Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I shall concentrate on the subject that I know best because I reviewed it for the Home Office in 2016: the deprivation of citizenship, covered in that late addition to the Bill, Clause 9. The phrase has a Cold War feel to it: we think of Aleksandr Solzhenitsyn, deprived of his citizenship by the USSR. But it is really a version of the ancient practice of banishment—likened by Voltaire, himself exiled to England as a young man, to

“throwing into a neighbour’s field the stones that incommode us in our own.”

The tightly drawn powers to remove citizenship under the British Nationality Acts, including for disloyalty or disaffection towards Her Majesty, were not used in the 30 years prior to the war on terror, but thresholds were reduced in 2003 and 2006 to the point where today, Ministers need be satisfied not that someone is a terrorist or a traitor but only that their removal would be

“conducive to the public good”.

In 2014, a further power was taken to render naturalised British citizens stateless, if the Home Secretary was additionally satisfied both that their conduct was seriously prejudicial to the vital interests of the United Kingdom and—a concession made in response to concerns expressed in your Lordships’ House—that they were eligible for citizenship elsewhere.

Removal of citizenship is now relatively common. The factsheet for the Bill on this matter tells us that the power to deprive people of their citizenship on “conducive to the public good” grounds was exercised around 170 times between 2010 and 2018. Clause 9 does not alter the criteria for removal of citizenship but effectively makes it optional, rather than mandatory, to notify the subject of their change in status. A more limited attempt to achieve this, which deemed notice to have been given by the entry of a note on the subject’s Home Office file, was made in a statutory instrument of 2018 that passed unremarked through Parliament but was held last July in the case of D4 to be ultra vires of the Act. At least this time around we have a power of amendment.

With Committee stage in mind, I ask the Minister six questions which I would be happy to have answered in writing. First, why is such a power needed at all? The existing rules allow subjects or their parents to be notified by post or email at their last known address, at home or abroad. Have there been cases—and if so, how many—in which even this basic information is not known?

Secondly, if it is necessary to remove citizenship without notice, why is the prior permission of a judge not required—the safeguard that applies to more transient measures such as TPIMs and, formerly, control orders?

Thirdly, why are the circumstances in which notice may be dispensed with so extraordinarily broad, even by comparison with the rules that were struck down in July? Clause 9 allows notice to be withheld even when up-to-date contact details are available, when it is practicable to give notice, and when no considerations arise of national security or foreign relations. The Secretary of State does not even have to try to give notice: she must only believe that dispensing with notice is “in the public interest”. Hints of future ministerial restraint of the sort that the Home Office has been energetically tweeting during this debate have no basis in this clause and are no substitute for properly defined laws.

Fourthly, where is the provision to require notification after the event? What reason could there possibly be for not informing somebody within days, weeks or months of such a potentially cataclysmic event as the removal of their citizenship—especially when it is their only citizenship?

Fifthly, when does the time to appeal begin to run? You cannot appeal a decision you have not been told of, but once you do find out, is your appeal said to be time-barred?

Sixthly, why are courts restrained, retrospectively, from treating a deprivation order as invalid for failure to comply with such notification requirements as still remain?

There is already apprehension, especially and understandably among people of mixed heritage, about this country’s unusually far-reaching powers to remove citizenship. The proposal to allow the use of those largely unmonitored powers to be kept secret, even from a subject who could perfectly easily be told, has predictably compounded those fears.

Clause 9 has been insufficiently thought through; at least, I hope that is the explanation. We can, and must, do much better.

Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

It is not often that life gives you the chance to go back, start again and get it right the second time around. This is one of those cases and I urge noble Lords in all parts of the House to seize it.

[Lord Anderson of Ipswich (CB)]

My Lords, I shall speak to oppose the Question that Clause 9 stand part and to my Amendment 28, with my thanks to noble Lords from four different parties who have added their names. Unlike Amendments 27, 29 and 30 to 32, my proposals would not affect the grounds on which citizenship can be withdrawn, though, in partial sympathy with those amendments, and subject to hearing the Minister, I suspect that the current “conducive to the public good” criterion, introduced in 2006, as the noble Lord, Lord Moylan, has just said, is broader than it needs to be.

