Stateless Terrorists: Domestic and International Legal Implications

utf-8UNHCR-GLC-Statelessness-Poster-A1-screen2 (2)We are delighted to welcome this guest post by Ntina Tzouvala and Rumyana Grozdanova on Theresa May’s announcement of her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship. Ntina is Deputy Co-Convener of Law and Global Justice and a PhD student at Durham Law School who is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala

Rumyana is Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US programme of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan

On 12 November 2013 the Home Secretary, Theresa May, announced her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship even if this renders them stateless. In years following 9/11 and 7/7, domestic and regional counter-terrorism responses have reshaped the relationship between individuals and the state and in particular the relationship between individuals suspected of terrorism and the state. Through broad anti-terrorism legislation, law has become a tool for persecuting individuals suspected of terrorism; the new measures proposed by Theresa May are yet another domestic step in what has been described as the ‘weaponisation of law’ (1). In the context of the transnational counter-terrorism operations led by the US and UK (also known as the ‘War on Terror’), the UK Terrorism Act 2000 introduced tougher and more extensive anti-terrorism measures in comparison the USA Patriot Act 2001. The existing definitions of terrorism were vastly expanded from politically motivated violence to include politically and religiously motivated serious property damage and interference with electronic systems; protests and strikes could thus potentially fall under the definition as well. The 2000 Act also outlined a proscription regime based on intelligence evidence, which by its nature was secret and introduced offences relating to being a member of or identifying with a proscribed organisation. Other broad offences were introduced, which appeared to push the boundaries of inchoate or pre-crime liability by criminalising the possession of articles. Due to the broad scope and span of the legislation, these offences could potentially by applied to individuals who are suspected of terrorist activities. This legislative approach towards a permanent basis for anti-terrorism measures in times of normalcy as opposed to times of national exigency was followed by the Anti-Terrorism, Crime and Security Act, 2001. The 2001 Act revived the offences of failure to provide information to the authorities, the use of immigration law as part of anti-terrorism law and a renewable 15 month derogation from Article 5(1)(f) the European Convention on Human Rights. The derogation in question was used to authorise indeterminate administrative detention of non-UK citizens suspected of involvement in terrorist activities however could not be deported due to the principle of non-refoulement. It was struck down by a House of Lords decision, which found the post 9/11 derogation to be both disproportionate and discriminatory by focusing on non-UK citizens only as posing a threat of terrorist activities. Perhaps the most significant legal development of the post 9/11 and 7/7 UK approach is the return to the regular renewal of the anti-terrorism legislation, which in 2006 and 2008 included minor expansions to the definition of terrorism (2). In short, domestically, the adopted definitions of terrorism have legitimised and normalised broad sweeping counter-terrorism measures. A significant development within this context is the recent case of R v. Gul. The UK Supreme Court found that there is no basis on which the ‘natural, very wide, meaning’ of the definition of terrorism under the 2000 legislation could be read restrictively as the definition ‘had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take.’ Thus potentially anyone can be a suspect of terrorism or terrorist related activities as illustrated aptly by the recent 9 hour detention of David Miranda at Heathrow Airport. Historically, few words have been plagued by so much indeterminacy, subjectivity and political disagreement as the word ‘terrorism’ (3). The term has gradually developed into one of the most pejorative words in the English language with a power focused on condemnation and response rather than explanation. Taking into account the pejorative connotations associated with the term terrorist suspect and the potential implications for an individual under the current anti-terrorism framework in the UK, the reasons behind Theresa May’s proposal lie elsewhere.

It could be assumed that this response to the recent Supreme Court decision in the case of Secretary of State for the Home Department v. Al-Jedda. In this case, the Court found that section 40(4) of the British Nationality Act 1981 prevents the Home Secretary of depriving someone from his/her British citizenship ‘if she is satisfied that the order would make them stateless.  By repealing the law, Theresa May will seek to remove this restriction and allow for more flexibly in measures taken against suspected terrorists. Significantly, the Secretary of State presently commands a wide discretion when it comes to deprivation of citizenship. Since 2002 the Secretary of State has the right to deprive of citizenship not only naturalised citizens, as was the case until then, but also has power to remove citizenship from all British citizens. The Act was further amended in 2006 to expand the discretion of the state – now any British citizen can be deprived of their citizenship ‘if the Secretary of State is satisfied that deprivation would be conducive to the public good’. Prior to this amendment, the Secretary of State had to be satisfied that the person had done something ‘seriously prejudicial to the vital interests of the United Kingdom. The inherent indeterminate scope and ambiguity of the ‘public good’ criteria has thus significantly enhanced state power when it comes to removal of citizenship.

