This is a guest post by talpa australis
Three and a half years ago, the Independent newspaper carried a story about a care worker from North London who said he was being harassed by MI5. He had complained to the police and the Security Service and his MP, Frank Dobson. His solicitor wrote a letter of protest to the judiciary.
Mahdi Hashi was then nineteen years old, a care worker in North London. He was stopped by two men at Gatwick on his way to visit his grandmother in Somalia. He was “advised” by one of them, who claimed to be working for MI5, not to get on the flight and told that what happened to him if he left the country would not be their responsibility. He went anyway. On arrival at Djibouti, he was stopped at passport control, detained for 16 hours and sent back to the UK, where “Richard” met him with breakfast and told him he was a terrorism suspect – a situation he could change by agreeing to work for MI5 and so “proving his innocence”. Mr Hashi declined to meet “Richard” again, telling him: “this is blackmail”.
Similar events involving MI5 were reported a year later, this time involving young British men visiting Tanzania on holiday, and another visiting Kenya.
Of course, newspaper reports can be inaccurate or the stories may have been exaggerated in the telling, and sometimes there are parts of a story that apparent victims don’t tell. Perhaps we would prefer the exaggeration option, since Mr Hashi made so much protest to a variety of authorities. It is better to think the idea of a British person being threatened with who-knows-what if he doesn’t spy for his country is a bit far-fetched.
This week, the Daily Mail carried an update on Mr Hashi’s tussle with the British establishment. Now 23, Mr Hashi recently went on a further trip to Somalia and disappeared. His parents were told by another man that the two of them had been detained at a US camp in Djibouti, where Mr Hashi was being “mistreated” by US officials. And, according to the Daily Mail, the Home Secretary has also deprived Mr Hashi of his British citizenship.
Mr Hashi had not always been British. He has been in the UK for 18 years, since his family arrived from Somalia when he was five – rather like Mo Farah. Insofar as people know that a person can be deprived of their British citizenship, they often assume that this applies only to the foreign-born. The legislation however also applies equally to those born British, although in practice it will affect British people of foreign heritage much more, because it has a different limitation – that it cannot be used to leave a person stateless, unless their citizenship was obtained by fraud. So a person being deprived will usually have to have another nationality as well as British citizenship.
Deprivation of British nationality has been possible since the first legislation in 1914, on the grounds of disloyalty, but until 2003, only the revocation of a grant of naturalisation was possible. Those born British could not be deprived. Public disquiet at the change in 2002 was drowned out by the political and media context – the legislation was aimed at Abu Hamza. The prohibition on leaving a person stateless however meant that that did not work – Abu Hamza was naturalised as the spouse of a British citizen, and had thus lost his previous, Egyptian, citizenship. The Abu Hamza legal saga is fascinating, (though too complex to pursue properly here)but his extradition to the US earlier this month may be a final episode.
Perhaps more surprising was the unconcern with which the current rule was introduced in 2006, even though it was passed in the aftermath of the London bombings in July 2005. The current law says that: “The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.” This is close to arbitrary deprivation and is the severest law in Europe, where deprivation of citizenship has historically had a deservedly bad press. The only limitation is that a person cannot be left stateless, though even that is not absolute.
The original proposal was that the behaviour of the person concerned would be judged against a list of “unacceptable behaviours”, including “justifying terrorism”. A Catholic lawyer of my acquaintance suggested this might outlaw school bonfire parties. Lord Parekh revealed that he had brought suspicion on himself for a philosophical discussion of imaginary pointless arguments between Mahatma Gandhi and Osama bin Laden. The “unacceptable behaviours” list sank. The Joint Committee on Human Rights thought it had “insufficient guarantees against arbitrariness”. And then the government had another battle with the courts.
British citizens at Guantanamo were returned to the UK. An Australian inmate, David Hicks, tried to register as British on the basis of his mother’s British citizenship, and the Home Secretary wanted to refuse to register him, or then immediately deprive him for “seriously prejudicial” acts, the current face of disloyalty. The Court of Appeal said he would have had no chance to be a disloyal citizen. The Special Immigration Appeals Authority, which hears cases where the government refuses to explain its case, citing national security, decided that human rights applied and there had to be “fairness”.
There were ten deprivations between 1949 and 1973. After 1973, there were none until the attempt against Abu Hamza in 2003. When Damian Green was asked in March 2011 for figures for deprivation orders in the last five years, he gave a figure of nine (one each in 2006 and 2007, none in 2008, two in 2009 and five in 2010).
The procedure for deprivation is the simple signing and service of a notice; no hearing is required. A husband sponsoring his wife’s admission to the UK was served with a notice when the wife’s documents appeared to show him as having been born Albanian rather than Kosovar. Assertions of statelessness are however a problem; it is unlikely the person can, in practice, be deported – if their other citizenship is disputable, they will have no passport to be deported on. Serving a notice of deprivation while the person is abroad however avoids the awkwardness of deportation and probably the practicality of any appeal. The Court of Appeal also recently confirmed there is no requirement that a person should be able to be present in person at his own appeal, and that European Union rules on citizenship do not affect the ways a state confers, withholds or revokes citizenship, since that would “touch the constitution; for they identify the constitution’s participants”.
In a sense, the surprise is no surprise. On 25th April 2006, the Times newspaper carried an article by Nick Blake, as he then was, a barrister practising in human rights. Its title was: “Why is there no song and dance about this Act?” He expressed concern about the impact on ethnic minorities of a process that could only be used against dual nationals – a process described by the US Judge Warren as “the total destruction of the individual’s status in organised society” and of, in Arendt’s phrase, “the right to have rights”. Recent correspondence on Harry’s Place suggests that there is support for this treatment of Islamic jihadists, and that the ability to question or appeal against the deprivation is an improper waste. Does that depend on there being no abuse of the power, and no mistakes? Or do we think that it could never happen to the wrong person? What do we think of Mr Hashi’s case? Could that never happen – here, or to us?
