A river meeting an impediment will divert so as to find a course of least resistance. Similarly, governments faced with legal obstacles will try to find another way of dealing with a perceived problem.
In recent years the UK government has become frustrated with the high burdens and thresholds imposed by courts in respect of what it says are national security issues.
And so it has hit upon using a legal weapon which somehow meets less judicial resistance: removing people’s citizenship. Under Section 40 of the British Nationality Act 1981 (as amended in 2006) the home secretary can remove citizenship from many British citizens.
Only those who are British citizens by birth with no actual or theoretical alternative citizenship are entirely safe. In certain circumstances, a person can actually be left stateless.
One would think that depriving someone of their citizenship is about as basic a human rights issue as it is possible to be. To have one’s citizenship removed is not to lose one legal benefit but a whole raft of legal rights. It is perhaps the most fundamental human rights issue, alongside the right to life and the right not to be tortured.
And so one would also think that the courts would (to use a lawyer’s phrase) subject this power to anxious scrutiny. You would think that this would be the sort of legal determination where the courts would want the most detail possible and would then conduct the most delicate of balancing exercises, ensuring this foundational right of the citizen is respected.
You would, of course, be wrong. The case of Shamina Begum, deprived of her British citizenship in 2019, showed our courts at their very worst as protectors of basic human rights.
In one passage of its judgment the Court of Appeal said that as long as the secretary of state took into account the fact that Begum might be rendered stateless, the minister could still deprive her of her citizenship:
“Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so.”
A similar nod-along, minister-knows-best attitude is apparent from how all the other grounds of appeal were rejected. In 2024 the Supreme Court rejected her application to appeal on what were similarly dismissive and deferent grounds.
That it is even for a minister to make this determination (subject to very light-touch judicial review) seems the wrong way around. It should be for an independent court or tribunal to determine this right, with submissions from the government and the affected party. But in our executive-dominated constitutional arrangements it is a matter for a politician’s discretion.
And when politicians can make decisions about the fundamental rights of individual citizens then they will tend to make political decisions. One can hardly expect otherwise. The case of Begum is now a football, kicked about in improvised matches between political and media players.
In the last few days the case of Alaa Abd El-Fattah has come to light, which has led to demands for the home secretary to deprive him of his citizenship for the “public good”—despite there being no evidence of wrongdoing other than some old tweets which have been excavated.
So far, the Home Office has stood firm and refused to remove his citizenship. But the sad truth is that if a home secretary formed the view based on the evidence before them—even social media posts—that it was in the public good to remove his citizenship then, again, the courts would be likely to nod along. Only in the absence of any evidence whatsoever would our judges be likely to say “actually, wait a moment”.
We have a brutal power that can be exercised pretty freely by a politician in accordance with media priorities. And with a single act of discretion a minister can remove not just one right of a citizenship, but an individual’s very citizenship itself.
In our current hyper-partisan political and media culture, this is a dangerous device for any government to have, let alone if we had a radicalised populist administration. However, as politicians will, like a river, take the course of least resistance, remedial measures are needed to force them to address any concerns by other means instead.
