The citizen as mere human: Litigating denationalization in post-9/11 UK

Introduction

Since the publication of The Origins of Totalitarianism in 1951, Hannah Arendt’s phrase the ‘right to have rights’ and her claim that having rights depends on belonging to and being recognized by ‘some kind of organized community’ have become key provocations on citizenship, statelessness and human rights (1973: 297). Her influence goes beyond academic circles to policy-makers and the judiciary. For example, in a seminal 1958 ruling that found revoking citizenship as a punishment for a crime to be unconstitutional, the Supreme Court of the United States stated that denaturalization ‘is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. … In short, the expatriate has lost the right to have rights’ (Trop v Dulles, 102–103). In a more recent case from 2013, the United Kingdom Supreme Court (the ‘UK Supreme Court’ or ‘Supreme Court’) engaged Arendt’s right to have rights language in holding that the United Kingdom (‘UK’) cannot deprive a person of British citizenship if it would make such person stateless (Secretary of State for the Home Department v Al-Jedda) (‘Al-Jedda’). The UK Supreme Court acknowledged the ‘evil of statelessness’ and noted that while human rights have ‘to some extent succeeded in establishing that a person’s right to have rights stems … from his existence as a human being, worldwide legal disabilities with terrible practical consequences still flow from lack of nationality’ (para. 12).

Arendt has been criticized, however, as operating within and perpetuating a state-centric framework that scholars and activists alike have sought to reimagine. In particular, the French political theorist Jacques Rancière (2010) argues that Arendt’s view of human rights as an inescapable paradox rests on the presupposition that there must be one true subject of rights—either man or citizen. Instead, he argues that ‘there is never merely one subject, since political subjects exist in the interval between different identities, between Man and citizen’ (Rancière, 2010: 56). Numerous scholars have drawn upon Rancière’s critique to argue that people can still be political actors when they are denied recognition or acceptance in the nation-state—a claim that, as I outline below, is not necessarily inconsistent with Arendt’s assertations (Beltrán, 2009; Honig, 2001; Isin and Rygiel, 2007; Nyers, 2003; Schaap, 2011).

Through their critiques of Arendt, Rancière and others have generated thoughtful debate about the possibilities of politics beyond the state and its citizenship regimes. I contend that following the events of 11 September 2001, the distinction, often attributed to Arendt, between ‘Man’ and ‘Citizen’ is increasingly blurred; yet this blurring does not necessarily offer any emancipatory potential as Rancière might suggest. While national citizenship is still meaningful, being a citizen may not be so different from being a mere human in certain significant contexts. By analysing emerging UK case law, I aim to elaborate this blurring and show how it compels us to reorient our critiques of citizenship and the state, including their significance and limits.

I specifically discuss the UK’s regime of involuntary loss of citizenship, which is also called citizenship revocation, denationalization or—in the UK’s legal terminology—deprivation of nationality. ¹ In particular, I focus on the recent legislation and case law in the UK concerning deprivation of nationality for the ‘public good’, which has been used to target British terror suspects. While the United States, France, Australia, Israel, Morocco, Bosnia, Denmark, the Netherlands, Kazakhstan and Canada have also sought to expand their powers to strip citizenship, the UK’s aggressive use of such power has led to several recent Supreme Court decisions and amended legislation that explicitly address the state’s obligation vis-à-vis stateless people.

In what follows, I draw upon three sets of key cases shaping the UK’s approach to nationality deprivation: (a) the 2013 Al-Jedda case, the only known instance of a person successfully challenging the loss of citizenship on national security grounds under the amended British Nationality Act (‘BNA’); (b) the 2015 case, Pham v Secretary of State for the Home Department (‘Pham’), the most recent UK Supreme Court case on deprivation of nationality, and its appeals; and (c) the 2015 European Court of Human Rights (‘ECrtHR’) case, K2 v The United Kingdom (‘K2’), which rejected a claim by a foreign-born British citizen that the UK violated the European Convention on Human Rights (‘ECHR’) in depriving him of his citizenship.

I do not analyse the UK jurisprudence as merely a discrete case study. Rather, I see it as encapsulating the reconceptualization of human rights, citizenship and statelessness in the post-9/11 era. The emerging jurisprudence shows that political subjectivity is still shaped by a statist definition of membership and that through this regulation of membership, the state has a very real effect not only on our definitions of legal personhood, but on how we exist and move throughout the world. However, the cases also indicate slippage between being a citizen and being a mere human: states such as the UK actively question the ‘right to be a citizen’ and indicate that even where that right is recognized, it does not guarantee the enjoyment of other rights. In this article I first point to the tensions in the UK’s attempt to reconcile a fundamental inconsistency between, on the one hand, the recognition of the human right to nationality and, on the other hand, the sovereignty of the state to define the citizen; and second, I consider the regime’s spatial control of the denationalization process whereby denationalization orders are commonly issued (and thus also contested) when the targeted citizen is outside the UK’s jurisdiction.