Section 40(4) is perhaps one of the last legal safeguards against misuses of the Act. Statelessness significantly imperils the rights of an individual; most crucially it renders them exceptionally vulnerable as it would be almost impossible to acquire travel and identification documents and legally reside in a territory. The international community was determined to limit the occurrence of such precarious experiences after the infamous Nuremberg Laws and the Holocaust. Following World War II, the granting and removing of nationality ceased to be an unlimited prerogative of the state as international legal documents began imposing constraints on signatory states. Article 15(1) of the Universal Declaration of Human Rights adopted in 1948 notes that  ‘Everyone has the right to a nationality’. While the Declaration did not have a legally binding character when adopted, today it is generally accepted that it has acquired international customary law status and is therefore binding upon all states. Furthermore, two conventions with exclusively focusing on statelessness have been drafted under the auspices of the UN. The 1956 Convention Relating to the Status of Stateless Persons attempted to mitigate the adverse impact of statelessness by designating a minimum standard of treatment for stateless people. The 1961 Convention on the Reduction of Statelessness sought to reduce the occurrence of the phenomenon by imposing significant limitations on states’ discretion to manage their citizenship laws with a view to limit incidents of statelessness.  This Convention came into force in 1975 and after this date its provisions set out significant international legal limitations for states parties to it, including the UK, which ratified the Convention in 1966. Articles 7, 8 and 9 impose limitations on the deprivation of nationality if a state act results in rendering an individual stateless; therefore, the UK’s discretion on the matter is curbed under international law.

Admittedly, the UK has altered its obligations under the treaty by tabling a reservation. Nevertheless, the repeal proposed by the Home Secretary appears to exceed the scope of the reservation itself. The reservation only covers the deprivation of citizenship of naturalised citizens. Hence, one could reasonably argue that the 2002 amendment of the British Nationality Act 1981 was already in violation of the 1961 Convention. More importantly, the text and spirit of the reservation strongly indicates that it refers to individuals convicted by a court of law for ‘seriously prejudicing the vital interests of Her Britannic Majesty’. There is no evidence that the reservation was intended to be applicable to ‘suspects of terrorism’. Such an interpretation broadens the scope and span of the reservation in a manner that undermines the object and purpose of the Convention itself (5). Hence, the mantra that British citizenship is ‘a privilege, not a right’ and as a corollary that it is strictly and solely within the UK Government’s authority to manage citizenship rules are deceptive, as they involve (purposefully) a disregard for international legal obligations.

(1) Kennedy, D., Of War and Law (2006, Princeton; Princeton University Press) and Murphy, C. C., EU Counter-Terrorism Law (2012, Oxford; Hart Publishing);

(2) The list of Acts containing the term ‘terrorism’ in their title and the full texts of the Terrorism Act 2006 and the Counter-Terrorism Act 2008 are available at http://www.legislation.gov.uk/primary?title=Terrorism

(3) Saul, B., Defining Terrorism in International Law (2006, New York; Oxford University Press), see also Gearty, C., Liberty & Security (2013, Cambridge; Polity Press)

(4) United Kingdom of Great Britain and Northern Ireland

“[The Government of the United Kingdom declares that], in accordance with paragraph 3 (a) of Article 8 of the Convention, notwithstanding the provisions of paragraph 1 of Article 8, the United Kingdom retains the right to deprive a naturalised person of his nationality on the following grounds, being grounds existing in United Kingdom law at the present time:  that, inconsistently with his duty of loyalty to Her Britannic Majesty, the person

“(i) Has, in disregard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or
“(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.”

(5) Article 31(1) of the Vienna Convention on the Law of Treaties provides us with a useful guide as for the interpretation of treaty obligations: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Stateless Terrorists: Domestic and International Legal Implications

Supreme Court Judgment will Lead to Greater Transparency in Naturalisation Decisions

We are delighted to welcome this guest post from Alan Desmond, PhD candidate at UCC and IRCHSS Government of Ireland scholar. This post first appeared on website of the EUDO Observatory on Citizenship

In a report on citizenship acquisition in Ireland issued in 2011, the Immigrant Council of Ireland highlighted a number of issues which make the process of applying for Irish citizenship unduly difficult for migrants. One of these issues, the Minister for Justice’s freedom to refuse applications for naturalisation without an accompanying explanation, has been dealt a death blow by a Supreme Court decision delivered on Thursday, 6 December.