My stand part amendment gives effect to proposals of the Joint Committee on Human Rights and your Lordships’ Constitution Committee. Grateful as I am to the Minister for her letter on Clause 9—and I really am—it does not allay my profound concerns about a new power to remove a person’s citizenship not just without giving reasons, but without ever having to tell them that you have done so.

I would like first to probe rather further the need for Clause 9, by which I mean the practical need rather than the theoretical points set out in the letter. A Written Question in my name of 5 January asked in how many cases the need to give prior notification had prevented use of the deprivation power. The Minister replied:

“Prior to the recent High Court decision in the case of D4 ... there had been no cases where the notification requirement had prevented deprivation action from taking place.”


That is an interesting admission. For a short period between August 2018 and July 2021, the Government thought they had the power to notify by merely entering a note on the subject’s Home Office file, a route which the High Court and now the Court of Appeal have declared in the D4 case to be outside the statutory requirement that a person be given written notice.

The Minister’s answer shows that not only during this period but before it, when the Government did not claim to be able to notify simply by “putting the document in a drawer”, as Lord Justice Baker put it yesterday in the Court of Appeal, there were no cases in which the requirement to give notice prevented them removing citizenship. That is perhaps not surprising, since it is enough under the existing rules, which are very broad, for notice to be sent by post or email to the person’s last known address, or to a parent, or to the parent’s last known address.

What of the one exception, the case of D4? Her own lawyers told the High Court that her whereabouts in a Syrian camp were known to the Government at the time of deprivation—government agencies had been there to talk to her daughter—and that her family continued to live at her previous address in England. If that is right, the problem was not that the ordinary rules were inadequate but that the Home Office sought to use a procedure that turned out to be unlawful. The case for Clause 9, therefore, even in a case such as that of D4, has yet to be made. I urge the Minister to remedy that defect, if she can.

I question, secondly, the scope of application of Clause 9. Amendments 25 and 26 from the noble Baroness, Lady McIntosh, would remove some of the alternative grounds on which notice can be withheld. However, with great respect, they do not address the ground that is so broad as to make the others almost redundant: the power to withhold notice whenever it appears to the Secretary of State that this is in the public interest. With or without the noble Baroness’s amendments, Clause 9 permits notice to be withheld even when notification would be perfectly feasible and when no national security concerns are in play. Its effect would be to give the Home Secretary the simple option of telling people or not, as she pleases.

The Home Office has suggested, on social media, that the power would be used only in exceptional circumstances, or only if other means of service are not practicable, or in cases of a threat to national security. If that is the case, it should say so in the Bill. Tweets and videos do not bind current Home Secretaries, let alone future ones—neither, so far as the courts are concerned, do statements from the Dispatch Box. I say to the Minister: please put it in the law.

Thirdly, there is a remarkable absence of safeguards, even by comparison with the two countries I have found whose Parliaments have been prepared to give Ministers a power to withhold notice of citizenship removal: Australia and New Zealand. In Australia, the power to withhold notice applies only to deprivations on national security grounds, and only if the giving of notice would harm security, defence, international relations or law enforcement. There are no such limitations here—and there is accountability: the Minister must regularly table a report to Parliament on his use of the power and brief the Australian Intelligence and Security Committee in writing as soon as practicable after doing so. The Australian equivalent of the Independent Reviewer of Terrorism Legislation, the even more indigestibly titled Independent National Security Legislation Monitor, has a standing own-motion power to review citizenship deprivation laws, something that successive Home Secretaries have refused to permit here. The withholding of notice must be reviewed by the Minister personally every 90 days, and cannot be extended indefinitely, as Clause 9 proposes, keeping the subject in the dark and rendering nugatory his right of appeal. The previous Australian independent monitor, the former military lawyer, James Renwick SC, has proposed that notice should be given as soon as reasonably practicable and always within six months of the deprivation.

