Should British nationals suspected of terrorist offences or other serious international crimes be stripped of their citizenship? The British government thinks so. Over the past ten years, UK governments have passed legislation that makes it easier to strip citizenship from UK dual nationals when the home secretary deems their citizenship to be “not conducive to the public good”.
Now things have taken a more radical turn. In an amendment just passed by parliament, the government intends to extend denaturalisation powers to naturalised citizens even if it would make them stateless. This is no idle threat. No fewer than 37 UK nationals have been stripped of citizenship since the Conservative government came to power in September 2010, a figure that dwarfs the handful of people who lost citizenship when Labour was in power.
The moral case for such powers is easy to summarise. At first glance, it hardly seems right that an individual who threatens to destroy or undermine a society’s basic institutions should continue to enjoy citizenship of that society. If we presume —- as “contractualist” theories of the state would have it —- that the state is analogous to civil society associations, withdrawal of membership seems particularly appropriate. Virtually all organisations, from golf clubs to churches, have a recognised right to kick out members who set themselves at odds with the key principles of the association in question. We have a rich vocabulary to capture such procedures: associations “expel”, “excommunicate”, or “strike off the register” members who threaten their continued existence or basic norms.
The problem is that the state is not like other organisations, because individuals have no choice but to live under the authority and power of a state. If they are deprived of citizenship and made stateless, they continue to be subject to state power but without the basic protections against it offered by citizenship, including security of residence (protection from deportation), political rights, and a host of entitlements and privileges (including access to education and employment) often reserved solely for citizens.
It was for this reason that, in 1954, the US Supreme Court struck down a law which allowed the American government to take away citizenship as a punishment. Judging denaturalisation to be cruel and unusual, the court argued that “the punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself… [He] has lost the very right to have rights].”
Another concern is that laws to strip citizenship often apply only to some citizens. In the UK, for example, only naturalised citizens could lose their citizenship before 2002; after that, only dual nationals could (because only they would not become stateless). This means that under current British law, if a dual national and a single national commit the same offence (or more accurately, are suspected of committing the same offence), only the dual national could lose her citizenship. This kind of differential treatment undermines the fundamental concept of citizenship as a status with no gradations or rankings.
Even the British government accepted this idea when it introduced new denaturalisation legislation in 2002. Ministers argued, albeit somewhat disingenuously, that by making native-born British nationals (with a second citizenship) subject to the same denaturalisation powers as naturalised citizens, they were ensuring the equal treatment of naturalised Britons.
But even if denaturalisation powers were evenly applied to all, they would still be morally questionable. This is because it may be wrong to conceptualise citizenship simply as a “privilege” dependent on good behaviour. Long-term residents of a state (including those who entered illegally as children) have a moral right to be recognised as citizens based on the social ties and connections they have established in the course of their stay. As the political theorist Joseph Carens writes, there is “something deeply wrong in forcing people to leave a place where they have lived for a long time. Most people form their deepest human connections where they live. It becomes home.”
If social connections and ties constitute a reason for admitting people into citizenship, they are also a reason for not taking citizenship away once it has been acquired. We recognise this principle when we punish common criminals, who may well pose a threat to society, without withdrawing their citizenship.
An unjust policy
A different concern is that denaturalisation laws like the ones active in the UK are simply arbitrary, and for that reason unjust. Our legislation does not require that an individual be convicted of a crime in a court of law; indeed, one of the attractions of the current legislation for British governments is that it allows the home secretary to get rid of individuals without going through the difficult process of providing the evidence necessary for criminal conviction. To be sure, there is a statutory right of appeal, but given that most Britons are stripped of their citizenship when outside the UK, the chances for an effective appeal are minimal. Current laws define the grounds for deprivation so broadly that a successful appeal on the merits of a decision is highly unlikely.
If these moral concerns about stripping of citizenship fail to convince, there is one final and compelling reason why we should look askance at this power. Even if depriving dangerous individuals of their citizenship can be right in principle, can we really trust governments to use such a power prudently in practice? I think not.
Since the Conservative government came to power, they have denaturalised more people than any UK government since before World War II, and they now propose to extend powers so that even statelessness is not a bar. Initial government assurances that this power would be used sparingly and constrained by human rights considerations now seem risible. The key question supporters of denaturalisation need to ask is not whether it can in principle be right to strip citizenship (on that there may be room for debate), but whether it is wise to entrust denaturalisation to a government that has not hesitated to broaden the scope of its use