Continue reading “Supreme Court Judgment will Lead to Greater Transparency in Naturalisation Decisions”

Supreme Court Judgment will Lead to Greater Transparency in Naturalisation Decisions

Proposed changes to citizenship requirements in Ireland

Earlier this month, the Minister for Justice issued a statement which offered an insight into the effect that the recession has had on the immigration and asylum system in Ireland. While reflecting on measures that were implemented in 2011, the statement also outlined law and policy changes in the area of immigration and asylum for the coming year. What is clear is that such areas continue to be matters of concern for the government, despite the fact that there has been a significant drop in the number of those actually entering Ireland, particularly in the case of asylum seekers. The statement also indicates that the government is intending to introduce a number of changes to the manner in which citizenship is acquired in Ireland, signalling a sudden renewed interest in issues related to integration what is now expected of those who wish to become Irish by naturalisation. Continue reading “Proposed changes to citizenship requirements in Ireland”

Proposed changes to citizenship requirements in Ireland

Ziolkowski: A Cautious Judgment on the EU Right of Permanent Residence

We are pleased to publish this guest post from Stephen Coutts, a researcher at the European University Institute. Stephen is a graduate of University College Cork and the College of Europe (Bruges). His doctoral research focusses on the relationship between EU citizenship and the area of freedom, security and justice in the EU. Stephen is the EU Correspondent for the Irish Yearbook of International Law.

Handed down on the 21st of December by the Grand Chamber of the Court of Justice, Ziolkowski is the latest in a series of cases clarifying and refining the right of permanent residence contained in Directive 2004/38 (the Citizenship Directive). Following cases C-325/09 Dias and C-169/09 Laval Ziolkowski addresses the requirement of five years prior legal residence and specifically whether periods of residence under national law, Continue reading “Ziolkowski: A Cautious Judgment on the EU Right of Permanent Residence”

Ziolkowski: A Cautious Judgment on the EU Right of Permanent Residence

SCS on Children's Rights: The Final Report of the Committee on the Constitution and Youth/Child Voting

Earlier this week, the All Party Oireachtas Committee on the Constitution released its final report. Amongst the various proposals in relation to electoral reform made by the Committee was a recommendation that the voting age for Dáil elections should be lowered from 18 to 17 years-of-age.

In terms of Article 16 of the Constitution, voting for Dáil Éireann candidates is currently limited to those over 18, while the age of eligibility for membership of Dáil Éireann (in relation to which the Committee did not make any recommendations) is prescribed as 21.

In addition, the Committee recommended that a voter education programme should be introduced as part of the senior cycle programme in second-level schools, to promote awareness of the right to vote among newly eligible voters.

In its report, the Committee highlighted that areas in the electoral system where improvements are required include ‘the political engagement of young people’ (p.16) The proposed reduction in voting age was consistent with submissions made by a range of international and domestic experts on youth voting and issues of youth citizenship more broadly (see pages 79-83 and 123-126). These submissions highlighted the link between reduced voting ages and increased voter turnout, the lack of political accountability of elected representatives to children under 18, and the discrimination inherent to the current situation in which Irish people under 18 can leave school, work and pay taxes but have no right to a say in democratic decision-making. Continue reading “SCS on Children's Rights: The Final Report of the Committee on the Constitution and Youth/Child Voting”

SCS on Children's Rights: The Final Report of the Committee on the Constitution and Youth/Child Voting

Gender Equality, Citizenship and Multiculturalism

An international conference entitled Gender Equality, Citizenship and Multiculturalism will be held on Friday September 10th 2010 in the Brookfield Health Sciences, Room G04, University College Cork, from 10.15am- 5.30pm Speakers include: Anne Phillips (London School of Economics) (Keynote Speaker), Audrey Macklin (University of Toronto), Javaid Rehman (Brunel University, London), Salome Mbugua (AkidWa), Maireme Helie-Lucas (Women Living Under Muslim Laws), Betty de Hart (Radboud Universiteit Nijmegen), Maleiha Malik (King’s College London), Catherine Cosgrove (Immigrant Council of Ireland), Siobhan Mullally (University College Cork), Mairead Enright (University of Kent), Eoin Daly (University College Cork), Susan McKay (National Women’s Council of Ireland) and Penelope Andrews (City University of New York).

For inquiries, please contact anne.neylon@student.ucc.ie

Click here for registration forms and programme

This conference forms part of an IRCHSS-funded project, Gender, Religious Diversity and Multiculturalism (PI Dr. Siobhán Mullally, Law, UCC).