New Zealand has in place a stronger safeguard still. If the Minister wishes to dispense with notice, she must apply to the High Court and, if the High Court accepts her application, it will then carry out a full merits review of the decision to deprive. Prior judicial authorisation is hardly alien to our national security culture: we apply it to TPIMs, temporary exclusion orders and a whole range of intrusive surveillance powers. Why should it not apply to this most life-changing of executive measures—the cutting of the bond between citizen and nation?

My Amendment 28 would subject the citizenship removal power on “conducive” grounds to annual review, like the other powers used to combat terrorism. The current triennial review applies only to citizenship removal resulting in statelessness, as provided for by the Immigration Act 2014—removals which, one would hope, are unlikely ever to be more than a tiny proportion of the total.

Why? A recent Written Answer said there had been 14 citizenship deprivations on conducive grounds in 2016, rising to 104 in 2017 and falling back to 21 in 2018. No further breakdown, I was told, could be provided. Why the variation? Why the huge number in 2017, and why has there still been no publication of the figures for 2019, 2020 or 2021? A security cleared independent reviewer—why not the one we already have?—needs to be able to ask those questions, hold feet to the fire and report regularly to Parliament. How else are we to know what is going on in our name?

Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Alton of Liverpool (CB)]

Yes; not for the first time I agree with the noble Baroness, Lady Hamwee. It was British lawyers who crafted these things. Look, for instance, at the Nuremberg trials and the role of people such as Hartley Shawcross, who was the Labour Member of Parliament for St Helens, and the law officers from the United Kingdom in the establishment and creation of these things. They were a gift to many other nations. That is why we should be holding and enhancing them, not doing anything to diminish them.

[Lord Anderson of Ipswich (CB)]

My Lords, I struggle with some of the dilemmas presented by Clauses 29 to 37, for very much the reasons given by the noble and learned Lord, Lord Clarke of Nottingham, in his frank and powerful speech of 1 February on Clause 11. There are, after all, circumstances in which Parliament may legitimately set out its interpretation of treaty provisions and overrule decisions of our courts. There is also a desire, which others on these Benches may share, to give the Government the benefit of the doubt if they can show us why their proposals are not in breach of international law.

The problem I have in that regard is that we have seen impressive formulations of the case against these clauses: for example, from the UNHCR, in the opinion of Raza Husain QC, and in the briefing from the Bingham Centre to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has referred. What we—or at any rate I—have not seen is how the Government seek to justify these clauses against the requirements of the refugee convention, as interpreted by the Vienna Convention on the Law of Treaties.

For example, under Article 31.3 of the Vienna convention the interpretation of a treaty can legitimately be influenced by state practice. Do the Government rely on the statute or case law of other states as support for the interpretations that they ask us to enact? If so, which states and in relation to which clauses of the Bill? Do they say, in relation to each relevant provision of the refugee convention, that those practices establish

“the agreement of the parties regarding its interpretation”

within the meaning of Article 31.3(b) of the Vienna convention?

As a second example, the United Kingdom made various reservations and declarations at the time it ratified the refugee convention. Do the Government contend that these clauses, or some of them, constitute de facto reservations in so far as they purport to constrain, as a matter of law, the interpretation or application of the refugee convention? In that case, what are their arguments for their timeliness and permissibility and, if they are permissible, their compatibility with the object and purpose of the convention?

I appreciate, of course, that there are conventions regarding the publication of law officers’ legal advice, but surely a way can be found of conveying to your Lordships, and to the public, a detailed and authoritative explanation of the Government’s legal position in more detail than can be explained, however lucidly, by a very lucid Minister in this Chamber. Whether such advice will be enough to allay the concerns of those of your Lordships who take seriously our obligations under international law I cannot say, but at least these clauses will not be lost by default, which I suspect may be the alternative if we are left in the dark.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, if I may intervene briefly, I am not an expert in this field but once the lawyers start quoting clauses, sub-clauses and those sorts of things, one has to be careful. This is obviously an important point, and I was really taken by the speech of the noble Lord, Lord Alton. He has spent a lot of time on this and one has to respect the work he has done. He talked about us unscrambling. When my noble friend comes to wind up, can he say whether we are unscrambling or simplifying?

