Draft Nationality and Borders Act 2022 (Consequential Amendments) (No. 2) Regulations 2022

Stephen Kinnock Excerpts

Monday 7th November 2022 General Committees

[Stephen Kinnock (Aberavon) (Lab)]

It is a real pleasure to serve under your chairship today, Ms Cummins.

Powers to deprive someone of their British citizenship in certain circumstances were initially introduced in section 40 of the British Nationality Act 1981. Those powers were subject to a requirement that the Home Secretary provide written notice to anyone subject to a deprivation of citizenship order. In recent years, some high-profile legal challenges have been brought against the Government by people who were deprived of their citizenship without having received the requisite notice.

During parliamentary consideration of the Nationality and Borders Bill, Ministers explained that under existing law written notice had to be sent to a person’s last known address, and in some cases it might not be possible to reach them at that address, including in cases where the individual in question was known by the Home Secretary to be abroad in a war zone. On that basis, the Government argued that there should be exceptions to the requirement to give notice. Section 10 of the Nationality and Borders Act provides for such exceptions to be made, primarily based on security concerns.

The Opposition were not convinced by all of the Government’s arguments and worked in the other place with colleagues on a cross-party basis to secure important safeguarding amendments, the first of which established a far more restricted range of circumstances in which notice could be withheld. The original clause would have allowed the Secretary of State to withhold notice whenever that appeared to be in the public interest. Amendments removed the subjective element and provided that notice may be withheld only if the Secretary of State does not have an address for service, or if she reasonably considers it necessary on one of four exceptional grounds.

The second amendment was about judicial oversight. If the Secretary of State wishes to withhold notice, she must apply to a superior court of record, the Special Immigration Appeals Commission, in advance or within seven days. The SIAC, applying judicial review principles, will examine her reasons and decide whether or not her assessment is obviously flawed. The same test is applied to the making of terrorism prevention and investigation measures under the Terrorism Prevention and Investigation Measures Act 2011. If she does not succeed on her first attempt or on a subsequent application, which must be based on a material change of circumstances or further evidence, the Secretary of State must either give notice in the normal way or revoke the deprivation order altogether.

Thirdly, decisions must be reviewed regularly. The Secretary of State must consider three times a year for two years whether the reasons for non-notification remain valid. If, after the sixth review, she still resists notification, she must make a further application to the SIAC, which will once again give independent scrutiny to her decision.

As mentioned, the second of the safeguards is the reason we are here today, and we welcome the specifics of the instrument. The Act also stipulates, in schedule 2, that the Secretary of State should apply to the SIAC when making an order to deprive someone of their citizenship without notice. The commission may then determine whether the Secretary of State’s reasons for not providing notice are valid. If the commission determines that the reasoning is obviously flawed, the Secretary of State may appeal that determination to the appropriate appeal court.

What the draft regulations do is enable the Lord Chancellor to make rules setting out details of how the process should work. The rules will need to be approved by Parliament before coming into force—a process that we think is vital. Governments have had the ability to revoke British citizenship in certain cases for decades now, so the concept is not new, but the specific measures introduced through the Nationality and Borders Act give the Secretary of State significant new powers. I am sure the Minister agrees that those powers should never be used lightly; their use should be the last resort, where there is no alternative, and there should be safeguards to ensure that the system is fair and subject to independent oversight. The regulations are the first step toward establishing mechanisms for that.

The Minister will be aware that some people have voiced concern about the proposed role of the SIAC, given the secrecy of its proceedings. Protecting sensitive material on security grounds is of course crucial. I have two questions for the Minister. First, what reassurances can she give that the new rules will strike the right balance between safeguarding national security and an individual’s right to appeal? Secondly, setting up the new process and establishing rules for how it should operate may take some time; can she indicate how long it might take and when the new system might be up and running?