2017
Citizenship used as an anti-terrorism tool
DENATIONALIZATION AND ITS CONSEQUENCES LISA ERKANDER
UPPSALA UNIVERSITY
DEPARTMENT OF GOVERNMENT MASTER ́S THESIS SPRING 2017 AUTHOR: LISA ERKANDER
SUPERVISOR: SOFIA NÄSSTRÖM
1 ABSTRACT
Denationalization, to deprive citizens of citizenship, is becoming an international trend – especially in order to fight terrorism. Public opinion is generally positive to these measures. However, few consider the consequences of denationalization. Only when investigating further it becomes clear that citizenship scholars are very concerned about this new trend pointing out that it easily becomes arbitrary, creates statelessness, threatens equality and how it is not an effective measure. This thesis investigates whether Members of Parliament in the UK address these concerns when extending denationalization powers, giving the Secretary of State the most extensive powers to denationalize among all liberal democracies.
KEYWORDS: denationalization, deprivation of citizenship, citizenship- stripping, terrorism, citizenship, statelessness.
2 Table of contents
1. Introduction ... 3
1. 1 Structure of the thesis ... 6
2. Theoretical background ... 7
2.1 Definitions & usage ... 7
2.2 Historical roots ... 9
2.3 Normative debate ... 10
2.4 A changing citizenship? ... 13
3. Research Methodology and Material ... 15
3.1 Design and case selection ... 15
3.2 Qualitative content analysis & descriptive idea analysis ... 17
3.2.1 Disadvantages & advantages ... 18
3.3 Operationalization ... 19
3.3.1 Classifications ... 20
3.4 Material ... 21
4. Empirical investigation and results ... 23
4.1 Revival of denationalization – The Nationality, Immigration and Asylum Act of 2002 ... 23
4.1.1 Context ... 23
4.1.2 Process ... 25
4.1.3 Concerns addressed ... 26
4.2 Responding to terrorism – Immigration, Asylum and Nationality Act of 2006 ... 31
4.2.1 Context ... 32
4.2.2 Process ... 33
4.2.3 Concerns addressed ... 33
4.3 Introducing statelessness – The Immigration Act of 2014 ... 36
4.3.1 Context ... 37
4.3.2 Process ... 38
4.3.3 Concerns addressed ... 40
5. Discussion ... 46
5.1 How is denationalization justified? ... 46
5.2 Reflections on the results ... 50
5.3 Future research ... 52
6. Conclusion ... 54
7. References ... 55
3
1. Introduction
After a century of very limited usage, banishment is back. A growing number of states are already implementing or considering to reinstall banishment of citizens as a tool against terrorism. In a rapidly growing number of liberal democracies, participation in a terrorist attack or connections to terrorist networks, or acts deemed to be “prejudicial to the public good”, can result in loss of citizenship, in this thesis referred to as denationalization. So far, denationalization is mainly used as a response to terror acts, however it is increasingly considered for other serious crimes as well. For example, in the United Kingdom (UK) citizens can be denationalized for all acts the Secretary of State deem to be “seriously conducive to the public good” (Immigration Act 2014 c.66).
The recent revival of denationalization started in the UK in 2002 in the wake of the 9/11 terror attacks in New York. Since then, denationalization as a tool against terrorism has spread across liberal states. In fact, within the last two years it has been introduced in a long list of countries, for example in: France, Canada, Australia, Austria, Denmark, Romania, Montenegro, and the Netherlands (EUDO n.d.). Several countries, the United States being one example, are debating whether they should follow their example (Gajanan 2016).
Denationalization of terrorists has received large public support in countries where it is implemented. In countries such as France, Australia and the UK a large majority are positive to denationalization and find it logic that those that threaten the very fundaments of society no longer deserve their citizenship (see for example Bourmaud 2015, Holehouse 2014, Massola 2015). Still, denationalization policies have rarely been used and it is not until lately we have seen the number of deprivation orders increase (Gibney 2014:333). If we do not look further into the debate denationalization would seem like a rather uncontroversial policy as it is supported by the public and used restrictively. However, plunging into the theoretical debate it quickly becomes evident that this is a very complicated issue and many scholars are extremely worried about the spread of denationalization, suggesting that it is changing citizenship as we know it.
Several well-known scholars in the field of citizenship studies, argue that denationalization is changing citizenship itself – making it less secure, stable and predictable, not only for terrorists, but for everyone (see for example Bauböck 2015, Gibney 2015, Kanstroom 2015,
4 Macklin 2015a, 2015b). They point to four main concerns with denationalization: (i) that it increases the arbitrary power of the state in an area previously considered beyond state discretionary power, (ii) that it creates statelessness and put individuals in very difficult situations, (iii) that it creates inequality as citizens are treated differently based on how they acquired their citizenship or the number of citizenships they have and (iv) that it is ineffective from an international perspective not encouraging international cooperation in the fight against terrorism. These scholars suggest that the legal status of citizenship is threatened when citizenship can be lost for misconduct, indicating that citizenship is becoming a privilege rather than a basic right. Consequently, these scholars highly discourage the spread of denationalization that we are currently witnessing.
The four concerns addressed by citizenship scholars puts denationalization in a complicated issue area. It is no longer simply a punishment for terrorists but it touches upon many sensitive issues such as migration, security, international terrorism, the role of the state and even basic democratic principles such as justice, fairness and equality. However, it is still too early to judge the consequences of denationalization and tell whether the scholars’ worries are warranted. Yet, this thesis argues that the concerns and potential consequences with denationalization should be considered.
The purpose of this thesis is to see whether politicians consider the potential problems with denationalization in political debates when deciding to extend the powers to denationalize.
This is measured by looking at the four main concerns of scholars and how well they are represented in the political debates. It is especially interesting to look at the UK as the Secretary of State has more powers to denationalize citizens than any other politician or judge in a liberal democracy (Gibney 2015:40). In extension, this will increase our understanding of how the discussion and implementation of denationalization could affect citizenship.
The overarching research question is the following:
- How do parliamentarians in the United Kingdom justify denationalization and its consequences?
5 In order to understand whether the Members of Parliament (MPs1) had an opportunity to properly address these concerns the process and context of the debates will also be considered. International and national events as well as the MPs’ own experience of the process will give an understanding of whether there were any constraints or difficulties in addressing the scholars’ four concerns.