Some of the way this seems to read is that we are making a thing clear for everybody. Therefore, far from undermining what we stand for, we are making it clearer for everybody, and as such for the people of this country, to understand what the Government are trying to do, and thereby increase the degree of informed consent—a concept about which I am very keen. I understand the complications of the legal interpretations put forward by many noble and noble and learned Lords, but I would like my noble friend to tell me: are we simplifying or unscrambling? If we are simplifying, that seems a desirable thing to do.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

As a matter of policy, I am afraid I am not going to get into the discussions I have with government law officers and parliamentary counsel. The Government’s legislative programme has been set out. The Lord Chancellor, the Deputy Prime Minister and I have given evidence on this. We have made it clear that we will be staying in the European Convention on Human Rights. In so far as the burden of the noble Baroness’s challenge was that we have to be careful, because the Government are watering down rights, we are staying in the European Convention on Human Rights. Therefore—

[Lord Anderson of Ipswich (CB)]

I was going to wait until the Minister had finished his sentence but, before he sits down, I revert to the question of the Government’s legal case. The Minister is reticent to disclose government legal advice, which I entirely understand but, before the Committee and others can reach a fully formed opinion on this, they need a worked version of the Government’s legal position. It may be that that takes the form of a position paper or submission, rather than the replication of advice already given. But, until we see in detail what Raza Husain and the UNHCR got wrong, and why these interpretations are fully consistent with the Vienna and refugee conventions, the evidence is all one way. I am sure that I speak for many other noble Lords when I say that I would be very much assisted by seeing something of that nature.

[Lord Wolfson of Tredegar (Con)]

I hope the noble Lord does not take it amiss if I say, with respect, that he makes the same point as he made earlier. and I understood it. I need to be very careful that I do not get inadvertently drawn into disclosing legal advice, but I hear the point from the noble Lord that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.

Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

14: After Schedule 1, insert the following new Schedule—
“SCHEDULE 1A DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTThis is the Schedule to be inserted after Schedule 4 to the British Nationality Act 1981—“SCHEDULE 4A Section 40(5E)DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTDeprivation without notice: application to Special Immigration Appeals Commission1_(1) If the Secretary of State proposes to make a conducive grounds deprivation order without notice, the Secretary of State may apply to the Special Immigration Appeals Commission under this paragraph.(2) If the Secretary of State makes a conducive grounds deprivation order without notice, the Secretary of State must apply to the Special Immigration Appeals Commission under this paragraph within the period of seven days beginning with the day on which the order is made (unless an application has already been made under sub-paragraph (1)).(3) The function of the Commission on an application under this paragraph is to determine whether, in respect of each condition in section 40(5A) on which the Secretary of State relies, the Secretary of State’s view is obviously flawed. (4) In determining that question, the Commission must apply the principles that would be applicable on an application for judicial review.(5) If the Commission determines that the Secretary of State’s view is obviously flawed in respect of each condition in section 40(5A) on which the Secretary of State relies—(a) if the order in question has not been made, section 40(5) applies in relation to the order (notwithstanding section 40(5A));(b) if the order has been made, the Secretary of State must, within the period of 14 days beginning with the day on which the Commission made the determination—(i) give late notice in respect of the order,(ii) revoke the order, or(iii) make an application under sub-paragraph (6).(6) The Secretary of State may (at any time) make an application to the Special Immigration Appeals Commission for fresh consideration of a decision the Secretary of State has made under section 40(5A) where—(a) in the opinion of the Secretary of State, circumstances have changed materially since the determination mentioned in sub-paragraph (5), or(b) the Secretary of State wishes to provide further evidence to the Commission.Sub-paragraphs (3) to (5) apply to an application under this sub-paragraph.Deprivation of citizenship without notice: review2_(1) Sub-paragraphs (2) to (5) apply if—(a) the Secretary of State makes a conducive grounds deprivation order without notice, and(b) the Special Immigration Appeals Commission has not made the determination mentioned in paragraph 1(5) (Secretary of State’s decision obviously flawed).(2) The Secretary of State must, at least once in every review period, review the circumstances of the person in respect of whom the order was made (so far as known) and decide whether to give late notice in respect of the order.(3) On such a review, the Secretary of State must decide to give late notice to the person unless it appears to the Secretary of State that any of the conditions in section 40(5A) is met (reading any reference in those provisions to notice under section 40(5) as a reference to late notice).(4) If the Secretary of State decides at any point to give late notice in respect of the order—(a) the Secretary of State must give the notice as soon as reasonably practicable, and(b) once the notice is given, sub-paragraph (2) ceases to apply in relation to the person.(5) If on the expiry of the final review period the Secretary of State has not given, or has not decided to give, late notice in respect of the order, the Secretary of State must make an application to the Special Immigration Appeals Commission within the period of seven days beginning with the day after the final day of that review period.(6) Sub-paragraphs (3) to (6) of paragraph 1 (except sub-paragraph (5)(a)) apply for the purposes of an application under sub-paragraph (5) as they apply for the purposes of an application under that paragraph.(7) For the purposes of this paragraph, each of the following is a “review period”— (a) the period of four months beginning with the day after the day on which the Special Immigration Appeals Commission first determined an application in relation to the order under paragraph 1, and(b) each of the next five successive periods of four months.Interpretation3_(1) In this Schedule, references to making a conducive grounds deprivation order without notice are to making an order under section 40(2) without giving notice under subsection (5) of that section (in reliance on subsection (5A) of that section).(2) In this Schedule, “late notice”, in respect of an order under section 40(5), means written notice to the person in respect of whom the order was made specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.””Member’s explanatory statement
This amendment inserts a new Schedule into the British Nationality Act 1981, to make provision for judicial oversight of decisions to deprive a person of their citizenship status without notice on grounds that the deprivation is conducive to the public good.

