Deprivation of citizenship and deception: Mo than meets the eye
Sir Mo Farah has recently revealed that he was trafficked to the UK as a young child and subjected to abuse after being forced into domestic labour. Headlines reporting how he was trafficked to the UK and treated like a slave have referred to him as ‘an illegal immigrant’ and highlighted the threat to his British citizenship due to these revelations. For the four-time Olympic champion, lauded as one of the UK’s most successful athletes, the idea that his very status as a British citizen could be at risk is nothing short of shocking.
British Nationality Act 1981
Debate around the right to deprive British nationality resurfaced even before Sir Mo Farah’s recent announcement. New powers in the Nationality and Borders Act 2022 now allow the Home Office to deprive a person of their British citizenship without giving them notice. As contentious as this is, such measures are restricted to exceptional circumstances, for instance where such notice would prejudice sensitive intelligence sources. The introduction of these measures highlights the key theme that runs throughout the legislation; British citizenship is a right, not a privilege.
Section 40 of the British Nationality Act 1981 sets out the circumstances in which a person can be deprived of their British citizenship. The aim of Section 40 BNA 1981 is to maintain national security and public safety. Importantly, the power to deprive can only be exercised in certain circumstances, namely where deprivation of citizenship is conducive to the public good or if citizenship was obtained fraudulently. Section 40(4) BNA 1981 confirms that a person cannot be deprived of their citizenship if this would render them stateless but this does not apply to every situation. Section 40(4A) BNA 1981 stipulates that a person could still be deprived of citizenship even if this renders them stateless if certain circumstances apply. Importantly, this includes where a person has obtained British citizenship from naturalisation.
Deprivation is conducive to the public good
The definition of ‘conducive to the public good’ is set out in the Secretary of State’s guidance as follows:
55.4.4 “Conduciveness to the Public Good” means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.
Therefore, the situations in which it could be considered conducive to the public good to deprive an individual of citizenship connects to those who represent a threat to the UK, such as terrorists, extremists or organised criminals. The widely reported Shamima Begum case demonstrated this power in action, when she was deprived of her British citizenship after leaving the UK to join the so-called ISIS. To date, Shamima Begum remains in a Syrian refugee camp, litigating her right to return to the UK to appeal the decision to deprive her of citizenship.
Fraud, False Representation or Concealment of Material Fact
Obtaining citizenship through fraudulent means relates to circumstances where an individual may have used fraud, false representation or concealment of a material fact to become British. Examples of such fraud could include using false names or documents to procure citizenship. A key consideration for the Home Office would centre on whether the fraud was ‘directly material’ to the grant of citizenship. In Sir Mo Farah’s case, the use of a different identity to enter the UK was arguably not material to his grant of citizenship. However, he was only a child when he was trafficked to the UK; as an adult knowingly using a false identity, it is possible that the Home Office could view such false representation as serious enough to warrant action.
Discretion
Crucially, the exercise of discretion is built into the factors to take into consideration when deprivation of citizenship is a possibility. The Home Office guidance emphasises that caseworkers must assess whether deprivation is a ‘balanced and reasonable step to take’ after conducting a review of the seriousness of the fraud and available evidence. Thankfully, for Sir Mo Farah, a Home Office spokesperson has already confirmed that no action will be taken against him.
Summary
A deprivation of citizenship order can have serious and wide-ranging consequences for the person affected. It is also possible that any dependants who have derived British citizenship from a person subject to a deprivation decision could also be impacted. If you are facing a deprivation of citizenship decision from the Home Office it is important that you seek specialist legal advice as soon as possible. Latitude Law have extensive experience in this area; call us now on 0345 209 1700 or complete our contact form.