More specifically, the thesis will investigate three questions:
- In what context are decisions on extending the United Kingdom’s denationalization powers taken?
- What did the process look like when extending denationalization powers in the United Kingdom?
- To what extent do Members of Parliament in the United Kingdom address the scholars’ four main concerns with denationalization?
The last question is where most of the focus is concentrated as the main ambition is to examine whether the scholars’ concerns a are present in the debates in Parliament.
To answer these questions a qualitative content analysis, and more specifically a descriptive idea analysis of the debates in the UK parliament, will be conducted. Three legislative proposals that drastically changed the legislation relating to denationalization are analyzed, namely: The Nationality, Immigration and Asylum Act of 2002, the Immigration, Asylum and Nationality act of 2006 and the Immigration act of 2014. These legislative changes gave the UK the most comprehensive powers to denationalize compared to all liberal democratic states.
Since the revival of denationalization is a relatively new phenomenon prior research is limited. In fact, research about the loss of citizenship in general is limited as scholars tend to focus on research related to the acquisition of citizenship. (Mantu 2015b:2) In the case of denationalization, prior research is predominantly normative discussing whether to implement denationalization policies or not. It is evident that further research is needed and it should be done quickly before all liberal states adopt similar legislation. This thesis will make a
1The abbreviation MPs will be used to refer to members of both Houses, normally Lords are called peers, but here both MPs and peers will go under the abbreviation MPs.
6 contribution to the empirical research about denationalization trough looking closely at the debates in the UK.
This study comes to the conclusion that the risk of arbitrary decision making is the only concern that the MPs really consider in the debates. It seems like the MPs did not have a clear picture or enough knowledge of the concerns addressed by citizenship scholars. This might be due to both processual and contextual constraints where the MPs had little time to debate in light of the growing threat of terrorism. In turn, this means that the MPs have given the Secretary of State big powers without fully addressing their consequences. As a result, citizenship as we know it could be changing.
1. 1 Structure of the thesis
The remainder of this thesis is divided into four main chapters. First, in the following section, the theoretical background is discussed with definitions, a short description of the historical roots of denationalization as well as the normative debate presenting the scholar’s four main concerns.
In the second chapter the thesis material and method are introduced to give a better understanding of how the study was conducted including the study’s disadvantages and advantages. The third chapter is dedicated to the results, presenting the debates for one legislative bill at a time. The results are organized according to the four main concerns, first discussing arbitrariness, then statelessness, equality and effectiveness of denationalization. In the fourth chapter the results are discussed and analyzed in relation to the bigger theoretical debate on denationalization and the paper ends with some concluding remarks.
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2. Theoretical background
In this section, the definition and the use of citizenship and denationalization will be presented together with a short description of the historical roots of denationalization. This is followed by a presentation of the normative debate about denationalization, discussing whether the implementation of denationalization is justified or not.
2.1 Definitions & usage
Citizenship
The definition of citizenship used in this thesis is taken from the European Union Democracy Observatory for Citizenship (EUDO) where it is defined as: “A legal status and relation between an individual and a state that entails specific legal rights and duties”. Citizenship is defined from a pure legal perspective, not incorporating other aspects which can be captured under the broader concept of nationality. (EUDO “Glossary” n.d.)
There are several ways to acquire citizenship. In the UK, it is possible to acquire citizenship in three ways: trough birth, naturalization or registration. To acquire citizenship by birth at least one of the parents must be a UK citizen, settled in the UK or a member of the armed forces. Citizenship by naturalization, which is acquired through application, is possible trough marriage or residence for more than five years. It is also possible to register for British citizenship which is an easier process than naturalization, but only some people are entitled to do so. To be eligible for registration an existing connection to the UK is required, for example children who have foreign parents but have lived in the UK for several years, adopted children or citizens of British Overseas Territories (Sawyer & Wray 2014:11-14)
Citizenship in the UK has become harder to acquire over time. Originally it was given to all those born within the empire, but now it is not even granted to all those born within the territory of the UK (Sawyer & Wray 2014:1-2). In addition, citizenship has become easier for the Secretary of State to remove, which is the theme of this thesis.
8 Denationalization
Denationalization, here defined as involuntary loss of citizenship (Gibney 2013a:639), can occur in several circumstances although they vary among countries. For example, citizenship can be lost involuntarily as a result of fraud in the application process when acquiring citizenship, after continued residency abroad, as a consequence of parents losing their citizenship, service in foreign army or acts of disloyalty or treason. There are also countries with no provisions regarding loss of citizenship where citizenship cannot be lost involuntarily.
(EUDO n.d.)
The focus of this paper is denationalization as a result of unwanted behavior, such as treason or serious crimes. Terrorism is often used as an example of an act that could lead to denationalization and it is even directly addressed in some countries’ legislation as one of the grounds leading to denationalization, sometimes joined by other severe crimes. (EUDO n.d.) Throughout this paper denationalization, deprivation of citizenship and citizenship-stripping will be used interchangeably. The notion of denaturalization is often used as a synonym to denationalization, only referring to loss of citizenship for naturalized citizens. Nevertheless, the notion denationalization is used in this thesis as even birthright citizens can be deprived of citizenship in the UK.
It is important to note that denationalization does not necessarily result in statelessness as it is normally applied to naturalized citizens that have dual citizenship. However, in the UK naturalized citizens can be rendered stateless in some cases. Normally naturalized citizens have a citizenship in their country of origin, but in some countries, such as Austria, Estonia and Ireland, this can be lost when applying for a new citizenship or due to long residence abroad (EUDO n.d.). Their only remaining citizenship can thereby be UK-citizenship although they are not British by birth.
Denationalization needs to be distinguished from deportation, where those that have not yet acquired citizenship status can be expelled from the territory. Deportation of non-citizens is more common, and arguably less problematic, than to denationalize citizens who have once lived up to the requirements in order to be granted citizenship.
9 2.2 Historical roots
Denationalization is not something new, all throughout history states have been known to banish unwanted citizens. The political theorist Hannah Arendt discusses denationalization that occurred after the first world war in her book Origins of Totalitarianism first published in 1951. She describes the situation that many Jews experienced of complete exclusion and rightlessness without a home and a place where one matters and where rule of law was undermined in favor of national interests. (Arendt 2004:275-276) She famously coined the expression “right to have rights”, suggesting that without citizenship you become rightless as there is no national or international body except the state, who protects human rights – a loss of citizenship rights also meant a loss of human rights and the right to belong to humanity itself (Arendt 2004:296-298).
