Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  A child born outside the United Kingdom is automatically born British if at least one of her parents was a first-generation British citizen at the time of her birth. However, if that child born outside the United Kingdom then has a child also born outside the country, citizenship is not automatically passed on any further. If such a child is born outside the UK and is then brought back to the country by her parents, there is normally no route by which that child can become British. Instead, she will need to wait until she turns eighteen and then apply as an adult.

  The application route for adults to become British is called naturalisation. The rules differ slightly for those who are married to a British citizen and those who are not. Essentially, though, the requirements are that the applicant is of good character, has an intention to live in the UK, has lived lawfully in the UK for five years continuously and has settlement at the time of application and passes the citizenship test on knowledge of life in the United Kingdom. The 45-minute multiple-choice exam is based on the information in a booklet about Britain produced by the government. It has been compared to a bad pub quiz, with the booklet containing several hundred dates as well as odd trivia such as the height of the London Eye in feet and who started the first curry house and on what street.7 Few existing British citizens are aware of these facts, which raises the question of why new British citizens should be expected to learn them. The overall pass rate for those sitting the test is around 70 per cent, but success varies considerably by country, with 97 per cent of Australians but only 40 per cent of Afghans getting through.8 Where an applicant has committed serious criminal offences, the good character requirement may mean that she is permanently barred from applying in the first place, or for less serious offences a period of ten years must elapse before she can apply. At the time of writing the fee was £1,330, which is prohibitive for many.

  Dual citizenship is where a person holds one or more nationalities. British nationality law is entirely relaxed about dual citizenship and permits its citizens to hold multiple nationalities. Some other countries force their citizens to choose, however, and several have laws that mean, if a person does acquire another nationality, their original nationality is automatically lost.

  LOSS OF CITIZENSHIP

  British citizenship is, in legal terms, merely a form of immigration status, and in recent years it has become a revocable one at that. Just as a settled foreign national can be stripped of his or her immigration status and deported on the grounds that to do so would be ‘conducive to the public good’, so too can a British citizen be deprived of his or her citizenship status on precisely the same basis. The power comes from different statutes – from the Immigration Act 1971 for foreign nationals and from the British Nationality Act 1981 for British citizens – but the test is expressed in identical terms.

  Given that treason laws are now defunct, exiling a citizen is the strongest expression of disapproval available to the modern state. The deprivation power has existed in statute in one form or another since 1918, but for decades it was seldom used. The test for depriving a person of his or her citizenship went through various permutations in this time, including examinations of disloyalty and criminal behaviour. Between 1948 and 2010, only a handful of citizens were stripped of their status in this way – generally spies during the Cold War. In response to a handful of high-profile but exceptional cases, such as those of extremist cleric Abu Hamza and Guantanamo Bay detainee David Hicks, the power was expanded and the test lowered, so that by 2006 it was equivalent to the test for deportation. It also became possible to strip British citizens, who had been born as British citizens in Britain, of their citizenship if they happened to have inherited another nationality from their parents. Still, the power was still seldom used.9 That changed in 2010, though, when the numbers began to creep up. Since then, hundreds of British citizens have been exiled on public good grounds.10

  Source: FOI 38734; ‘HM Government Transparency Report 2018: Disruptive and Investigatory Powers’, July 2018.

  Until the case of Shamima Begum highlighted this trend in 2019, there was little or no public discussion.11 Begum was born in Britain and grew up in Britain, but aged fifteen she left the country and travelled to Syria to join the terrorist group ISIS. The British government, arguing that she had inherited Bangladeshi nationality through her parents, stripped her of her British citizenship in 2019, preventing her return to the UK. The fact that she had never even visited Bangladesh was irrelevant, it seemed, as was the fact the Bangladeshi government disclaimed responsibility for her.12 So, she was left stranded in squalid, life-threatening conditions in a refugee camp in Syria, effectively stateless. It was reported in the press that she had given birth to three children, all of whom were British citizens by descent and all of whom died in infancy. Even now, the fact that hundreds of British citizens, primarily citizens of colour whose parents migrated to the United Kingdom, have been exiled abroad in unbelievably harsh conditions attracts little comment and no justification from the ministers responsible, other than that it was done in order to protect national security.

  Commentators have questioned the loyalty of Begum and others to the British state and argued that citizenship deprivation is justified on those grounds.13 Even on the right of the political spectrum, though, some have expressed unease and suggested that a better way of trying and punishing disloyalty would be through treason trials; we will take a look at these arguments in a moment, but the fact is that such trials are currently impossible.14 Although the Treason Act 1351 is technically still in force, the language is so antiquated that it is universally considered defunct. A new Treason Act would be needed.

