Does the government have the power to strip Alaa Abd El-Fattah of his recently acquired British citizenship? Sources within government reportedly say no. But the relevant legislation is in fact highly permissive. The government cannot avoid taking responsibility for deciding to exercise or not exercise the power to deprive him of his citizenship.
The government may decide not to exercise its power here. But it cannot maintain that there is simply no power to act
El-Fattah was registered as a British citizen in December 2021, in the course of the campaign against his imprisonment in Egypt. Successive UK governments made efforts to secure his release from prison in Egypt. He was released in September and was allowed to leave Egypt in December. The Prime Minister said on Boxing Day that he was ‘delighted that Alaa is back in the UK and has been reunited with his loved ones’, noting that ‘Alaa’s case has been a top priority for my government since we came to office.’
Immediately thereafter, controversy arose in relation to El-Fattah’s past social media posts, which appeared to call for violence against Zionists, the British government, police and others – and insult Britain and the British. These posts, or at least some of them, were well publicised more than a decade ago, leading in 2014 to El-Fattah’s nomination for a European human rights award being withdrawn. It bears noting that since the latest public row began, El-Fattah has sought to apologise for and distance himself from at least some of his past statements. He said that he understood ‘how shocking and hurtful’ the posts were and that they were ‘expressions of a young man’s anger’.
But how did the UK government come to award him citizenship in 2021? He would seem clearly to fail the test of good character that usually applies to applications for naturalisation. But El-Fattah claimed descent from his mother, who was born in the UK, and in 2019 the law was changed to remove the test of good character for this type of application. The change was made in response to the High Court’s declaration, in R (David Fenton Bangs) v Home Secretary (2017), that the law unjustifiably discriminated against those claiming descent from their mother. After the British Nationality Act 1981 (Remedial Order) 2019 came into force, El-Fattah was entitled to be registered as a British citizen on application.
But what about the power to remove his citizenship from him now? The Guardian reports sources in government saying that ‘the legal bar for revoking citizenship had not been met and the evidential case in relation to Abd el-Fattah had not changed for 12 years, during which he was granted citizenship.’ The Home Secretary, it was claimed, ‘is unlikely to remove someone’s British citizenship unless they obtained it by fraud or are considered a terrorist, extremist or involved with serious organised crime’ and ‘the bar on removing citizenship was set high to provide the necessary safeguards.’
It is unclear who in the British government was aware of El-Fattah’s past statements when his application for citizenship was granted. Those statements would not have justified denying the application – the test of good character having been removed – but it does not follow that they cannot now form the grounds for removal of citizenship.
It may well be true that the Home Secretary is ‘unlikely’ to exercise her statutory power in this case, but the prior question is whether she has the power to act. Does she consider El-Fattah to be an ‘extremist’? And what is the legal test for removing the British citizenship of a person who acquires it by naturalisation? While the legislation does provide some important protections, including a right of appeal, it is far from clear that ‘the bar on removing citizenship was set high to provide the necessary safeguards’. In fact, for many years the bar has not been high at all.
The power to deprive a person of his British citizenship was introduced in the British Nationality and Status of Aliens Act 1914 and continued in the British Nationality Acts 1948 and 1981. The power did not at first apply to natural-born citizens. However, the Nationality, Immigration and Asylum Act 2002 changed this, authorising the Home Secretary to deprive any British citizen of citizenship if satisfied that the person has done something seriously prejudicial to the vital interests of the UK and would not thereby be made stateless.
The Immigration, Asylum and Nationality Act 2006 went further, replacing the test of serious prejudice to vital interests with the formulation now in force, namely that ‘the Secretary of State is satisfied that deprivation [of citizenship] is conducive to the public good’.
The legislation as it stands makes British citizenship insecure, which is concerning. It is hard to justify the government having a power to deprive either natural-born citizens or those naturalised as children of their citizenship. However, while El-Fattah has been a British citizen for four years, he has been resident in the UK for a little over a week and certainly less than a month. Depriving him of his British citizenship would be quite different to depriving a natural-born citizen or a citizen naturalised as a child of their British citizenship.
The question for the Home Secretary is whether depriving El-Fattah of his British citizenship would be conducive to the public good. While Home Office guidance focuses on national security, involvement in organised crime, and the like, it refers also to ‘other unacceptable behaviour’, and the statutory test itself is permissive.
In her recent statement, A Fairer Pathway to Settlement, the Home Secretary Shabana Mahmood stressed the importance of the character and conduct of applicants for settlement and of their meaningful engagement with British society. The government has a much freer hand in refusing an application to acquire citizenship then it does in depriving someone of citizenship, of course, but it would be surprising if a wholly different philosophy applied.
Without swift action, Egypt may move first and strip him of his Egyptian citizenship
In thinking about the public good, the Home Secretary should ask herself whether a recently naturalised adult should remain a citizen when it comes to light that they have in the past seemingly advocated violence and displayed contempt for Britain and the British. There is a strong moral case that such a person should not continue to be our compatriot, that association with us is incompatible with support for violence, and will undermine social cohesion.
The 2002/2006 legislation is more permissive than the earlier legislation. Still, it bears noting that the 1914 legislation provided that the Secretary of State shall deprive a naturalised citizen of his citizenship not only when it is obtained by fraud but also when the naturalised citizen ‘has shown himself by act or speech to be disaffected or disloyal to His Majesty’. The 1914 Act also made clear that a naturalised citizen should be deprived of his citizenship if, within five years of naturalisation, he was sentenced to imprisonment for twelve months or more, or if he was not of good character at the date of naturalisation.
It would be open to the Home Secretary to reason that El-Fattah should be deprived of his British citizenship because he appears to be an extremist (which does not mean an Islamist) and was not of good character when he was registered as a British citizen. He may not have shown himself to be disaffected to Britain since 2021, but his past speech is certainly relevant to what is now in the public good. In depriving him of his British citizenship, the Home Secretary would not seem to be severing any real connection he has to this country, in which he does not reside. In addition, without swift action, Egypt may move first and strip him of his Egyptian citizenship, which will make him impossible to remove from the UK.
None of this means that the Home Secretary necessarily should exercise the power. If she does attempt to deprive El-Fattah of his citizenship, it seems very likely that he would appeal, at which point her reasons would be considered by a court. Article 8 of the ECHR (the right to respect for family life) would be relevant, as El-Fattah’s disabled son lives in the UK. The application of Article 8 is often unpredictable, but the Home Secretary should be able to argue that depriving El-Fattah of his citizenship – and, if necessary, deporting him back to Egypt – is compatible with Convention rights.
Parliament has empowered the government to deprive someone of their British citizenship when this is conducive to the public good. The government may decide not to exercise its power here. But it cannot maintain that there is simply no power to act.
Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford
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