Since Arendt’s time many international efforts have been introduced to decrease the amount of stateless people in the world. The 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention on the reduction of Statelessness, the 1997 European Convention on Nationality and international human rights treaties all include provisions relating to statelessness. They establish minimum rights and standards of treatment for the stateless and aim to prevent statelessness and reduce it over time. (UNHCR 2017) The UK has signed both the UN conventions, but has a reservation in the 1961convention stating that deprivation of citizenship remains possible in response to conduct “seriously prejudicial to the vital interests of Her Britannic Majesty” (UN 2017). The UK originally planned to sign the 1997 European Convention on Nationality which was made clear by the Labour government in 2002. However, these plans were later dropped as it was unclear whether UK legislation was in line with the convention after the legislative changes in 2006. (HC 2005-10-27, col:272)
Deprivation powers in the UK were proposed as early as in 1870, but they were quickly rejected by the parliament with references to how denationalization was both arbitrary and discriminatory as it treated citizens differently. However, deprivation powers were introduced in 1918 as a result of “Germanphobia”, distrust and hostility towards Germany, after the first World War. In contrast to many other countries, the powers to deprive UK citizens of citizenship have remained ever since, but they were barely used after the World Wars. It was not until 2002 that denationalization powers were revived and yet again presented as an
10 important tool to keep unwanted citizens out. The deprivation powers from 2002 increased significantly with the legislative changes of 2006 and 2014 (Gibney 2014:326-330), these three legislative changes will be further analyzed in this thesis.
It is clear that the norms of denationalization and statelessness have changed over time. At first banishment was considered a normal tool even if it resulted in creating statelessness, but after the World Wars the norms changed and international efforts to reduce statelessness were introduced. Today, as denationalization is introduced in a growing number of states, international norms seem to be changing yet again, this time in favor of denationalization and in the case of the UK in favor of creating statelessness.
2.3 Normative debate
To fully understand the delicate and complicated nature of denationalization this section provides a short overview of the normative debate with the principal reasons to implement denationalization and the principle arguments against its implementation. The arguments are effectively summarized under four main concerns: the risk of arbitrariness, the creation of statelessness, unequal treatment of citizens and an ineffective measure.
The risk of arbitrariness
One of the key discussions in the normative debate about denationalization relates to the role of the state. Those who are skeptic to denationalization believe that it gives the state too much power that easily can become arbitrary and compromise citizens’ rights. They argue that the state should not have the authority to distinguish between good and bad citizens and to revoke citizenship from those considered bad citizens. (Macklin 2015a:5)
Several scholars suggest that citizenship is a meta-right, an intrinsic right that guarantees all other rights which should be above the reach of the state. Macklin is worried that citizenship is moving from being a right to becoming a privilege and thereby dependent on performance which makes citizenship fragile from a judicial point of view. (Macklin 2015a:2, 2015b:52)
Moreover, even if current politicians might promise to use denationalization measures restrictively scholars are concerned that future decision-makers will use the powers more
11 extensively. In addition, scholars warn for a spill-over effect, where the powers increase over time spreading to new areas and affecting a larger part of the population, an effect Gibney suggests is visible in the UK. (Gibney 2015:40-41) Denationalization is suggested to be one of many examples of how states attempt to circumscribe rule of law in order to better achieve their policy goals (Kanstroom 2015:31).
Even scholars positive to denationalization warn for a development where the state under a guise of security increases its discretionary power. The UK is used as an example where denationalization powers are described as truly arbitrary since the Secretary of State as of 2006 can denationalize citizens on the loose grounds of acting “conducive to the public good”
(Joppke 2015:11). However, they believe that it is possible to create a non-arbitrary denationalization power under tightly defined material conditions that is in accordance with both constitutional and international law. They suggest that use of denationalization should be limited to the most extreme attacks on the nation’s security and that a liberal constitutional regime can control potential abuses of power by the state. (Hailbronner 2015: 9-10, Schuck 2015:25)
Creation of statelessness
Several scholars believe that denationalization is not a proportionate punishment, especially if it renders individuals stateless. Denationalization is even compared to the death penalty, suggesting that it entails a “political death” where a citizen is stripped of rights and protection associated with the former citizenship. As less rights-infringing punishments are available they suggest that these should be used instead. (Macklin 2015ab:3-4, 53; Bauböck 2015:27) On the other hand, some scholars believe that this problem can be overcome as each case would be judged individually and a proportionality test would be made prior to deprivation, looking at the severity of the crime, impact on the individual and his or her family, lapse of time and whether they are dual citizens or not (Hailbronner 2015:23).
Apart from one scholar in the normative debate, Christian Joppke, all scholars agree that it is problematic to create statelessness. Statelessness leaves individuals subject to a state’s power without influence, rights, security or protection. Gibney takes this one step further when he argues that even if one has a second nationality an individual might be rendered de facto stateless. He explains this as a situation where an individual has citizenship, yet is “forced to rely on a state that is unable to protect them or otherwise to deliver the fundamental rights
12 citizenship (or nationality) is supposed to guarantee”. (Gibney 2015:39) It is a situation where a person experiences a stateless-like situation although they have a citizenship. Joppke on the other hand, believes that terror against citizens should lead to a reconsideration of citizenship even if this would result in statelessness. He suggests that more sympathy must be shown to the victims of a terror attack than to its culprits (Joppke 2015:11).
Unequal treatment of citizens
The fact that different groups of citizens are treated differently based on their background and whether they have one or multiple citizenships is another common argument against denationalization. Normally only naturalized citizens with dual citizenships can be denationalized after committing a severe crime, often related to terrorism. All naturalized citizens thereby have a less secure citizenship than those that acquired it through birth.
Spiro argues that denationalization arbitrarily discriminates against those with dual citizenship. That citizens with a random non-related second citizenship could be subject to denationalization makes their citizenship less secure, creating a type of second-class citizenship. (Spiro 2015:7) Responding to this claim Hailbronner argues that there are international laws prohibiting discriminatory citizenship, but that denationalization policies do not call these into question. He suggests that interference with individual rights is justified under clearly defined material conditions. (Hailbronner 2015:23-24) Schuck adds that as long as denationalization does not lead to statelessness we should not be concerned over inequality between different categories of citizens as everyone is entitled to citizenship somewhere (Schuck 2015:10).