  Whether or not Shamima Begum represents a threat to national security, her exile can be seen as opportunistic rather than principled. As a British citizen who was born and radicalised in Britain, she is the responsibility of the British government and should not therefore be foisted on Bangladesh or Syria or any other country. Other British citizens who had acted in the same way could not be treated alike because their parents did not come from abroad. Shamima Begum is a member of a new category of second-class citizens who have family origins abroad, and it cannot be ignored that they are therefore more likely to be from an ethnic minority. Her case and hundreds of cases like hers raise profound questions about the value and meaning of British citizenship. Some argue that the credible threat of taking something away increases its value. For example, prior to nationality law reforms in 2002, the White Paper ‘Secure Borders, Safe Haven: Integration with Diversity in Modern Britain’ argued that ‘a corollary of attaching importance to British citizenship is that the UK should use the power to deprive someone of that citizenship’.15 Others retort that the threat to remove citizenship, particularly when directed only against some citizens, only cheapens and trivialises it, turning it from an inalienable right into nothing more than another form of immigration status.

  It might be argued in defence of deprivation that the protection of national security does not need to be principled, it just needs to be effective. But citizenship can be taken away on far wider than just national security grounds. In October 2018, then Home Secretary Sajid Javid announced that he would start to strip citizenship from serious criminals, as well as those who threatened national security.16 The test case involved the notorious Rochdale sex trafficking gang, some members of whom had naturalised as British citizens as well as retaining their original nationality. It seems likely to be only a matter of time before other offences that attract public opprobrium, even those involving people who were born British, also trigger citizenship deprivation and exile. Now that the taboo against revoking citizenship has been broken, it will likely prove impossible for politicians to resist the temptation to use their wide discretionary powers.

  BRITISH CITIZENSHIP POLICY

  The whole concept of who is ‘British’, of who ‘we’ are, and of what it means to be British is therefore very confused. Some people who hold British legal status cannot live in Britain
and some people who seem to be British and who do live in Britain do not hold any legal status at all. The rights and responsibilities of British citizenship overlap chaotically with other groups of residents and non-residents. The laws on nationality and citizenship often look like pragmatic policy choices made years ago as the United Kingdom withdrew from its empire. Depressingly, though, there are three entwined threads that tie together this apparent incoherence: the conception of citizenship as a privilege rather than a right, a desire to limit the numbers of citizens and a related racial dimension.

  For a time during the 2000s, it seemed as if a positive citizenship policy might emerge linked to the idea of integration. The meaning of the word ‘integration’ has always been contested, and it was never clear if citizenship was a tool to promote and encourage the integration of migrants into British society, or if it was intended to certify that only after it had occurred. As Home Secretary, David Blunkett introduced a new citizenship test in 2002 that was intended to promote integration. The test was and remains still a multiple-choice exam based on a booklet about Britain. The content of the booklet has changed since the test’s introduction, but the principle remains that migrants seeking citizenship need to learn the content of the booklet in order to pass the test. Setting aside the sometimes esoteric nature of the content of the booklet, in principle this does potentially perform an educative function for those who want to become citizens. However, it does nothing to encourage migrants to become citizens; if anything, it does the opposite, given that it acts as a barrier. Around 30 per cent of those who take it fail the test, and they must either resit and pass or accept their position as non-citizens with a less secure form of status. This is a strange way to integrate those who fail.

  In 2008, the concept of ‘earned citizenship’ emerged and proposals were made to introduce a new status of ‘probationary citizenship’, which would last for between one and three years depending on whether the probationary citizen carried out a certain amount of voluntary or community work. The underlying principle was to be that migrants should earn their British citizenship – but this too looked more like an exclusionary than an integrationist approach. The reality was that citizenship would take longer to achieve and would be harder to obtain. The plan was an example of migrants being held to a higher standard than existing citizens, few of whom undertake community work other than as part of criminal sentences.

  After the Conservative-led coalition government took power in 2010, the link between citizenship and integration faded away into the background. Leading politicians turned their attention to focus more on the circumstances in which citizenship is taken away, rather than the purpose for which it is granted in the first place. If there has been one idea driving developments over the past decade, it is that citizenship is exclusive and conditional. This conception of citizenship as something for which to be grateful has a long history, dating right back to the first introduction of the power of citizenship deprivation. The principle was initially only applied to naturalised citizens, though. Then Home Secretary George Cave, introducing the Bill that would become the British National and Status of Aliens Act 1918, justified the new deprivation power by explaining that, unlike the native-born citizen, ‘a man who is naturalised here really gives a statement of good character, a promise to be of good behaviour, a promise of loyalty … If these promises are broken it is only fair that the state should have the right to revoke a privilege given to him.’17 When use of the deprivation power had seemingly fallen into abeyance, the government of the day nevertheless wished to retain the option just in case. Lord Mackay of Clashfern, the Lord Chancellor, outlined the government’s position:

  Citizenship is a privilege, and we think it reasonable that there should be power in the last resort to deprive someone who has voluntarily sought our citizenship … and who then acts against the interests of this country or behaves in a way that brings discredit on the grant of citizenship to him.18

  As previously noted, citizenship has become revocable for British citizens born British, as long as they have another nationality on which they can fall back. From that point on, in legal terms British citizenship has genuinely become a revocable privilege rather than an inviolable right, at least for citizens with a foreign heritage. The rhetoric took a few years to catch up with the law. As Home Secretary Jacqui Smith introduced the government of the day’s ‘earned citizenship’ legislation reforming the criteria for naturalisation, she stated that citizenship was a privilege.19 Lord West then made the same point for the government in the House of Lords a few days later.20 In a sign of things to come, other parliamentarians on the right of the political spectrum explicitly and repeatedly stated during debates on the 2008 Bill not just that citizenship was a privilege, but also, more than that, that it was not a right.21

  Under the 2010 to 2015 coalition government, this was sanctified as the official government position. Immigration minister Mark Harper used the ‘privilege not a right’ phrase when introducing proposals for the Immigration Act 2014 to enable even citizenship deprivation which would leave the individual stateless.22 His successor as immigration minister, James Brokenshire, stated in 2015 that the government’s position was: ‘UK citizenship is a privilege for those who deserve it, not an automatic right for those who do not.’ By this line of thinking, British citizenship is conditional even for those who are born British. It is the antithesis of political theorist Hannah Arendt’s famous argument in The Origins of Totalitarianism that citizenship is both foundational and indispensable because it is the ‘right to have rights’, without which other all rights are meaningless. This is why citizenship-stripping is so momentous and why it is so concerning that ministers are increasingly willing to use the power against an ever-wider range of people. ‘Denationalisation’, as it is sometimes known, was once seen as the tool of regimes like Hitler’s Germany and Stalin’s Russia. Partly for this reason it was essentially abandoned as a practice after the Second World War. Today it is coming back into fashion.

  As well as signalling censure, the modern penchant for citizenship-stripping in Britain also arguably reflects a desire to maintain a small rather than a large pool of citizens. There is popular pressure to keep the numbers of new citizens down, and the press commonly conflate immigration with nationality policy; perhaps unsurprisingly given that so too does the British government. When the numbers of residents naturalising rose by around 15 per cent in 2006, the Telegraph complained with a headline reading, ‘1 million new British citizens under Blair’. ‘This is a direct result of their “no limits” immigration policy,’ the chairman of anti-immigration pressure group MigrationWatch was quoted as saying. ‘Immigration on this scale is changing the nature of our society without public consent. It is no longer acceptable.’23 When the Labour government unveiled the earned citizenship proposals, the Daily Mail greeted the plan with the headline: ‘The great passport giveaway: Up to 250,000 foreigners to get UK citizenship every year’.24 This was not a cause for celebration, it seemed. After the Brexit referendum vote, as literally millions of EU citizens living in the UK wondered what their future held, The Sun splashed with: ‘WE WANT TO BE LIKE EU: Thousands of EU citizens rush to get their hands on a British passport before Brexit, new figures reveal’. Lest readers miss the point, the subheading continued, ‘Record numbers try and win right to stay and work in the UK once we leave the bloc in 2019’.25 The article omitted to mention, however, that these EU citizens were required to have lived in the UK for at least five years to be eligible to apply for naturalisation. In some countries, new citizens are celebrated. Not so in Britain.

  The obsession with numbers is official government policy and has been since at least 1981. This is not hard to deduce from the effects of various legal changes over the years, but the official intention to restrict numbers was confirmed in a revealing internal Home Office memorandum written in 2002. Normally this sort of internal advice from civil servants to ministers would not be published for at least thir
ty years but, unusually, this was publicly disclosed by deliberately being placed in the House of Commons library. At that time David Blunkett was Home Secretary and he was considering the correction of one of the worst nationality law injustices of the twentieth century: the treatment of the East African Asians.

  Living in Africa as British subjects and citizens of the United Kingdom and Colonies, East African Asians had been assured, following the Commonwealth Citizens Act 1962, that they would be able to relocate to the UK if they needed to.26 As newly independent governments in Kenya, then Tanzania and finally Uganda treated them increasingly harshly as the 1960s went on, ever-greater numbers started to do just that. In response, Labour Home Secretary James Callaghan passed the Commonwealth Immigrants Act 1968 in a matter of days in order to stop further arrivals. Many of the East African Asians had not acquired citizenship in their newly independent countries, meaning their own citizenship was British, but now they were prevented from entering their own country. Returning again to 2002, Blunkett had signalled during passage of the Bill that was to become the Nationality, Immigration and Asylum Act 2002, that he was sympathetic with their cause. ‘We have a moral obligation to them going back a long way,’ he said, ‘and it is unfinished business.’27