Citizenship
acquired by birth is enduring, but naturalized
citizens can have citizenship removed for fraud
or misrepresentation. This is the case in
Canada. In the UK naturalized citizenship can
also be removed administratively from an
individual while he or she is outside the
country because it is deemed conducive to the
public good. The individual can then be
“excluded” from the UK. This sequence allows a
naturalised UK citizen to be exiled. In February
there was a European Court of Human Rights case
involving this UK law. In May there was a
judgment on a bundle of 8 lead cases about
Canadian citizenship law by the Canadian Federal
Court. These decisions raise concerns and
deserve some reflection around citizenship, its
removal and international rights.
The
UN
Covenant on Civil and Political Rights, CCPR,
which has been ratified by very many states,
promises to ensure CCPR rights in equality and
to ensure non-discrimination in general. A
central distinction between country-born and
naturalized citizens is the potential for exile
of naturalized citizens.
In
Europe,
the European Court of Human rights has
established that removal of citizenship must
have necessary procedural safeguards, including
access to courts to challenge removal, and the
seriousness of the consequences for the
individual must also be examined – in particular
the right to privacy, home and family life can
be at issue. In the Americas, where OAS member
states fall under the Inter-American human
rights system, there is a right to nationality
and the individual has a right to a simple
effective court remedy for acts of authority
limiting rights.
In
the
10 May 2017 case of Hassouna and 7 others,
citation 2017 FC 473, the (Canadian) Federal
Court found that removal of citizenship required
a fair trial: an oral hearing before a court or
tribunal when credibility is involved; a fair
opportunity to state the case and know the case
to be met; and an independent and impartial
decision maker. Sections of the then Citizenship
Act were declared inoperative on account of
their violation of Canadian
Bill of Rights s.2(e) that says no
federal law can remove a fair hearing for the
determination of a right. Shortly after the
decision, the Canadian Parliament approved
amendments to the Citizenship Act that ensure
individuals have access to the Federal Court
before their citizenships are removed. The
amendments also limit the grounds for removal of
citizenship to grounds of fraud and
misrepresentation. This means that issues like
accusations of criminality and terrorist
activity will be dealt with equally for all
citizens, naturalised or native born, as the
CCPR equality and non discrimination requires.
However,
the
judge in the Hassouna case failed to find that
removal of citizenship impaired the right to
security of the person protected by s.7 of
the Canadian
Charter of Rights and Freedoms. (Everyone
has
the right to life, liberty and security of the
person and the right not to be deprived thereof
except in accordance with the principles of
fundamental justice.)
This is surprising because the consequence of
citizenship removal in almost all the particular
8 cases involved a threat of some kind - such as
exile - that I would have thought impaired the
right to security of the person. The court
acknowledged that other “equitable grounds”
needed to be addressed but did not recognize
these as “rights”; for example there are family
and children’s rights in the treaties Canada has
ratified. The judgment referred questions to the
higher Federal Court of Appeal.
The
judgement
in the K2 case of the European Court of Human
Rights (K2
v the UK, Application no. 42387/13, 7
February 2017) was unfortunate because media
such as the
Guardian newspaper in the UK interpreted it as a
vindication of the controversial UK citizenship
law. UK law allows naturalized citizens to have
citizenship removed by the authorities while
they are absent from the country if it is
conducive to the public good. The authorities
can then “exclude” them from the UK –
essentially exiling a former citizen. The
European Court is concerned with violations of
European human rights rather than particular
laws. So a decision can hardly be said to
comment on a law, as UK newspapers assumed. The
Court found no violation of K2’s rights given
the particular facts of the case and the rights
considered.
K2
was
brought to the UK as a small child with his
refugee family from Sudan so he spent his
formative years in UK society. In the UK he had
had a criminal conviction and he had breached
his bond from that conviction by leaving the UK.
In the case before the European Court he
allegedly became involved in “terrorism-related
activities linked to Al-Shabaab” in
Somalia.