An ineffective measure
The fourth and final major discussion in the normative debate relates to the effectiveness of denationalization, especially from an international perspective. First of all, it is not clear whether denationalization policies effectively deter future terrorists. Individuals ready to commit terror attacks are usually beyond worrying about the consequences of their acts.
Denationalization might even be counter effective as terrorists are easier to control from within the state than in a foreign country. (Paskalev, 2015:15) Some scholars argue that denationalization is primarily used as a strategic move to win votes rather than as a tool to prevent terror attacks (Spiro 2015:8; Bauböck 2015:27).
13 Furthermore, several scholars suggest that denationalization is not sustainable from an international perspective as it only can remain effective if it is restricted to some states: “One state’s authority to deem the bad citizen a non-citizen presupposes another state lacking that same authority” (Macklin 2015a:6). If the relationship would be mutual where both countries had equal ability to denationalize, it would become a race to strip citizenship first in order to avoid the creation of statelessness. Furthermore, international cooperation is often seen as an important tool to counter terrorism and denationalization policies clearly puts the authority back in the state with a main concern of protecting its own people and borders. Macklin also points out that many terrorist are “homegrown” and products of one specific society, and that states should not be able to shed their responsibility by leaving dangerous individuals in the hands of another state. (Bauböck 2015:28-29; Macklin 2015b:54)
On the other hand, there are scholars who believe that effectiveness is a secondary matter, that whether denationalization is effective or not is not the only reason to punish wrongdoers. If more conventional measures were to be found that better manage to deter terror attacks, these should be used instead. However, in lack of other measures the state needs to do what it can to protect its citizens and use all tools at its disposal. (Schuck 2015:10; Joppke 2015:12)
2.4 A changing citizenship?
The fact that scholars take different sides in this debate, some positive and some negative to denationalization, is party explained by their underlining view of citizenship. If citizenship is viewed as a contract between the state and its citizens, it is conceivable that this contract can be broken. Serious crimes or crimes against the fundamental principles of citizenship would break the contract and citizenship would be lost. To consider citizenship as a privilege is similar, where certain acts might make you lose your membership of the privileged group and the privileges that membership entails, such as protection and basic rights. Another conception is to view citizenship as a basic right, a right that should be above the authority of the state guaranteeing all other rights. This view is inspired by Hanna Arendt suggesting that without citizenship you don’t only lose your civil rights but also your human rights.
According to these scholars a state should never have the authority to remove a citizen’s citizenship. Scholars suggest that denationalization effectively moves citizenship from being
14 conceived as a right to increasingly becoming conceived as a privilege or contract. (Macklin 2015a:2-3)
As we have seen in the normative discussion a majority of scholars are worried about the consequences of denationalization. They are worried that the state is granted arbitrary powers to decide over citizens’ citizenship, that denationalization can render people stateless and create unequal societies and that it could hurt international relations and all of this for no apparent reason as denationalization has not been proved to deter terrorists or in any way prevent terror attacks. However, it is important to acknowledge that there are also scholars positive to denationalization, arguing that these concerns are small or possible to overcome.
Either way, the concerns with denationalization need to be addressed as several scholars, who are experts in citizenship studies, are worried about how denationalizaiton could end up changing citizenship.
All scholars agree that denationalization policies in the UK are arbitrary and that UK- legislation enables the creation of statelessness contrary to scholars’ recommendations.
Inequality and discrimination might also be created as only some citizens can be denationalized and all this could be in order to establish an anti-terrorism tool with no documented efficiency that might hurt international relations. There seems to be reasons to worry and further investigate what is happening with citizenship.
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3. Research Methodology and Material
In this chapter, the design and case selection will be presented. This is followed by the study’s methodology and material and their advantages and disadvantages. The section ends with presenting the operationalization of the study.
3.1 Design and case selection
This study is designed as a case study looking specifically at denationalization in the UK and the debates of three different legislative proposals which extended the Secretary of State’s powers to denationalize. The four main concerns with denationalization that were introduced in the normative debate provide the study’s theoretical framework looking at one concern at a time and how well they are represented in the political debates.
In most countries only naturalized citizens that threaten vital interests of the state can be denationalized. What sets the UK apart in an international perspective is its ability to both denationalize birthright citizens and to make naturalized citizens stateless in certain cases. In addition, the grounds for deprivation in the UK are widely defined as acts “conducive to the public good” while most other countries use wider grounds for deprivation, for example for acts “seriously prejudicial to the vital interests”. Consequently, the denationalization powers in the UK are the most extensive among all liberal and democratic states. (Gibney 2014:333- 334)
Furthermore, no criminal conviction is needed prior to denationalization in the UK which is required in several other countries. The Secretary of State can without any judicial involvement give a notice of deprivation, however the person concerned can appeal this decision in court. After a legislative change in 2004 citizenship is lost immediately when the notice of deprivation is given and not kept during the appeal process. The appeal process has been shown to be complicated as many individuals are denationalized while abroad and not allowed to reenter the country for the appeal process, forcing them to appeal from abroad (Anderson 2016:8).
16 It is difficult to find an exact number of denationalized individuals in the UK. Nevertheless, it is possible to find government information for the years between 2006 and 2014 where 27 people had been denationalized on the ground that it was conducive to the public good to do so. (Gower 2015:4). Most of the individuals denationalized since 2006 have lost their citizenship while abroad (Ross & Galey 2014). In other countries applying denationalization the measure is still very new and there are very few, if any, cases where a citizen has been deprived of citizenship. For example, in France, no one has yet been denationalized and in Australia it only happened once to a dual citizen fighting for the terror group IS/Daesh (Norman & Gribbin 2017).
The UK could be interpreted as a critical or most-likely case with its extensive powers to denationalize. A most-likely case is used were a certain theory or hypothesis have favorable conditions to hold or be true and if it does not hold it is unlikely that it would hold in cases with less favorable consequences, in short: “if I cannot make it here, I cannot make it anywhere”. (Levy 2008:12) The four concerns raised by scholars are likely to be especially big in the UK due to their extensive powers to denationalize citizens, and this should be reflected in the political debates with many concerns addressed. If the concerns with denationalization are not addressed in the UK, it is possible that they are not addressed in other countries with less powers to denationalize than the Secretary of State in the UK.
