation and dispensation powers on arbitrary grounds and without accountability. While there may be justifications for a power to dispense with or withhold the giving of notice of a deprivation decision, there is no justification for such a power to be without adequate safeguards against the arbitrary use of the power and to protect individual rights. The Australian and New Zealand provisions offer alternative mechanisms for the UK Parliament to consider to ensure the “integrity of the deprivation process”, whether controlling the executive politically or judicially.

Jeremy Ogilvie-Harris is a paralegal at Hackney Community Law Centre practising in housing and welfare benefits. He recently completed a Public Law LLM at UCL where he studied judicial review, comparative constitutional law, national security, and the environment.

(Suggested citation: J. Ogilvie-Harris, ‘A Comparative Perspective on the Constitutionality of Clause 9 of the Nationality and Borders Bill’, U.K. Const. L. Blog (12th January 2022) (available at https://ukconstitutionallaw.org/))