[Lord Anderson of Ipswich (CB)]

My Lords, the circumstances in which British citizenship may be removed were keenly debated in Committee. This group concerns a narrower issue: whether it should be possible to remove someone’s citizenship without giving them notice of it at the time and, if so, in what circumstances. Clause 9 struck me as so problematic that, in Committee, I tabled a stand part notice; that is echoed today by Amendment 20 in the name of the noble Baroness, Lady D’Souza. In Committee, I asked the Minister to take Clause 9 away and challenged her, if she could make the case for such an extraordinary power, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.

The Minister responded to that challenge as positively and wholeheartedly as I could have hoped. I pay tribute to her, to her fellow Minister, Tom Pursglove, to the Bill team and to those at the Home Office and in agencies with whom I have discussed these issues—and I pay no less tribute to the NGOs and individuals who have impressed on me the dangers of Clause 9. The result, after what I think I can fairly describe as very considerable movement on the part of the Government, is the first six amendments in this group, together with Amendment 85, which concerns commencement. They have been pulled into proper shape by the Office of the Parliamentary Counsel, and I hoped that they could be tabled last Monday as government amendments, with my support, but an extra day was needed to conclude our discussions, so they appear under my name. I am grateful to the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady McIntosh of Pickering, for adding their support.

These amendments achieve four important things. The first is a far more restricted range of circumstances in which notice can be withheld. The original Clause 9 would have allowed the Secretary of State to withhold notice whenever that appeared to her to be in the public interest. Amendments 15 and 16 remove the subjective element and provide 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 the four exceptional grounds specified in Amendment 16.

Let me illustrate my understanding of how those exceptional grounds could arise in practice. A terrorist may be living in a safe house here, or more likely abroad, without realising that his whereabouts are known to the authorities. To require a notice of citizenship deprivation to be served on him at that address would reveal to him that he is the object of covert surveillance, contrary to the interests of national security: proposed new sub-paragraph (i). The same may be true of a participant in “organised or serious crime”—the phrase being taken from Section 1 of the Serious Crime Act 2015, which defines the remit of the National Crime Agency: proposed new sub-paragraph (ii). If intelligence as to location was supplied by a foreign liaison partner which does not wish its cover to be blown, notification at that address could jeopardise our intelligence relationship with that country: proposed new sub-paragraph (iv). The person in question might be, for example, with a dangerous armed group in a failed state. To require a courier to travel to such places to serve notice, at great personal risk, would be wrong: hence proposed new sub-paragraph (iii).