This study is based on case analysis. I did not participate in the lawsuits and, unlike classical anthropological case comparisons, I did not discuss the cases directly with participants. Rather, in addition to the legal decisions, I consulted commentary in the form of media reports, press releases and legislative responses. Further, the underlying questions animating this article—including the contemporary significance of state-based citizenship as well as the possibility of rights, freedoms and personhood exterior to such status—were central to the dozens of cases I worked on as a judicial law clerk and attorney.

While states have long had the power to revoke citizenship on the basis of bad acts, including for fraud, disloyalty or actions contrary to the public good, these powers were rarely used. Prior to the events of 11 September 2001, for example, the UK had not used its deprivation powers since 1973 (Sykes, 2016: 750). As David Trimbach and Nicole Reiz (2018) note in their report for the Center for Migration Studies of New York, ‘(w)hile citizenship revocation is not entirely new, citizenship revocation’s expansion in light of transnational terrorism is new’. The study notes that as of 2018, 130 state constitutions include language providing for citizenship revocation. In the UK alone, as of July 2017, more than 150 ‘suspected jihadists and criminals’ have been stripped of their British citizenship and banned from the UK (Press Association, 2017). Since the Islamic State lost its territory in Syria and Iraq last year, thousands of foreign fighters and their dependents have sought to return to Europe, North America and Australia. ² Particularly controversial are the citizenship revocations of women who joined the Islamic State and married fighters but did not actively participate in hostilities. Numerous countries have sought to block their own citizens from returning to the country and strip them of citizenship, as well as deny citizenship to their children born abroad. These attempts to mitigate terrorism and radicalization in North America and Europe raise major questions about the substance and meaning of citizenship in the post-9/11 era.

Rancière’s critique of Arendt

Arendt’s critique of human rights is rooted in her observations of postwar Europe where statelessness emerged as ‘the newest mass phenomenon in contemporary history’ (1973: 277). The Origins of Totalitarianism is replete with examples of mass denationalization including of Russians, Armenians, Hungarians, Germans and Spaniards. In addition, Arendt carefully documents denationalization legislation enacted in France, Portugal, Belgium, Italy, Austria, Egypt and Turkey (279–283). While she points out that denationalization has ‘became a powerful weapon of totalitarian politics’, non-totalitarian states also use denationalization to expel people seen as incompatible with the political community (269). In the United States, for example, American women who married foreign husbands lost their citizenship, as did people who engaged in foreign military service, voted in foreign elections or were convicted of treason or desertion (Weil, 2012: 1). ³ The United States has also seen repeated legislative attempts to revoke birthright citizenship, effectively stripping citizenship from people born in the United States to undocumented parents (Chavez, 2017). ⁴

In the context of the destruction of the First and Second World Wars, Arendt identifies the paradox of human rights. On the one hand, if human rights are reducible to citizenship rights then they are redundant since they are the rights of those who have rights already. On the other hand, if human rights attach to the human by virtue of being simply human and are independent of his or her membership in a political community they amount to nothing. According to Arendt (1973), history shows that ‘the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them’ (292). She argues that ‘Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity itself expels him from humanity’ (297). Thus, for Arendt, denationalization is the process by which a person, in being stripped of their formal inclusion in a political body is rendered ‘nothing but human’ (297).

Arendt’s views undergird the logic and rationale of international law concerning stateless persons. Yet Arendt has also been criticized as offering a depoliticized approach to human rights which ‘condemns’ the stateless to a status without rights (see Beltrán, 2009: 64; Schapp, 2011: 29). Rancière’s critiques of Arendt have been particularly influential for this perspective. He contends that Arendt creates an ‘ontological trap’ by arguing that human rights attach to either the human or to the citizen (Rancière, 2010: 67). For Rancière, human rights are not the rights of citizens or the rights of the abstract man who does not have rights, but, as Alison Kesby (2012) summarizes, ‘the rights of the ever-fluctuating subject of politics’ (118). Instead, Rancière (2010) insists on another way out: ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’ (67). Rancière’s cryptic statement finds clarification in his reference to Olympe de Gouges, a French writer and revolutionary who was executed during the Reign of Terror. She did not simply argue that women should have equal rights under the Declaration of the Rights of Man and the Citizen, but that they already had such rights since if they had the ‘right’ to face the guillotine (as she would), they certainly had the right to be equal citizens (Rancière, 2010: 68–69; see also Beauchamp, 2016: 944).