There are two general objections that may be raised, firstly that the problem is marginal as few citizens are directly affected by deprivation orders, secondly, that the UK is an outlier.
The problem is, according to several scholars, not marginal, but could change the status of citizenship itself. Secondly, the UK is somewhat of an outlier, with much stronger possibilities to denationalize than any other country. The results are therefore not aimed to generalize – the UK is considered an interesting case in itself as it was in the UK the revival of denationalization started and denationalization powers have steadily increased with each new legislative proposal.
Mathew J Gibney, one of the prevalent scholars in the research about denationalization, has also looked specifically at the UK. In his empirical work, he has investigated the history of denationalization policies in the UK and shown how denationalization powers in the UK have increased with every new legislative proposal, targeting a bigger part of the population as the grounds for deprivation continuously have been lowered. In addition, he has looked at the
17 consequences of denationalization from a liberal perspective. He concludes that it is difficult, if not impossible, to create a denationalization power that is in line with basic liberal principles. (See Gibney 2013a, 2013b, 2014). A few scholars have also looked at denationalization in the UK from a legal perspective. Sandra Mantu has written several pieces on denationalization and examined law and practice of citizenship deprivation in the UK. She shows how nationality legislation has been used to reach immigration and national security goals and underlines that citizenship is no longer a secure legal status as it is turning into a privilege. Furthermore, Mantu emphasizes how denationalization has sparked two developments: that the state is reasserting its sovereignty in the field of citizenship and how deprivation introduces a new model of worthy citizens. (See Mantu 2014, 2015a, 2015b)
This study will contribute to the field of empirical research, looking at whether MPs consider the potential problems with denationalization.
3.2 Qualitative content analysis & descriptive idea analysis
In order to answer my research question of how MPs in the UK justify denationalization a qualitative content analysis, and more specifically a descriptive idea analysis, is conducted.
A content analysis is normally used to quantify something, a notion, an argument or passage of interest in the text. There is also a wider definition of quantitative analysis that includes a qualitative approach and all types of analysis that systematically describes textual content. In qualitative content analysis, the aim is not to measure or count, although there might be small elements of that as well. Focus is instead on interpreting text, a work that requires more judgement and consideration of the context than a pure quantitative approach. (Boreaus &
Bergström 2012:50) A qualitative content analysis is based on fewer observations and suitable for smaller material and allows a more thorough analysis. A quantitative approach increases the reliability of the results as it can easily be replicated if the classifications used are made clear. On the other hand, a qualitative approach increases the validity of the results as it takes the context into account and minimizes the risk of misinterpretations. (Beckman 2005:44-47)
A descriptive idea analysis could be described as a type of content analysis that aims to systematically sort a material in a way that is not possible by simply reading or looking at the
18 material. Through an analytical reading, it is possible to say something about a text that is not evident from the start. A descriptive idea analysis is sometimes used to provide a new interpretation of a material contrary to other scholar’s findings. (Beckman 2005:49-50) As denationalization is a rather new measure there are not many previous scholars to challenge, instead this thesis looks at whether the concerns raised in the theoretical debate also were present in the empirical debates in the UK parliament. The four main concerns arbitrariness, statelessness, inequality and ineffectiveness are used as dimensions, as “lenses” while reading the text to see if MPs address the potential problems with denationalization. This enables comparisons to see whether the view of denationalization and its consequences addressed by scholars and MPs correspond or not. (Beckman 2005:52-55)
3.2.1 Disadvantages & advantages
Content analysis combined with descriptive idea analysis were chosen as the methods suited both the thesis purpose and material. The focus is on the explicit text of the debates, not latent or hidden meanings. The material used is rather large, however the material still permitted a qualitative approach, including more information about each observation. A qualitative approach, paying attention to both context and process, was necessary in order to make sure that the parliamentarians’ arguments were not misinterpreted and to see whether there were any processual or contextual constraints in the debates impeding them from addressing certain issues. That a concern is addressed multiple times by several MPs is also of interest, showing that several MPs addressed these consequences prior to taking a decision. However, these numbers will not tell us much without knowledge of what aspects of the issues they addressed and processual and contextual constraints and opportunities.
In a qualitative approach the material is interpreted which could lead to bias and compromise the study’s reliability. To minimize these problems the categories and questions asked when reading the text were clearly defined before the material was read. The fact the material is interpreted and take the context and process into account increases the validity of the study as misinterpretations can be avoided. As the focus is on what is explicitly written in the debate it is possible that latent or hidden meanings are missed. (Boreaus & Bergström 2012:80-81) This is not considered to be a big problem as politicians have an interest in expressing themselves clearly and explicitly as they represent and seek support from voters.
19 3.3 Operationalization
In order to answer the overarching research question – How do parliamentarians in the United Kingdom justify denationalization and its consequences? – three subordinate questions are used, as was presented earlier. Below is a discussion of how these were operationalized.
The first question – In what context are decisions on extending the United Kingdom’s denationalization powers taken? – is in turn measured by a question: What events and examples, national and international are referenced to in the debates and when the government presented the Bills? When the government proposes a new bill, they have to explain why certain changes are necessary. This gives a picture of how the government perceives the situation at the time and important information about the context. In addition, events and examples used, both by the government and other parties in Parliament further helps in order to understand the context and whether certain events or cases influenced the topics addressed in the debates.
To answer the second question – What did the process look like when extending denationalization powers in the United Kingdom? – the focus is on MPs own experience of the debates. Whether they considered that they had enough time for preparation and discussion, if all the information was available and if experts could be consulted. By looking at MPs subjective experience, only procedural opportunities and constraints addressed in the debates can be considered. It is assumed that if no procedural concerns were addressed the MPs were generally content. Still, it is possible that there were legal concerns with the process of the debates which will not be considered. However, as long as MPs do not address processual constraints or problems it is assumed that they had a chance to fully participate in the debates. MPs certainly have own interests in a fair and just process. It is thereby unlikely that big procedural problems will go unnoticed.
