By
Elizabeth Gibson
Statelessness is normally the purview of systematic discrimination, mass displacement, or state death – Rohingya living in a state of eternal limbo in refugee camps, families of Haitian descent trapped as an underclass in the Dominican Republic, or former residents of the Soviet Union who were abroad when their country literally ceased to exist.
Statelessness is normally the purview of systematic discrimination, mass displacement, or state death – Rohingya living in a state of eternal limbo in refugee camps, families of Haitian descent trapped as an underclass in the Dominican Republic, or former residents of the Soviet Union who were abroad when their country literally ceased to exist.
Now,
the United Kingdom is toying with making statelessness a punishment, and the
international human rights community is less than amused (to use some British
understatement).
A
stateless person has no recognized citizenship in any country. Real statelessness is not just having your passport
revoked (like Edward Snowden), it is legal non-existence, a lack of the “right
to have rights.” During the House of Lords debate on a proposed immigration bill amendment today, Baroness Helena Kennedy
explained:
“Deprivation
[of citizenship], with all its consequences in the modern world, is equivalent
to a penal sanction of the most serious kind, but imposed without a criminal
trial, without a conviction, without close and open examination of the
evidence, and without an effective opportunity of defence, contrary to the
requirements of due process.”
Now,
in fairness, statelessness exists in every country to varying extents – there
are an estimated 12 million stateless people in the world. There also are other cases of states stripping someone's nationality based on national security or moral character. However, most of
the world is seeking to reduce statelessness, and countries like the United
Kingdom generally receive stateless people from other parts of the world but
rarely create statelessness. For example, the United States just reworked its nationality law to eliminate a rare form of
accidental statelessness last month, and the United Kingdom itself was
applauded by the
U.N. Refugee Agency last year for introducing a mechanism that created a path
to legal status for stateless persons.
In
spite of this, the United Kingdom is currently entertaining an immigration bill amendment that would allow the Home
Secretary to revoke the nationality of citizens whose presence she deems “not
conducive to the public good.” Essentially, this means terrorists. However,
while everyone agrees that terrorists are a threat to national security,
normally countries with rule of law send terrorists to court and then prison as
opposed to stripping them of their existence.
The
proposed amendment came from the U.K. Home Office in response to a ruling of the Supreme Court of the
United Kingdom, which held that the Home Secretary could not revoke someone’s
citizenship if it would render him stateless. The court’s decision was based on
both an explicit ban under U.K. law on stripping a
person’s citizenship if it would result in statelessness and obligations under
the 1961 Convention on the Reduction
of Statelessness.
However,
the convention also provides a loophole based on narrow grounds, including if a
person 1) disregards an express prohibition on serving or receiving payment
from another state or 2) undertakes conduct seriously prejudicial to vital
state interests.
In
order to invoke one of these grounds to render someone stateless, the
convention requires that a reservation be made to the treaty and that these
grounds be enumerated in state law at the
time the reservation is made. The United Kingdom did file a reservation and
did have such a law in place. However, subsequent immigration legislation has
changed the relevant language, and the Nationality, Immigration and Asylum Act of
2002 included an express prohibition on stripping someone’s citizenship if it
would render him stateless. All of this has prompted a debate over whether the
United Kingdom permanently lost its power to render someone stateless under the
convention when it amended the original legislation. This idea is based on the treaty
language requiring that the law exist at the time the reservation is filed.
However,
even setting that argument aside, removing a person’s citizenship also
implicates other international obligations. Statelessness leaves people vulnerable
to human rights abuses by making it more difficult for a person to access both
civil and political rights as well as economic, social, and cultural rights. For
example, the European Court of Human Rights has recognized that arbitrary deprivation of
nationality may violate the right to respect for private life.
Furthermore,
what is the point? How does telling someone that he is no longer a U.K. citizen
make the people of the United Kingdom any safer? The United Kingdom cannot
deport people unless another country agrees to receive them, and members of the
House of Lords pointed out that states are less likely to
take someone who is stateless for fear of being burdened with them.
The House of Lords also quoted Guy
Goodwin-Gill, a professor of international refugee law at the University of
Oxford, as stating that:
“Any state which admitted an individual on the basis of
his or her British passport would be fully entitled to ignore any purported
deprivation of citizenship and, as a matter of right, to return that person to
the United Kingdom.”
The
United Kingdom already has used existing law to strip 37
dual nationals of their U.K. citizenship in the last three years (their
second citizenship meant they would not be stateless). The Bureau of
Investigative Journalism has an
excellent piece on what loss of citizenship has meant for these ex-Brits,
including two who were killed by a drone strike a year after losing their
citizenship.
Luckily,
politicians from all the major parties in the United Kingdom appear to be
skeptical of the Home Office’s proposal. Check out the live tweets from the House of Lords debate
today over at the Bureau of Investigative Journalism.
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