Registration Fee €45, Student Fee €20 (includes light lunch and refreshments)

CPD points: 7 hours (group study)

Gender Equality, Citizenship and Multiculturalism

Immigration and 'Marriages of Convenience'

On Monday, the Irish Times reported on a new operation which has been undertaken by the Garda National Immigration Bureau (GNIB) to detect and prevent what they believe to be marriages of convenience for the purpose of securing EU residency rights. A Pakistani man, Muhammad Shafi, was recently convicted of offences related to the possession of ‘false instruments’. Gardai also intervened to halt his marriage to a Lithuanian woman. The Irish Times reports that marriages designed to circumvent certain legal obstacles to residency in Ireland are an important informal feature of  our immigration regime, with the Minister  for Justice estimating that  “30 per cent of all our applications for recognition under the EU directive on freedom of movement and residency involve persons who were illegally present in Ireland or on a temporary or limited permission when making their applications”. The Times explains:

These marriages are typically arranged by failed asylum seekers or former students from Asia who no longer have permission from immigration authorities to stay in Ireland.

Minister for Justice Dermot Ahern told his EU counterparts at a meeting in Spain at the weekend that there was evidence of growing abuse of immigration laws with a growing number of non-EU nationals marrying women from the Baltic states.

Some 110 of the 384 residency applications made by Pakistanis in the Republic in 2009 were based on marriages to Latvians.

A further 50 applications were based on marriage to Polish nationals while 47 applications were based on Pakistanis marrying Estonians.

Continue reading “Immigration and 'Marriages of Convenience'”

Immigration and 'Marriages of Convenience'

Immigrant Council of Ireland: Probing the Citizenship Regime

logoThis post is contributed by Ruth Evans, Media and Communications Officer at the Immigrant Council of Ireland.

Earlier this year, a woman came to the Immigrant Council of Ireland for information about a particular issue when, almost as an aside, it emerged that she had applied for citizenship of this country by naturalisation.

She is the single parent of several young children and earns less than €500 a week.  Clearly, she would be granted social welfare assistance of some kind if she applied for it but, knowing that to do so would rule out any chance of her citizenship application being successful, she has never applied for State benefits and struggles by under her own steam. Making a decision not to access social welfare despite financial hardship, even if caused by redundancy, is not unique to this client.  It is something we hear repeatedly from callers to the ICI’s Information and Referral helpline.

Accessing social welfare payments is one of the grounds for refusal of citizenship applications in this country.

After waiting two years for her application to be processed, our client received a letter from the Government, which she assumed would contain the Minister’s decision whether or not her application was successful.  Citizenship decisions are made at the absolute discretion of the Minister for Justice, Equality and Law Reform.

There was no decision in the letter.  Instead, our client was informed that the Minister had deferred making a decision for another 12 months so that he could ascertain that she remained in employment and financially independent of State funding during that time.

Continue reading “Immigrant Council of Ireland: Probing the Citizenship Regime”

Immigrant Council of Ireland: Probing the Citizenship Regime

Migrants and Child Citizens: Ireland and Greece

From the Guardian comes the news that George Papandreou’s newly elected Pasok (Socialist) government have begun to overhaul Greece’s much-criticised immigration policy (I blogged about the Greek connection to the Calais ‘Jungle’ affair here last month and you can read about Greece’s examination by UNCERD in August here). In particular, citizenship will be granted to the Greek-born children of migrants who have legally settled in Greece.  At present, the State does not provide such children either with a birth certificate or with a long-term residence permit. Since December, some such children have been able to apply for long-term residence. Prior to that change in the law, they were obliged to apply for a permit – on the same terms as a new migrant – upon reaching the age of 18. The Guardian reports:

“Absurd is too light a word to describe the lot of these kids,” said Petros Papaconstantinou, a prominent anti-racism spokesman. “Even if born in Greece, even if they attend Greek schools and speak only Greek, which invariably is the case, on paper they don’t exist at all.”

Without official documentation the children were often subject to abuse, arrest and deportation at the age of 18, he said. “There are children whose parents are from Africa, Asia and countries like Albania who are enrolled at schools across Greece but who have no papers whatsoever. In Europe this is unique.”

The Greek developments raise the spectre of the the family rights wing of Ireland’s immigration regime, the flagship initiative of which became the  Twenty-Seventh Amendment to the Irish Constitution – famous enough at this point, even to be considered in Seyla Benhabib and Judith Resnik’s new book.

Continue reading “Migrants and Child Citizens: Ireland and Greece”

Migrants and Child Citizens: Ireland and Greece