The third and most central question – To what extent do Members of Parliament in the United Kingdom address the scholars’ four main concerns with denationalization? – is operationalized by using the four main concerns addressed by scholars. Arbitrariness, statelessness, equality and effectiveness are used as dimensions to see whether all the different aspects of these concerns were addressed. Below is an explanation of how the arguments were classified.
20 3.3.1 Classifications
Arguments that negatively referred to an increase of state power were classified as arbitrariness. For example, statements suggesting denationalization gave a subjective power to the Secretary of State, that citizenship is a right that should be above the authority of the government, that denationalization could lead to an abuse of power for current and future decision-makers or that it could have a spill-over effect and threaten the rule of law.
To consider that statelessness was addressed references to an actual increase of legally statelessness people (de jure) or to people experiencing similar consequences to being stateless (de facto) was needed. For example, that statelessness in not a proportionate punishment, that statelessness puts people in very difficult and precarious situations and references to the “right to have rights”.
An argument was classified in the equality category if there were references to different treatment of citizens. For example, arguments related to discrimination based on background or number of citizenships or how denationalization creates second-class citizens and fairness- based arguments suggesting that some citizen’s citizenship is more secure than others.
Effectiveness was considered addressed if MPs addressed that denationalization is ineffective or could in some way hurt international relations. References to other ways of handling terrorists or preventing terror attacks, international obligations, reactions of other states or the
“race to strip citizenship first” dilemma occurring when several countries implement denationalization were included.
In order for these issues to be considered fully addressed all aspects of the concerns had to be included. For example, statelessness might be addressed, but not de facto statelessness (being expelled to a country that does not guarantee civil or human rights). In addition, the concerns need to be addressed by both Houses as they both have an important role in the legislative process. That a concern is addressed rarely or frequently is also taken into account as it is more likely that an issue is fully addressed when it is raised and discussed frequently.
It should be noted that some of these concerns will be more prevalent certain years depending on what new provisions the bill introduces. This is likely to be clear when discussing
21 statelessness which certainly will be more discussed in the 2014 debates when de jure statelessness was introduced. However, all concerns are important and raise issues each year, and should be addressed for each legislative Bill.
It is assumed that politicians know about the potential consequences of denationalization and that they will actively object in the debates if they do not agree with the government’s proposals. A majority of the research on denationalization is published after its revival in the UK, however being legislators it is a big part of the MPs job to think one step further and consider the consequences of the legislative bills before them. In addition, MPs get expert advice if requested and they have staff working for them to, among other things, provide research and information in order for the MP to make an informed decision. (UK Parliament, Working for an MP)
3.4 Material
The material is both theoretical and empirical. As for the theoretical material, The European Union Democracy Observatory on Citizenship (EUDO) have published a series of working papers to encourage academic research in new fields of citizenship. One specific paper is about denationalization, “The Return of Banishment: Do the New Denationalization Policies Weaken Citizenship?” (2015). This working paper gives a good picture of what is at stake in the debate, addressing different perspectives with contributions from known scholars in the field of citizenship coming from different Western universities. The EUDO website is also useful to find information about different countries citizenship legislation and on what grounds citizenship can be acquired and lost. (EUDO n.d.)
My main empirical material is three specific legislative bills - The Nationality, Immigration and Asylum Act of 2002, Immigration, Asylum and Nationality Act of 2006 and the Immigration Act of 2014. These three are chosen as they brought major changes to the use and application of denationalization in the UK. Besides these three legislative changes a smaller change related to the appeal process of denationalization was introduced in the Asylum and Immigration Act of 2004. As of this legislative change individuals that became denationalized could no longer keep their citizenship during the appeal process. Those denationalized while abroad could thereby no longer return to the UK nor access consular assistance. (Asylum and
22 Immigration Act of 2004 c.68) Due to the fact that it only discussed the appeal process and did not change any other provisions in regards to denationalization this Act was excluded.
There were several debates in both Houses for all three legislative Bills, about 25 debates per Bill, but all these debates did not address denationalization. All official debates were included, both debates open to the entire House and debates in Committee discussing the bills in more detail. The debates in the UK Parliament are documented word by word and only corrected in case of big mistakes and repetitions (UK Parliament, Hansard), which gives me the full content of the debates.
In addition, if available government white papers and press conferences where the legislative proposals were introduced were used to get a picture of the context of the debates and government motives. Citizenship scholars looking specifically at UK have also been used, especially Gibney and Mantu, to better understand the context of the debates.
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4. Empirical investigation and results
In the following section the results are presented one bill at a time, starting with 2002. The sections are organized according to the three research questions, fist discussing context, followed by procedure and lastly the arguments related to the four main concerns addressed by scholars: arbitrariness, statelessness, equality and effectiveness.
4.1 Revival of denationalization – The Nationality, Immigration and Asylum Act of 2002
The Nationality, Immigration and Asylum Act of 2002 was introduced by Tony Blair’s Labour Government. This was the first time that deprivation powers were extended in modern nationality legislation in the UK. (Mantu 2015b:8)
Before the 2002 Act was introduced a citizen could be denationalized as a result of specific acts, such as disloyalty or disaffect to Her Majesty, communication or trade with the enemy, or if a person was sentenced to prison for more than a year within five years from naturalization. (British Nationality Act 1981 c.40) These rather specific grounds were changed in 2002 to a wider formulation: “if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory”.
This new act also gave the government the power to denationalize even British born citizens, as long no one would be rendered stateless. In addition, the 2002 act introduced procedural safeguards, a deprivation order could now be appealed in court. (The Nationality, Immigration and Asylum Act of 2002 c.40)
4.1.1 Context
When considering the context of this Bill two important events should be named: the September terror attacks in New York and national race riots in Northern England.
The Bill was announced only three months after the 9/11 terror attacks which many scholars believe influenced the revival and reuse of denationalization. (see for example Macklin
24 2015a:1; Sawyer & Wray 2014:15; Gibney 2014:330; Mantu 2015b:7) The terror attacks created anxiety over terrorism in the UK and the UK had decided to support the US in their
“war on terror” (Mantu 2015b:7). The 9/11 terror attacks were mentioned in the Government’s white paper Secure Borders, Safe Haven where the Bill was introduced, but not directly in relation to the extended deprivation powers (Home Office 2002:82). Nevertheless, it is likely that the increasing threat of terrorism affected the Bill and the proposals that were presented.
