BPR statement on George Floyd’s death, police violence:

 

George Floyd’s life mattered. Like Ahmaud Arbery, Breonna Taylor, Tony McDade, and too many others whose names we don’t know, Floyd was stolen from friends and family members who loved him and cared about him. His murder cannot be undone, and it is our most recent reminder of the fact that white supremacy, police violence, and racism are dangerously prevalent forces in America today… Read Full Statement

Citizen’s Dilemma: Reimagining the Future of UK Citizenship Laws

Shamima Begum, a British citizen born to Bangladeshi parents, recently lost the first stage of her appeal to retain British citizenship. The decision was celebrated by many in the UK as the delivery of justice. In 2015, at 15 years old, Begum left the UK for Syria to join ISIS. In 2019, discontent with her life in Syria but unrepentant for her decision to leave, Begum requested reentry into the UK. Her request was denied, and soon after, Begum found her British citizenship revoked. While Britons are right to condemn Begum’s unconscionable actions, her fate reveals the British government’s disregard for the basic legal rights from which all civil society derives its legitimacy. Citizens should only ever be able to lose citizenship voluntarily, and UK law needs to change accordingly.

The legal decision in Begum’s appeal hinges on a 2006 amendment to the UK Citizenship Act of 1987. The amendment grants the UK’s Home Secretary the authority to revoke British citizenship if they perceive that doing so would be “conducive to the public good.” The one check on this power is that the Secretary cannot make anyone stateless. Begum lost her appeal in part because she was eligible for Bangladeshi citizenship by birthright. This, the Special Immigration Appeals Commission (SIAC) ruled, meant that the Secretary’s citizenship deprivation order would not leave her stateless, even though Begum does not possess, and has not attempted to claim, Bangladeshi citizenship.

Begum’s story is exactly the sort of situation the 2006 amendment (passed within a year of the 2005 London subway bombings) was designed to address. She left the UK to join a group expressly opposed to the existence of societies like the UK’s. Begum has expressed little remorse for her actions, so it’s easy to argue that removing her from British society would be “conducive to the public good.” But such an argument for depriving her of citizenship would give a dangerous amount of discretion to a supposedly democratic government, and risks converting citizenship into a privilege to be denied either as a punishment for wrongdoing, or for the vaguely-defined benefit of others. This is a dangerous direction to go in, as to undermine citizenship is to undermine democratic society itself.

A state’s right to punish its subjects is derived from the social contract between the state and an individual citizen. In his treatise The Social Contract, philosopher Jean-Jacques Rousseau laid out an idea of just punishment which can help serve as a compelling foundation for how to think about citizenship revocation.

"But such an argument for depriving her of citizenship would give a dangerous amount of discretion to a supposedly democratic government, and risks converting citizenship into a privilege to be denied either as a punishment for wrongdoing, or for the vaguely-defined benefit of others."

Rousseau’s ideas on punishment are informed by his ideas of republicanism and his idea of the “general will,” which means, roughly, the collective will of all people. For a state to be legitimate, Rousseau argues, it must serve the general will, which in turn can generally be understood to mean that the state must govern with the consent of the governed. When it comes to issuing punishment, it is this consent that legitimizes the state as a punishing agent. In one example, Rousseau argues in The Social Contract that “in order not to be the victim of an assassin, we agree to die if we become one.”

Political theorist and constitutional scholar Corey Brettschneider points out, however, that there is tension in Rousseau’s assertion that punishment can be made legitimate by the consent of the punished; objectively speaking, most criminals don’t consent to be punished. Brettschneider resolves this tension by theorizing that Rousseau’s idea of consent isn’t so much literal as hypothetical. In other words, Brettschneider writes, the “ideal of hypothetical consent asks us to place ourselves in a contractual situation where we must determine which laws are justifiable provided that we ourselves and our fellow citizens are uniformly free and equal.”

From this example, it becomes clear that the legitimacy of punishment rests on the foundational relationship between state and citizen. Should the state, as punishment, end its relationship with a citizen, the state would undermine its own legitimacy to issue that punishment.

One reasonable argument in defense of UK law is that there is a difference between terrorism and “common” crimes, like murder or theft. Terrorism and treason are acts committed not just against individuals, but against the society itself. A terrorist motivated by a rejection of British society has, arguably, directly expressed their discontent with the social contract and their desire to void it. An effective solution, then, might be to endow, as the 2006 amendment to the British Citizenship Act does, a discerning individual with the flexibility and power to expel citizens.

But this standard is not nearly high enough to protect a right as fundamental as citizenship from being wrongfully deprived. The potential for abuse is readily apparent in a hypothetical situation described by Conservative British journalist Stephen Pollard. In a recent column for his publication, the Jewish Chronicle, Pollard imagined a scenario where an anti-Semitic Home Secretary could, under the existing law, issue deprivation orders with impunity to expatriate Israeli-British citizens on false pretenses.

If Britain wants its citizenship law to be robust against abuses of this kind, it desperately needs a new model. One potential solution, and one of the strongest models of citizenship law around the world, can be found in the US. True to the principles of republicanism ideated by Rousseau, it is close to impossible to lose US citizenship without explicitly renouncing it yourself. In Trop v. Dulles, a landmark case from 1958, the US Supreme Court ruled on citizenship deprivation as a punishment and found it illegal. In his majority decision, Chief Justice Warren described citizenship as “the right to have rights,” laying the groundwork for modern citizenship law in the US.

To lose US citizenship today, it must be proven that individuals accused of acts like treason or terrorism are not only guilty of them, but that they also intended those acts as a voluntary renunciation of their citizenship. Under such a framework, the key question in Begum’s case would not be whether she deserves to lose citizenship or if such a punishment would promote the common good, but rather if her actions constitute a voluntary renunciation of her British citizenship. Considering the fact that Begum was radicalized young, ultimately deciding to leave the UK at only 15 years old, whether her actions truly represent a voluntary rejection of her UK citizenship is a question that warrants the careful deliberation of a court of law, not a single Home Secretary.

The result of the US legal approach to citizenship is a system that protects citizenship as a basic right and guards against abusive or frivolous revocation of citizenship, while still allowing for a reasonable interpretation of certain actions as a citizen’s intent to void their own citizenship. While the US system may not be precisely compatible with the UK’s common-law-based legal system, repealing the Home Secretary’s dangerously unchecked power to un-person Britons is a critical first step forward. Until then, Britain continues to undermine the sanctity of its own social contract.

About the Author

Peter Lees '21 is the Senior Managing Editor of the Brown Political Review Magazine. Peter can be reached at peter_lees@brown.edu

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