I do not believe that these grounds will be commonly advanced—it seems that, with a degree of ingenuity, workarounds have been found in the past—but neither, I suggest as a former independent reviewer of terrorism legislation, should they be dismissed as fanciful. It may be relevant that the laws of two of our closest allies are, if anything, more broadly drawn than this amendment. The New Zealand Citizenship Act 1977 allows for notice of deprivation to be dispensed with if it would be for any reason “not practicable” to serve it on the subject. The Australian Act of 2020 allows the Minister to determine that notice should not be given if it could prejudice the security, defence or international relations of Australia or Australian law enforcement operations.

The second feature of these amendments is to introduce powerful safeguards for conducive grounds deprivations that were entirely absent from the original Clause 9. In New Zealand, they have judicial scrutiny of these decisions. In Australia, they have regular ministerial review. Elements of both those safeguards are contained in the new Schedule 4A, which is set out in Amendment 14 and referred to in Amendments 17 and 19.

The judicial safeguard is in paragraph 1 of the schedule. 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. SIAC will examine her reasons and decide, applying judicial review principles, whether her assessment is obviously flawed. That is the same test that is applied to the making of terrorism prevention and investigation orders under the TPIM Act 2011. SIAC will no doubt develop similar rules to deal with it, which might, in an appropriate case, provide for the appointment of a special advocate. If she does not succeed on her first attempt or on a subsequent application, which must be based on 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.

The review safeguard is in paragraph 2 of the schedule. 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 SIAC, which will, once again, give independent scrutiny to her decision.

The twin requirements of judicial approval and regular review will place a significant burden on the Secretary of State in any case where she wishes to exercise this power. I make no apology for that. Under the Immigration Rules, as they stood between 2018 and 2021, it was easy—far too easy—not to give notice but simply to record it on the file. That path was taken in no fewer than 29 of the 45 conducive grounds deprivations, mostly related to national security activity abroad, that were made in 2019, 2020 and 2021. These amendments not only require non-notification to be a last resort on paper; they make it hard work in practice. They should ensure that, in its own interests, the Home Office will take this exceptional course only when there really is no possible alternative.

The third feature of these amendments relates to appeals. Of course, a subject cannot appeal against a notice of deprivation until he has become aware of it. But Amendment 18 provides that time for appeal will begin to run only once notice has been given. It will not, therefore, be necessary to rely on the discretion of the court to extend time for appeal in cases where deprivation has not been notified at the time.

The fourth and final feature is in the proposed new subsections 5(c) and (d) inserted by Amendment 18. Any person whose citizenship was removed without notice must be informed of that fact, with reasons and information about appeal rights, as soon as they make themselves known to the Home Office, whether within the two-year review period or thereafter; for example, this might be by seeking consular assistance or a fresh passport.

Amendment 18 has another significant and, I would suggest, highly beneficial effect. The point has been well made by other noble Lords that upstanding citizens of this country, notably dual citizens, may be anxious about the removal of their citizenship without their knowledge. Amendment 18 provides such people with a means of reassurance. They have only to contact the Home Office to be told whether this has happened or whether, as will almost always be the case, it has not.

In Committee, the noble Lord, Lord Blunkett, challenged the House to

“find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk”.—[Official Report, 27/1/2022; col. 518.]

These amendments rise to that challenge. They should ensure that non-notification is confined to those rare cases where it is truly necessary, and they are subject to strong safeguards, including regular review, judicial scrutiny and a right to be informed on request.

I come finally to subsections (5) to (7) to Clause 9, which seek to limit the effect of the D4 case by providing that an unlawful failure to notify a pre-commencement deprivation order should not affect the validity of that order. I will listen carefully to my noble friend Lady D’Souza develop her manuscript amendment to remove those clauses, but in the meantime, to assist our deliberations, I ask the Minister to give two assurances relevant to that amendment. First, will she confirm that anyone subject to a pre-commencement deprivation order will be informed of that fact if they contact the Home Office, by analogy with proposed new subsections (5C) and (5D), as inserted by Amendment 17? They would then be in a position to proceed with any substantive appeal. Secondly, will she confirm, by analogy with Amendment 18, that the Home Office will not suggest that any of these people are out of time for appeal as a consequence of the interval between the decision to remove their citizenship and the giving of notice?