Furthermore, there was anxiety on a national level with race riots in Northern England. In Bradford tensions between British-Asian communities and the white majority had turned into violent riots. Similar riots emerged in other British cities such as Oldham and Burnley. (BBC 2001) The riots were addressed by The Home Minister, David Blunkett, in the white paper:
Summer’s disturbances in Bradford, Oldham and Burnley painted a picture of fractured and divided communities, lacking a sense of common values or shared civic identity to unite around. The reports signaled the need for us to foster and renew the social fabric of our communities, and rebuild a sense of common citizenship, which embraces the different and diverse experiences of today’s Britain. (Home Office, 2002:10)
Blunkett called for the need of better integration and a clearer set of British values to create a sense of community and a better cohesion in society. He stated that the Government wanted to initiate “an open and constructive debate about citizenship, civic identity and shared values”
and that this debate is necessary to bring people of different cultures, race and religion together. He wanted immigrants to be better introduced to and engaged with the “fundaments of our democracy and society” (Home Office 2002:10-11). In this attempt to redefine
“Britishness” the official discourse linked citizenship to terrorism for the first time although terrorism already existed (Mantu 2015b:7).
The Government wrote that in order to attach importance to British citizenship it is important to be able to deprive a person of their citizenship. Lord Filkin, Under-Secretary of State, also made a reference to the need of denationalization powers “in these times”, most likely referencing to the increased threat of terror attacks or increased national tensions (HL 2002- 10-09, col:283).
25 Besides new provisions regarding denationalization other changes to citizenship were introduced in the Bill. For example, citizenship tests in language and history, an updated oath of allegiance, introduction of citizenship ceremonies to celebrate the acquisition of citizenship and efforts to speed up the process of obtaining citizenship. (Home Office 2002:11)
4.1.2 Process
The Bill’s process through Parliament was critiqued by all bigger opposition parties, the Conservatives, the Liberal Democrats and the Scottish National Party. Some of the critique directly concerned specific parts of the Bill where government amendments were tabled very late, especially in the House of Commons. (HC 2002-06-11, col:730-733) The critique did not specifically concern the clause on deprivation of citizenship, but late amendments in other parts of the Bill could have affected chances of proper scrutiny of the Bill overall.
In a response to the critique the Government agreed to discuss the Bill one extra day in Committee in order to make sure all MPs would have their concerns heard and considered.
(Blunkett HC 2002-06-11, col:728) Yet, several MPs in the House of Commons argued that this was not enough and proposed an amendment in order to yet again return to Committee for further discussion. The following quote gives a picture of what the Liberal Democrats thought about the process:
At the conclusion of the Committee stage, 17 clauses, three schedules, 13 new clauses and 53 amendments had not been debated. More importantly, and hence the reason for the amendment to return the Bill to Committee, the Order Paper contains 160 non-Government amendments, 35 Government amendments and two Government new clauses for consideration today and 49 Government amendments, six Government new clauses and two Government new schedules for consideration tomorrow. (Hughes HC 2002-06-11, col:731)
As is clear from the quote the extra Committee debate was not considered sufficient. Those behind the amendment were afraid that the lack of time would not let them do their job properly when considering “the lives and liberties of some of the most needy in the world”
(Hughes HC 2002-06-11, col:733). The vote on the amendment turned out negative and the Bill did not return to Committee for further discussion (HC 2002-06-11, col:738).
26 After passing through the House of Commons the Bill was considered in the House of Lords.
This process was not critiqued, but some MPs took the chance to criticize the process in the House of Commons. A Liberal Democrat suggested that complicated issues such as questions relating to human rights should be dealt with differently in the future, with more time for scrutiny. (Lord Lester of Herne Hill, HL 2002-06-24, col:1175).
4.1.3 Concerns addressed
Arbitrariness
The by far most discussed concern in the 2002 debates was arbitrariness. All opposition parties, and even some MPs from Labour, were concerned about the increase of the state’s discretionary power that this Bill entailed and they continuously described denationalization as a draconian power.
The Liberal Democrats raised three main concerns. First of all, they suggested that the threshold in the grounds of deprivation was too low and that the “seriously prejudicial” test was poor as it included many types of situations and cases. Secondly, they disliked that the provision was retrospective and could apply to acts committed prior to the acquisition of citizenship. Thirdly, they suggested that the powers were too general applying to everyone, even those who are British by birth. The party argued that the deprivation clause was the
“most dangerous clause that we have considered so far” and hoped that the Government would consider to change the Bill not to “take away the rights of people to citizenship”.
(Hughes HC 2002-04-30, col:51-52)
In order to circumscribe the powers of the Secretary of State several amendments were tabled.
For example, MPs attempted to change the grounds for deprivation from “vital interests of the UK” to “national security” making it more robust, but this amendment was rejected (HC 2002-04-30, col:61-62). The opposition managed to pass one amendment that was accepted by the Government. It was no longer sufficient that the Secretary of State “thinks that” an individual had done something seriously prejudicial to the vital interests of the UK, the amendment changed “thinks that” to “is satisfied”. This resulted in the following formulation:
“The Secretary of State may by order deprive a person of citizenship status if the Secretary of
27 State is satisfied that the person has done something seriously prejudicial to the vital interests of the United Kingdom, or a British overseas territory.” (HC 2002-04-30, col:50)
Another common argument was that there are less rights-infringing ways of punishing citizens within the existing criminal law system. The Conservative Humfrey Malins argued that this was preferable instead of denationalization:
Can anybody think of something that a person might do that would be seriously prejudicial to our interests but is not a crime? If they can, I will listen to their argument. However, if the act constitutes a crime, why should the person not be charged with that crime and punished for it? Goodness knows people do some heinous things in life. They are charged and punished, but their citizenship remains intact. (Malins HC 2002-04-30, col:52)
Malins questioned what acts could be contrary to the UK interests, but not constitute a crime.
He argued that people should be punished and charged for their crimes, but not lose their citizenship. Responding to the critique the Government assured the MPs that they consider deprivation to be a serious step and that deprivation powers would be used only when the Secretary of State is satisfied that a person holding citizenship is not conducive to the public good2. They reminded the MPs that deprivation powers had only been used ten times since 1948 and only once during the last 30 years and emphasized that the Government did not plan to use the powers swiftly. (Eagle HC 2002-04-30, col:53) This did not manage to convince the opposition, not even all party members, as they argued that even if denationalization is used restrictively today there is no guarantee that future decision makers will follow their example (Gerrard HC 2002-04-30, col:58).
