Immigration Bill

Baroness O'Loan Excerpts

Monday 7th April 2014 Lords Chamber

Whatever the position is on that, it is very unlikely that any possible advantage to national security could begin to compensate for the indisputable reputational damage that such a measure would occasion and the damage, therefore, that it would cause to our soft power. Our amendment makes a modest enough proposal: a Joint Committee before we take this drastic step. I urge your Lordships to accede to it.

[Baroness O'Loan (CB)]

My Lords, I spoke on the first day in Committee but was unable to attend on the day this clause was discussed, as I was recovering from surgery. Nevertheless, as a member of the Joint Committee on Human Rights, I have put my name to these amendments because it is profoundly important that the Bill which comes to be enacted following your Lordships’ deliberations takes into account the issues which arise. As the noble Baroness, Lady Lister, has said, this would most effectively be done through the amendment of the noble Lord, Lord Pannick.

The outstanding issues have been graphically illustrated by the noble Baroness, Lady Lister, but I will refer very briefly to them. The Government have so far declined to provide any indication of the number of people whose citizenship was taken away from them while they were abroad, on the basis that they are all cases in which the information on which the Secretary of State relied was information which should not be made public. The Government say that they are “unable” to put the numbers into the public domain,

“for reasons of national security and operational effectiveness”.

However, I do not believe that the release of this number, or of many other numbers, will in any way impact on national security.

The Government also indicated in their response that it is anticipated that the new power will usually, and possibly always, be exercised on the basis of closed material. As noble Lords will recall, this is not a procedure which has commended itself to many and is one which carries with it the risk of unfairness. The Joint Committee remains concerned that exercising the power,

“in relation to naturalised British citizens while they are abroad … carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.

The first two amendments to which I put my name, Amendments 56ZA and 56ZB, therefore seek to ensure United Kingdom compliance with our international obligations and to ensure the adequacy of the safeguards against arbitrariness in decision-making by requiring that, if it is to be done,

“the deprivation of citizenship is a necessary and proportionate response to such conduct”.

The Joint Committee on Human Rights does not accept the Government’s argument that the clause is compatible with its international obligations to countries that have admitted British citizens whose citizenship is subsequently removed.

The Government assert that out-of-country deprivations of citizenship do not engage the European Convention on Human Rights because it does not apply extraterritorially other than in exceptional circumstances. However, the case which they propose as an authority for this view is by no means an authority for the broad proposition that the ECHR is not engaged by an out-of-country deprivation of citizenship that leaves an individual stateless, as the case itself did not concern a deprivation which left the individuals concerned stateless. Moreover, there have been cases involving extraterritorial jurisdiction. I point your Lordships to the East African Asians case, in which the UK was found to have breached the right not to be subjected to “inhuman or degrading treatment” in Article 3 of the ECHR when it removed the right of abode in the UK from British citizens. Were Parliament to enact Clause 60 as drafted, it would be the first measure adopted by the UK in recent years that gave rise directly to an increase in the number of stateless people in the world.

Amendment 56ZC is about retrospectivity. The noble Baroness, Lady Lister, has already made the point that, under current law, a naturalised British citizen who does not also have another nationality is not liable to being deprived of their citizenship. Yet that is what the Government assert. The law says that they cannot be made stateless by deprivation of UK citizenship which has been conferred. The amendment seeks only to ensure that a person could not lose their citizenship as a consequence of actions which they were unaware could result in such loss, particularly since the information and intelligence which will lead to the decision-making will, in most cases, be withheld from them through the closed procedure.

The final amendment is about children. The Government do not consider an amendment such as this necessary to ensure that the best interests of any children affected are treated as a primary consideration. The Government cite the “children duty” in Section 55 of the Borders, Citizenship and Immigration Act 2009 as applying already to the Secretary of State’s decision-making in respect of deprivation decisions. However, as the noble Baroness has already said, the Section 55 duty applies only to children who are in the United Kingdom. It does not apply if the children affected, who may be British citizens, are abroad at the time, as they very well might be when the power is being exercised in relation to an individual who is abroad at the time of deprivation. Amendment 56ZD is very simple. It seeks to extend the duty in Section 55 of the Borders, Citizenship and Immigration Act to children who are outside the UK at the time when the Secretary of State makes the decision affecting them. Can the Minister explain how else such children could be protected?

[Baroness Hamwee]

My Lords, I have Amendments 57A and 57B in this group and share the concerns that have been expressed about the substance and transparency of the new clause and what the point of it is. In Committee, I asked that question rhetorically. I now ask—I hope it is not a rhetorical question—why we should not use a TPIM, as we have that legislation on the statute book. The conduct of the individuals concerned seems to fall into the same area, and this indeed raises the same issue—that the individual has not been prosecuted. If TPIMs are not to be used, it is bound to raise the suspicion that the power will mainly be exercised when an individual is out of the country.

The charitably funded Bureau of Investigative Journalism has identified 17 cases, mainly through FoI and court records, in 15 of which the individual was overseas at the time of the deprivation under the provisions as we now have them. If these individuals are regarded as such a high risk, I think we can assume that, having lost their status, they would be subject to close surveillance, certainly if they are in this country. If they are overseas, that might raise even wider matters.

I understand from officials—I thank them as well as the Minister—that if an individual, having been made stateless through this procedure, is in the UK, he will have limited leave to remain. I was referred to the relevant Immigration Rules. Under paragraphs 404 and 406, a person who is,

“a danger to the security or public order of the United Kingdom”,

will be refused leave to remain. Can the Minister tell noble Lords whether that person is then disqualified from leave to remain and what happens to him?

I understand from the old UKBA casework instruction on restricted leave that that will apply, and that restrictions and conditions can be imposed, including a residence restriction. Noble Lords will recall concerns about residence restrictions under the old control order regime. One of the concerns about those restrictions was the impact on the family of the individual subject of an order. Can the Minister explain what will happen to the family of an individual if, on the one hand, he is in this country and if, on the other, he is abroad? Does the family qualify for leave to remain in the circumstances of the individual being a danger to security or public order, as I have quoted? I mention all this because the impact on families was a concern about control orders, TPIMs and terrorist asset-freezing. Reporting on that has been a component in reviews, which we have seen, by successive independent reviewers.

The Bureau of Investigative Journalism mentioned to me two examples of the impact on families. One was of a Sudanese-born man who lost his citizenship. The bureau told me that a Home Office official said in evidence in court that the Government waited until he was overseas before removing it. He had taken his wife and four children to Sudan for the summer. That left the children effectively exiled as well. The other example was of a British-born man whose youngest son was born here and who remains a British citizen. He has developmental disorders and is dependent on both his parents. His mother wishes to return to the UK for treatment for the son but she cannot do so without her husband. One does not want to be too hearts and flowers about this. The issue that we are being asked to consider is a tough one, but I think that the issue goes wider than just the individuals involved. I asked the Minister whether individuals and a family might be left without resources and so left destitute. Can he share with the House the Government’s position on that, particularly if the deprivation has been made while the individual is abroad?