His wife at some point had left the UK, but
returned to have their child – presumably now a
UK citizen. The UK administratively removed K2’s
citizenship while he was outside the country and
then “excluded” him, preventing him from
returning to the UK. Although outside the
country, K2 was able to make submissions to the
High Court for judicial review and appealed the
review decision to the Court of Appeal. Since
his case involved secret government information,
he appealed to the Special Immigration Appeal
Tribunal, “SIAC.” This
body limits the ability to know the case against
one, and to respond to it, because only
specially cleared lawyers can see the secret
evidence itself. The European Court found that
it had been possible to access the UK courts
from overseas and that restrictions on family
life were not disproportionate since family
members could move and K2 had relatives in the
Sudan.
To me, the UK law is discriminatory on its face against naturalized citizens. If K2 had been a native born citizen, the UK would have had to bring charges against him before the courts. This law targets a class of citizens for different treatment simply because it is convenient and cheap for the authorities to do so. But the possibility of exile for one and not the other is a huge difference. The law gives the administrative decisions immediate effect before the citizen has had an opportunity to respond to the case against him or her. This can add to the discrimination by placing the obstacle of exile in the way of full and equal access to the courts. The European Court sailed over the unequal treatment before the law for naturalized citizens on the technicality that the matter had not been put to the UK courts. It would impair rights less if the citizenship removal took effect only after a court examination with all the safeguards normally available to citizens. Best is not to have exile at all for any citizens. In the facts of the case, the UK secret tribunal with its lawyers and their security clearance stated in submissions put before the European Court that some evidence against K2 could withstand the criminal justice burden of proof. This implies that a less discriminatory criminal justice alternative to removal of citizenship could have been theoretically possible.
K2 raised plausible concerns about the UK court
hearings with impaired ability to participate
before the UK courts but these issues were
dismissed with the European Court seemingly
deferring to the UK courts. Deferral is not good
enough for a body concerned about the ensuring
of rights. The Court sailed over restricted
ability to know and respond to the case against
him on account of his predicament in exile and
the secret evidence. There is a prima facie
problem of “equality of arms" here.
Standing
back,
it is hard to believe that someone who has been
raised in the UK from early childhood could be
exiled without adverse effects – that is without
rights impairment. He had refugee parents in the
UK. We presume he is now separated from them. It
is possible that his link to a refugee family
may make his own forced use of Sudanese
nationality risky. Then Sudan is likely to be
less attractive for a family with young children
than the UK. If his child is to benefit from the
UK education and K2 is in Sudan, family life
will be impaired. If his child is in Sudan, the
child’s right to education will be impaired
compared with other UK citizen children.
Details
of
K2’s alleged activity in Somalia are not known -
first because of the secrecy of the UK tribunal
and second because K2 did not - or could not -
put arguments against the public part of the UK
evidence before the UK courts. There may or may
not have been serious terrorism activities. The
alleged terrorism could be working with an
agency linked to Al-Shabaab that some believe is
humanitarian, or it may be a working with a
group involved in conflict with the Somali
government. But then over the years, citizens
have even gone to fight in foreign wars – Spain
in the 1930s and Bosnia in the 1990s.
Governments have their own views about foreign
wars and foreign agencies. I like to think of
human rights bodies as adding an international
perspective. What
stands
out for me is the possibility that K2 was
seriously disadvantaged in attempting to address
a UK court from outside the country. He
says he feared communications could be
intercepted by the Sudanese secret service. We
know he no longer had UK citizenship and the
possibility of fleeing to the UK. This indicates
a person whose right to security of the person
is impaired as well as the right to fair trial.
The UK courts then the European Court glossed
over the difficulties which most of us can only
imagine of trying to argue one’s national
security case from overseas and from countries
one is afraid of with access only to means such
as Skype.
Citizenship
removal
is a serious business. As a naturalized citizen,
I am relieved Canada reformed its Citizenship
Act so that citizenship will only be removed for
fraud or misrepresentation – and then only after
a court has examined the removal on a full range
of grounds. I am pleased that Canada treats
citizens equally with respect to what they do
whether criminal or terror or national security
related. As a British citizen I am ashamed of UK
law that is an affront to citizenship and to
equality before the law. It is shocking that the
European human rights system appears to have no
way of calling the UK law itself for what it is.