Furthermore, a number of MPs were concerned that this punishment is decided trough an executive order freed from legal control rather than a court decision. Denationalization decisions were described as subjective, and MPs warned that they diminish the “positive value and worth of British citizenship” if citizenship is removed easily. (HL 2002-06-24 col:1123) In addition, MPs asked the Government to clarify that there would be a full right of appeal and that decisions would be transparent, not hidden in secrecy. In general, several MPs found it unconvincing that denationalization powers were necessary when other tools exist.
(HL 2002-07-08, col:497) One MP stated that he “cannot recall any other occasion where the
2 It is interesting to note that the Government is already using the formulation “conducive to the public good”
which will be the grounds for deprivation used in the coming legislative change in 2006.
28 Secretary of State had been given power with such small limitations” (Lord Rees-Mogg HL 2002-10-09, col:278) pointing to the lack of judicial overview of the powers to deprive citizenship.
In order to calm the MPs Lord Filkin, Parliamentary Under-Secretary, explained that there are occasions where a crime hasn’t been committed, but there is still evidence of seriously prejudicial behavior and therefore deprivation remains an important tool to “mark abhorrence” of certain behaviors and to protect the public by making sure the individual cannot do something similar again. He also underlined that the Secretary of State must give written reasons for an intended deprivation and that it would be possible to appeal a decision made by the Secretary of State. (HL 2002-10-09, col:279-283)
Statelessness
The risk of creating statelessness with an increased use of denationalization was barely addressed in the debates. In general, it was clear that all parties wanted to avoid the creation of statelessness. The Government repeatedly stated that the new Bill would not result in statelessness (HL 2002-10-09 col:1170).
The Liberal Democrats showed most concern and wanted to be reassured that the new Bill would not allow or in any way increase the creation of statelessness. With support from the Conservatives they asked the Government about their definition of statelessness and how it would be interpreted. Simon Hughes, a Liberal Democrat and one of the main opponents of the Bill, raised the issue of people who had lost their original citizenship when moving to Britain and how they might be rendered stateless if they are denationalized (HC 2002-04-30, col:12, 51).
De facto statelessness was barely addressed in the debates. Yet, a small number of MPs emphasized the gravity of denationalization as a punishment and the situation it put people in.
How individuals could be unable to acquire a new passport for political reasons making their second nationality “little more than an empty shell” (HL 2002-06-24, col:1123). One example is the following statement made by Lord Kingsland:
I can think of no worse punishment, apart from the death penalty, than being expelled from one's country of birth with all its associations of home and family, institutions, landscape and
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other things. Have the Government considered whether that penalty on those born in the United Kingdom falls within Article 3 of the European Convention on Human Rights? (HL 2002-07-08, col:499)
Lord Kingsland suggested that denationalization was almost comparable to a death penalty and against human rights, because it left a person stranded in another country without everything associated with their previous life.
Equality
The fact that denationalization treats citizens differently was raised quite frequently in the debates in the House of Lords, however not at all in the House of Commons. After the risk of arbitrariness this was one of the most addressed concerns in the 2002 debates.
The Government motivated the Bill in terms of equality suggesting that the current legislation unequally targeted naturalized citizens. By extending denationalization policies to all citizens, even birthright citizens, they argued that all citizens were treated more equally in comparison to previous legislation. (Eagle HC 2002-04-30, col:53) Citizenship was described as an important privilege that should be implemented without discrimination of how it had been acquired, making sure that naturalized citizens did not have a second-class status compared to birthright citizens (Filkin HL 2002-10-09, col:283).
This reasoning was met by critique by the opposition in the House of Lords. The opposition were concerned that the Government was not eliminating inequalities, but instead creating new inequalities. Anyone could now be denationalized as long as the person was not rendered stateless which effectively targeted all dual nationals. The following quote is an example of the critique aimed at the Government’s proposal:
Many people have dual nationality as a consequence of a set of circumstances over which they had no control. I know that one of the Government's arguments is that it is wrong to make a distinction between birth and naturalisation. But these situations seem so distinct that I wonder why the Government believe that is a cause for concern. In any event, surely the Government are introducing another form of discrimination between those born without another nationality and those born with dual nationality. (Lord Kingsland HL Committee 2002-07-08, col:500)
30 The quote above stresses how individuals often do not chose to have one or multiple citizenships, but inherit the citizenship of their parents. Arguing that the government is not reducing discrimination, just aiming it at a new group.
The Liberal Democrats addressed this issue several times and argued that the Government is secretly trying to extend their power to deprive citizens of citizenship in a guise of equality and non-discrimination (HL 2002-07-08, col:505). The conservatives agreed with the Liberal Democrats although they were not as present in the debate on equality.
In a reply, the Government stated that they have no figures suggesting that they are targeting a certain group. They argued that all citizens were treated equally, but in order to follow international obligations they cannot make anyone stateless. (Filkin HL 2002-06-24, col:1177-1178) Furthermore, they suggested that only because the Government could not enforce deprivation against everyone it shouldn’t mean that they should not use it at all, that they had to take action against those that they could take action against. (Filkin HL 2002-10- 09, col:282)
Effectiveness
References to the effectiveness of denationalization and consequences on an international level were very few, almost non-existent.
Yet, the Government motivated the Bill as a way of putting UK legislation in line with the 1997 European Convention of Nationality. The convention allows deprivation of citizenship using the same grounds as those proposed by the Government, for acts “seriously prejudicial to the vital interests” of the state. The Labour Government suggested that it was suitable to put UK legislation in line with the convention as they planned to sign the convention if the Bill was enacted. (Eagle HC 2002-04-30, col:55) To further justify the Bill the Government emphasized that to deprive citizens of citizenship was not a new measure and that it had been used by several other countries (Filkin HL 2002-10-09, col:279)
The opposition barely addressed international consequences. The Liberal Democrats quickly stated that it is hard to know if another state would accept an individual that had been denationalized from the UK and that exporting a dangerous citizen adds to the instability of the world. Furthermore, a few MPs found it unconvincing that denationalization would help