For Rancière, Arendt’s definition of politics is thus ‘a vicious circle: it identifies politics with a specific way of life of those whose way of life already destined them to politics’ (2011: 3). He argues that this attempt to ‘preserve the political from contamination by the private, the social or apolitical … depopulates the political stage by sweeping aside its always ambiguous actors’—actors such as Olympe de Gouges who show that mere life (as a woman, as opposed to a citizen) can in practice be political (Rancière, 2010: 66). In this way, Rancière presents an action-oriented concept of politics that is not based upon a person’s formal juridical status. Rather, his political subject is one who has ‘capacity for staging such scenes of dissensus’ (69). In fact, it is the ‘surplus subjects’, according to Rancière, who are political subjects (70): those who lack any sort of qualification or place in the spheres that we consider, in everyday parlance, ‘politics’. Yet this conception of politics, for Rancière, is the very opposite—it is what he calls the ‘police’:

Politics is generally seen as the set of procedures whereby the aggregation and consent of collectivities is achieved, the organization of powers, the distribution of places and roles, and the systems of legitimizing this distribution. I propose to give this system of distribution and legitimization another name. I propose to call it the police. (1999: 28)

I focus on Rancière’s critique of Arendt not only because he opens critical space to consider the privileging of the state and its formal definition of citizenship, but also because of the uptake of his key concepts like ‘dissensus’, ‘political subjectification’ and ‘politics’ by other scholars (Beltrán, 2009; Honig, 2001; Nyers, 2003; Isin and Rygiel, 2007). In particular, scholars engage Rancière’s rejection of the division between the citizen and human in order to explore how people considered the most unqualified for political life—like women, undocumented workers, asylum seekers or stateless ‘terrorists’—act as political subjects and, in the process, even secure certain rights.

For example, Peter Nyers (2003) examines the anti-deportation activism of undocumented non-citizens in Canada—how they ‘[take] space’ and ‘[take] place’ through actions like unauthorized delegation visits to immigration offices—and argues that such activism ‘is reinvigorating democratic politics today’ (1090). He points out that these ‘public acts of citizenship … came to represent a troubling anomaly to the sovereign order, one that ultimately forced a response from the Canadian and Quebec governments’ (1090).

Engin Isin and Kim Rygiel (2007) look at acts of resistance in liminal zones like Guantanamo Bay, French asylum camps and Australia’s ‘excised offshore places’. These are spaces that, echoing Arendt, ‘render subjects with an inexistent status that is without voice, without speech, without presence, without reason—in effect, without the capacity of becoming political and thus deserving of even a right to have rights’ (Isin and Rygiel, 2007: 192–193). Isin and Rygiel draw upon Rancière’s concept of dissensus to show how people act as political subjects by demanding to be counted and attempting to exercise rights that are not theirs. ⁵ Examples include:

suturing mouths, setting boats on fire in order to be picked up and brought to the Australian shores, or attempting dangerous border crossings. It is through these acts that they render themselves existent and present while simultaneously exposing the web of strategies and technologies of otherness that attempt to render them inexistent. (193)

I do not find the critique of Arendt as state-centric entirely justified, nor do all the authors drawing upon Rancière. ⁶ For example, in her examination of protests by immigrant workers in the United States, Christina Beltrán (2009) engages both Rancière’s dissensus and ‘an agonistic reading’ of Arendt to show the ‘political character of immigrant action’ (604). Nonetheless, what all these authors draw from Rancière (even where they also look to Arendt) is the conceptual room to examine the ways in which non-citizens and/or stateless persons can still be political subjects who assert some form of autonomy and emancipation. ⁷ Supporting this is insightful legal literature which highlights how non-citizens access certain rights that are supposedly reserved for citizens. Hiroshi Motomura (2010) shows that unauthorized migrants in the United States assert rights, albeit ‘oblique versions of rights that US citizens or lawful permanent residents can exercise in the same settings’ (1728). For instance, Motomura analyses how unauthorized migrants can claim workplace rights through a number of legal arguments, including the ‘citizen proxies’ argument, which reasons that excluding unauthorized migrants from workplace rights or labour organizing harms co-workers who are US citizens. Similarly, under US federal immigration law, decision-makers may consider the interests of children who are US citizens in determining whether non-citizen parents should be deported in certain very narrow legal contexts. ⁸ Motomura notes the underlying justification:

