David Hicks and British Citizenship: the shame of it all

Sharpener readers with good memories may recollect that there is a certain common theme to my posts. They all have something to do with citizenship and passports (in a rather formal sense). This one is no different. It’s about David Hicks, the Australian detainee in Guantanamo Bay, who discovered belatedly that he was entitled to UK Citizenship by descent (via his mother).I don’t know what I feel more ashamed of or horrified by. The continued refusal of the Australian Government to seek the return of Hicks so that he can either stand trial or be released, having been incarcerated for four years and suffered, he alleges, torture and ill treatment.The behaviour of the UK Government in refusing initially to confer citizenship upon Hicks, until literally forced to do so by the British Courts (see here for the full judgment). Anyway, finally Hicks got his UK citizenship on 6 July 2006. However, he had it for just one day. He was then immediately deprived of his citizenship under s.40(2) of the British Nationality Act 1981, as amended by s.56 of the Immigration, Asylum and Nationality Act 2006, which had literally been enforced for weeks. This allows the Minister to deprive a person of citizenship under a lesser test than was applicable previously:

“(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.”

Previously the test was that citizenship could be revoked only for conduct “seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory.”

Or maybe I am most ashamed of the fact that this manifestly arbitrary behaviour, which demonstrates the current UK Government’s disregard for underlying legal principles of fairness, reluctance to abide by Court rulings, and willingness to use the legislature which they still dominate to get themselves out of sticky situations by adopting ad hominem measures such as this new test of citizenship deprivation, has not been reported in the UK. Anywhere. I was vaguely aware of the Hicks case, and I had read the judgment earlier out of interest and also because it is relevant to my work. However, I was alerted to this latest development by this post on the US based international law blog Opinio Juris, and the only press reports I can find are Australian, where it is reported that Hicks plans an appeal.

I find the lack of attention horrifying. Hicks may have an alternate nationality, but self-evidently it is doing him no good at all, given the inaction of the Australian Government. He continues to be held in defiance of all international norms, and to be threatened with forms of military justice which themselves have been held to be contrary to the US constitution. Moreover, it is possible to imagine that there are going to be further cases in the future of deprivation of nationality in the UK, which remarkably has not happened even in the US in terror cases, although there has been talk about it in the past.

Anyway, the full sorry story about David Hicks and the admittedly ‘poor life choices’ he has made (a quote from his indefatigable lawyer Major Mori who is big news now in Australia) is here in his Wikipedia entry.