Immigration Bill

Lord Pannick Excerpts

Monday 12th May 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I am grateful to the Minister, Lord Taylor, to the Immigration Minister, James Brokenshire, and to the Bill team, who have devoted an enormous amount of time to this difficult issue and have held meetings with noble Lords who are concerned about it. For reasons that I will seek to explain, I think that the Government have made a very substantial concession on this issue in Amendment 18A, following the success of the amendment that I moved on Report.

Before briefly explaining the reasons for taking that view, perhaps I may mention that the original unacceptable clause—it was unacceptable—has been improved only because of a coalition, if that is not now an unacceptable political term, of the Opposition, led by the noble Baroness, Lady Smith of Basildon, who has worked tirelessly and skilfully on this issue throughout the passage of the Bill through this House, with considerable support from the Cross Benches and a very substantial Liberal Democrat rebellion on Report. I would add that there was support from the noble and learned Lord, Lord Howe of Aberavon, who also voted for the amendment. As a result of that voting decision, the new paragraph added in the House of Commons very substantially reduces the risk of leaving an individual stateless, although I recognise that such an event is still possible if the Secretary of State’s assessment, although reasonable, turns out to be inaccurate for whatever reason.

I have written to the Minister giving him notice of a number of assurances that I seek and which I consider are important to the understanding of the protections which are contained in the new paragraph. The first is this. I understand that the reasonableness of the Secretary of State’s conclusion that another nationality is open to the individual will be open to challenge in the Special Immigration Appeals Commission, and that SIAC will have the power to determine whether the Secretary of State does have reasonable grounds for her belief that the individual is able to become a national of another country. I understand from the Minister’s opening remarks that he agrees with that.

The second assurance I seek is this. Does the Minister agree that the material which is relevant to the Secretary of State’s decision on this point—that is, the ability to acquire another nationality—would be very unlikely to be secret? The material would be provided to the applicant’s lawyers so that it could be fully debated in any appeal to SIAC. I would be grateful if he could confirm that.

Thirdly, am I correct in my understanding that the new provision means that the Secretary of State has no power to take away British citizenship if the matter depends on a discretionary judgment by the foreign state? I think that the words in the new paragraph, “able to become”, must mean that the matter is in the hands of the individual, who needs only to apply to the foreign state, pay the relevant fee, provide the relevant documents and show their entitlement. The paragraph does not say “able to apply”. There is good reason to interpret this provision narrowly: namely, to prevent deprivation of British citizenship where it would leave people in limbo, with the risk of statelessness if the foreign country decides not to exercise any discretion in favour of the applicant. I therefore think that this provision means that at the time of deprivation of British citizenship, the individual must have a right to citizenship under the law of the foreign country. Does the Minister agree?

I seek reassurance on a fourth point. I think that the word “able”, which is the word in the new paragraph, must mean that there is no practical impediment to obtaining the foreign citizenship. For example, if there is reason to think that the foreign state will not apply its own laws, or will not do so within a reasonable time, the Secretary of State simply could not remove British citizenship. Does the Minister agree?

Fifthly, the word “able”, as well as general principles of public law must mean that the Secretary of State could not exercise this new power to take away British citizenship where, although the person is entitled to acquire the foreign citizenship, there is good reason for their being unwilling to do so. An obvious example is where the individual is a member of a group that is persecuted in the country concerned. Does the Minister agree that it would be wholly wrong and unlawful for the Secretary of State, if she accepts that those are the facts, nevertheless to go ahead and deprive that person of British citizenship?

Sixthly and finally, I think that the word “able” and the general requirement that the Minister must exercise her power in a reasonable manner must mean that the courts would apply a “reasonable link” test. By that, I mean that the clause could not be applied by reference to an individual’s rights to acquire citizenship in a country with which he or she has no close link other than an entitlement to nationality. For example, surely the Secretary of State could not rely on the entitlement of a Jewish man or woman to citizenship of the state of Israel under the law of return if the individual has no other link with the state of Israel; or rely on a wife’s right to acquire the citizenship of her husband in a country that she has never visited. I have not thought up these examples. I take them from the judgment of Lord Wilson for the Supreme Court in the Al-Jedda case last October, at paragraph 23. Therefore, the sixth question is: does the Minister agree in principle that there must be a “reasonable link” test implicit in this paragraph, so that the clause could not be used in circumstances that would, in the absence of a reasonable link, be wholly unreasonable?