If my amendments are accepted, and those assurances given, I believe that we will have played our part as a revising Chamber and achieved a broadly acceptable balance. Opinions on citizenship removal will, of course, continue to differ, but the aggravating factor of removal without notice will be strictly confined and properly safeguarded for the future, as it was not in the Immigration Rules as they stood prior to the D4 judgment of last year, and as it was not under Clause 9 as it was passed by the Commons. I beg to move my amendment and, if necessary, I will test the opinion of the House.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am very grateful to the Minister for her support in drafting these amendments, and I hope that she will give an assurance that the Government do, indeed, support these amendments. I thank the noble Lord, Lord Anderson of Ipswich, for addressing many of the concerns that I raised in Committee, particularly those expressed to me by the Law Society of Scotland, which was extremely dissatisfied that, in the original Clause 9, the Government had not fully justified the removal of citizenship without notifying the affected person. It asked that this clause be reconsidered, and I am grateful to the noble Lord for doing so.

Equally, in Committee, I raised the concerns expressed to me by the European Network on Statelessness in its briefing. It was very concerned that Clause 9 as drafted would

“have severe impacts on the rule of law and on a person’s fundamental rights”,

and that, as drafted, Clause 9

“disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing.”

In its view, the UK Government

“has not provided any justification as to why such a restriction on fundamental rights is needed.”

I pay tribute to the Minister and the noble Lord, Lord Anderson of Ipswich; many of my concerns have been addressed. I support the amendments introduced by the noble Lord, Lord Anderson, and support the reasons that he has given. The restrictive range of circumstances has been greatly reduced in which a citizen’s rights could be taken away. I support the powerful safeguards he set out as to why a citizen could be deprived of their citizenship, the rights of appeal, the provision that a citizen must be informed that their citizenship is going to be removed and the reassurance that he set out that could be given by condition C at that time. I support the amendments.

--- Later in debate ---

I hope that the noble Baroness, Lady Bennett of Manor Castle, will not press Amendment 22, and that the noble Baroness, Lady D’Souza, will not press Amendment 20, but the Government are content to accept the amendments from the noble Lord, Lord Anderson.

[Lord Anderson of Ipswich (CB)]

I am grateful to all noble Lords who spoke in this debate on a subject that I suspect none of us found particularly easy. I do not want to pre-empt anything, but it is possible, having heard the debate, that my amendments may not be very controversial. My noble friend Lord Carlile was alone in suggesting that these amendments go too far; he always was a little bit tougher than me. The real question for your Lordships might be whether they go far enough—whether, in short, we stick with my amendments or, as the opposition Front Benches maintain, twist by removing the whole clause.

The manuscript amendment shone a spotlight on subsections (5) to (7), which my amendments do not touch. With great respect to the noble Baroness, Lady D’Souza, it is not right that the effect of those subsections is that pre-commencement deprivation orders would, as she put it, not be subject to scrutiny. Their effect is rather that a pre-commencement deprivation would not be invalid purely because it was served to the file, in accordance with the Immigration Rules then in force.

Subsections (5) to (7) do not prevent a person who becomes aware of the deprivation—as the Minister just confirmed just now, they have only to ask—appealing it on any substantive ground. Indeed, the Minister also just confirmed, in providing the other undertaking that I sought, that the Home Office would not suggest that such appeals were out of time.

As to the suggestion that Clause 9 should be removed in its entirety, when I secured the agreement of the Government to my amendments, noble Lords will understand that it was not with a view to pocketing the gains and then asking for more. Therefore, I cannot in all conscience support that amendment myself, either as a tactical gambit or in the substance. I do, however, support my own amendments and I beg to move.

Amendment 14 agreed.

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich]

15: Clause 9, page 11, line 31, leave out “it appears to the Secretary of State that”
Member’s explanatory statement
This amendment removes the subjective element from the condition in paragraph (a) of new subsection (5A)(notice of deprivation of citizenship not required if Secretary of State does not have the requisite information).