As a child arriving at Dover after a 2-day train journey from Naples, my mother and I would go through Customs and passport formalities, a channel marked “Aliens“. Those were the days when Customs officers did actually inspect luggage and supercilious passport officers looked at you and your passport details as if determined to find some reason for turning you back. All that changed of course. Foreign-born citizens are no longer called such harsh terms. Not officially, anyway.

But now we have the proposed Nationality and Borders Bill. (It passed the Commons on Wednesday night and now goes to the Lords.) It extends the government’s powers to remove British citizenship. Such powers are not new. They have existed from at least 1981 in some form. But they only applied to those who became British by registration or naturalisation and only in very limited clearly specified circumstances (e.g. communicating with the enemy during war-time or being convicted to a prison sentence longer than a year). There was no power at all to remove British citizenship from those born British.

Then the Labour government started the process of extending its powers and levelling down our protections: first, by allowing British citizens to be deprived of their citizenship and, second, introducing a much lower bar for removal. In 2002 the test was if the person had done “anything seriously prejudicial to the vital interests of the UK or a British overseas territory“. In 2006 this was lowered still further: deprivation could happen if was “conducive to the public good“. Britain was well down the slippery slope.

What was the result of these changes? Well, the number of deprivations started increasing, the powers not having been used at all between 1973 – 2002. Most related to naturalized British citizens accused or convicted of terrorism or risks to national security or serious organized crime. In 2014 the bar was lowered yet again, this time by a Tory government in coalition with the Lib Dems: a British citizen could be deprived of citizenship even if it might cause that person to be stateless. The legality of this under international law is dubious. That slope got slippier and steeper. All three main parties had played their part in pushing Britain along it.

What does the new Bill propose? Clause 9 allows the Home Secretary to remove citizenship from a British citizen if she thinks it “conducive to the public good” without needing to give that person notice if –

1. The Home Office doesn’t have the information needed to give notice;
2. It would not be reasonably practicable to do so;
3. It would not be in the public interest to do so or in the UK’s interests or the interests of the relationship between the UK and another country.

You can still appeal against the decision though if you haven’t been told it’s not easy to see how this can be done.

The “information needed to give notice” clause is generally assumed to mean a person’s address. But the clause does not say this. It could equally mean the reasons for removing citizenship. And what do the words “not reasonably practicable” mean? Who decides? The Home Office? This is a licence for incompetence: the worse it is at its job, the easier it is to say that it does not have the information and it’s not reasonably practicable for it to do anything. So the effect of this change is that the Home Office is under no duty to take all reasonable steps to give notice to a British citizen that their citizenship is being removed and can justify this using its own uselessness.

Who does this affect? Potentially every British citizen. But on the (increasingly questionable) assumption that the government will not want to breach international law by rendering people stateless, it has been estimated that there are ca. 6 million people here who were born elsewhere and who have another nationality. But it is not just the foreign born potentially impacted. All those eligible for another passport could be affected, even if they don’t actually have that passport and even if born here. So everyone with an Irish grandparent, for instance. Every Jewish person. Everyone with an EU citizen as a parent. Everyone entitled to the nationality of the US, Canada, many South American countries, Australia and New Zealand. And their partners and children, of course, whose rights to live here may be dependant on one family member’s British nationality. All these groups have in effect a second-class type of citizenship ( the “Aliens” of my childhood) because it can be taken away from them on the say-so of a Minister without notice and without any effective right of appeal.

There is more. The Home Office had been in the habit of placing a notice on a person’s file if they did not have a person’s address, arguing that this was the same as “giving notice“. In July of this year, those pesky judges disagreed. So Ms Patel introduced another bit into clause 9 (and did so at the last minute after the Bill had already been debated) retrospectively authorising what the Home Office did before that ruling. Anyone who was given notice by having a note put on a file they can’t see will have lost their British citizenship and has in practice lost the right of appeal. It is a Kafkaesque approach to law-making.

Does this really matter? Yes. Being a citizen is the right to have rights. Isn’t this just meant for the Shamima Begums of this world? No. The Home Office recently won its case against Ms Begum – in relation to her right to return to make her appeal. The Bill does not limit itself to terrorists living outside the country. The government would like us to believe that this is only aimed at bad guys. But to think this you have to ignore what the Bill actually says and you have to trust the government. The first is foolish. The second is unwise – and not simply because of who occupies No. 10 right now. You need scrutiny, rights of appeal, an effective judicial system. The government is seeking to avoid or limit all three.

There is one further point to make. This is not a right/left-wing issue. Look at who started this process. And how. Small steps. Each step seems insignificant and justifiable, on the basis of some case involving a bad person or administrative convenience. Why make a fuss? Easy to dismiss the “slippery slope” argument as hyperbolic. But look where we are now: a government with the power to remove citizenship from people born here without notice, without effective appeal and for vague reasons.

As LBJ, no slouch when it came to untrustworthiness and corruption, said: “You do not examine legislation in the light of the benefits it will convey if properly administered but in the light of the wrongs it would do and the harms it would cause if improperly administered.”

And for those who say that no government would do all these awful things, the response is: “How can you be certain?” If the government wouldn’t do them, they don’t need the powers. If they have them, they will use them. If they have them, they will misuse them. Might Tory MPs stop fretting about Xmas parties, listen instead to these words from David Davis – “an uncivilised ….. removal of the rights of people” – and do the right thing for a change while they still can?

Cyclefree