On the basis of my understanding of this clause, this is a substantial and welcome concession by the Government. I hope that the Minister can reassure the House that my views are consistent with the Government’s interpretation, because it is what the Minister says that the courts may look at in future.

[Lord Lester of Herne Hill (LD)]

My Lords, I am a member of the Joint Committee on Human Rights and I should declare an interest because, like the noble Lord, Lord Pannick, I am a member of Blackstone Chambers, the same chambers as Professor Goodwin-Gill. As the House will understand, barristers are not like solicitors: we are not in a firm and are perfectly capable of taking completely different views from some of our colleagues. I have of course read Guy Goodwin-Gill’s opinion and his supplementary opinions but I do not think that they focus on the particular issues, practical and otherwise, with which we are concerned in this debate.

As the noble Lord, Lord Pannick, indicated, the Joint Committee on Human Rights welcomes the concession that has been made. I was one of the rebels—in the words of the noble Lord, Lord Pannick—and am personally satisfied, for the reasons that the noble Lord gave, that the concessions obtained in the other House ought to be acceptable and are in accordance both with international law and with the principles of our own constitutional system of government and law. However, I also agree with the noble Lord, Lord Pannick, that the questions that he has raised are the right ones, and my support for the Government’s position is dependent on satisfactory assurances being given. It is very important that they are given, because one of the advantages of the Pepper v Hart doctrine is that what is said by the Minister in reply will give guidance about how this important provision is to be interpreted.

I very much welcome the shift that has occurred and the fact that it has occurred because of pressure from across the whole House and not simply from one party. I do not agree with the position now being taken by Her Majesty’s Opposition—unless it is a probing position. If they were to press their difference of opinion to a vote, I would support the Government.

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I wind up by saying that those who threaten this country’s security put us all at risk. This Government will take all necessary steps to protect the public. This proposal will strengthen the Home Secretary’s powers to ensure that very dangerous individuals can be excluded from the privileges attached to citizenship if it is in the public interest to do so. The Government’s revised proposal—it is very much a revised proposal, based on listening to noble Lords’ contributions in this House—will enable the Home Secretary to deprive in a very limited number of cases. It will apply only to those who are naturalised, not those who are British by birth or those who register acquired citizenships under the provisions of the 1981 Act, as those provide for children who acquire British citizenship. It will apply only in very serious cases of people whose conduct—the noble and learned Lord, Lord Hope of Craighead, mentioned this—is seriously prejudicial to the vital interests of the United Kingdom, and only when the Home Secretary has reasonable grounds to believe that under the laws of a country or territory an individual is able to become a national of that country or territory. This is not about arbitrarily depriving people of their citizenship. It is a targeted policy to be used sparingly against very dangerous individuals who have brought the action upon themselves by terrorist-related acts. This amendment aligns us more closely with those international commitments as set out in the UN Convention on the Reduction of Statelessness 1961 and the declaration that the UK made in ratifying that convention in 1966. I hope that noble Lords will approve the Commons amendments.

[Lord Pannick]

If I understand him correctly, the Minister is saying that the application of this clause will depend upon the particular facts of the particular case. Can I ask him whether, among the relevant facts that the Secretary of State will take into account in deciding whether to apply this clause, and how it should apply, she will consider whether the individual has any link with the country concerned other than the ability to apply for nationality, and whether the relevant facts will also include whether the individual has a good reason for not wanting to apply for nationality in that country—for example, because of persecution?

[Lord Taylor of Holbeach]

I certainly can confirm to the noble Lord that one of the factors that has to be borne in mind by a Home Secretary considering these matters is the question of possible persecution. I assure the noble Lord on that in relation to the specific case that he mentioned and on the relevance of all factors that may impinge on a decision, which would include the ability of the person to acquire nationality in another country. They will be considered fully by the Home Secretary in all respects. The noble Lord asked about whether the person had an association and so on would be considered. I am sure that these are the sorts of things that the Home Secretary will have to consider in considering whether to exercise the powers in this clause. I am grateful to the noble Lord. He has been a great encouragement in the initial meetings that we had when we discussed these issues. Incidentally, the House should know that we are very much at the position that was suggested by a number of noble Lords right at the beginning; I am pleased that I have been able to satisfy some of the learned opinion that has been available to us here in the House.