Because the presence of these noncitizens in the United States is literally outside the law, it would be dissonant—and arguably inconsistent with some ideas that underlie the rule of law—to allow unauthorized migrants to assert legal claims as if their presence were lawful. Yet these migrants live as part of U.S. society in ways that are not just economically and socially important, but also deeply rooted in American history, especially in the complex relationship between the United States and Latin America. (2010: 1726)

While it is urgent to account for the ways that migrants and asylum seekers organize themselves to claim basic rights and dignities, especially in increasingly hostile political milieux, this article considers a different thematic angle. It takes citizenship revocation for acts against national security or the public interest as a crucial lens through which to examine citizenship, statelessness and human rights. The article questions the limits of the potentially emancipating contention, espoused by Rancière and others, that disputes over who is a citizen and who a mere human are a prime site for dissensus.

The regimes of denationalization emerging after the events of 11 September 2001 and within the subsequent ‘war on terror’ have not been assessed in light of Rancière’s critique despite constituting one of the most contentious contemporary debates over the boundaries between citizen and human. Some states are radically reconfiguring these boundaries and this necessitates analysis. While the article underscores the limits of Rancière’s critique of Arendt, it also more generally troubles the statist approach to citizenship attributed to Arendt as well as the law–politics binary.

Jurisprudence, in general, may seem like a misplaced spot from which to even look for dissensus. In Disagreement, Rancière (1999) argues that juridical rule, along with economic necessity, ‘evacuate(s) politics’ (110). Like Jürgen Habermas’ (1984) critique of the juridification of everyday life, Rancière is critical of the ‘spread of the legal sphere’ to all areas of society (Rancière, 1999: 108). He understands law to be intricately connected to the police, a system that establishes the distribution of the parts and roles of a community, including through nationality legislation and techniques of denationalization. ¹⁰

Rancière, however, does not entirely preclude the role of law in dissensus and political subjectification. In referring to the 1832 trial of the revolutionary Auguste Blanqui, for example, Rancière (1999) points to how Blanqui demanded the ‘counting of the uncounted’ by insisting, despite the objection of the magistrate, that his ‘profession’ was ‘proletarian’, and stating on the record that ‘(i)t is the profession of thirty million Frenchmen who live off their labor and who are deprived of political rights’ (37). This example highlights how the legal system can be a space for appearance and for the ‘staging’ of political subjectification. Litigation can also be an avenue for generating a public record, especially for matters that deal with the military, foreign affairs and security more generally. It thus has the potential for politics by ‘[giving] rise to a meeting of police logic and egalitarian logic’ (Rancière, 1999: 32). While civil society organizations and a number of politicians fiercely contested the BNA’s 2014 amendment (discussed below) in Parliament, the streets and in the media, the courts continue to be key sites where disputes over denationalization—and citizenship writ large—play out.

The UK's deprivation of nationality regime

The evolving UK denaturalization regime tries to reconcile a fundamental inconsistency precisely in the interval between man and citizen: on the one hand, the recognition of every person’s right to nationality, and on the other hand, the sovereignty of the state to define the citizen. The UK government acknowledges the general obligation of the state not to render people stateless while simultaneously perpetuating such statelessness. In what follows I show, more generally, how this contradiction is both challenged and cemented through legislative and policy responses to the emerging case law.

Al-Jedda and Pham both address the question of whether the denationalized citizen was rendered stateless; in the former, an Iraqi-born man accused of taking part in armed attacks on coalition forces during the Iraq War, and in the latter, a Vietnamese-born man accused of plotting to bomb Heathrow International Airport in 2011. The starting point for the Supreme Court in both cases is the right to a nationality. This right—understood as synonymous with the right to citizenship—has become an important part of the international human rights regime (Jayaraman, 2016). Such provisions are contained in the Universal Declaration of Human Rights, the American Convention on Human Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women. In addition, the 1954 Convention relating to the Status of Stateless Persons (the ‘1954 Convention’) is a widely ratified convention whose definition of ‘stateless person’ is recognized under customary international law. The 1961 Convention on the Reduction of Statelessness prohibits a state from depriving a person of his or her nationality if it results in the person being stateless, unless the nationality was obtained by misrepresentation or fraud. While the ECHR contains no specific provision for the right to nationality, deprivation of nationality has been interpreted as impeding other rights such as the right to respect for private and family life. These human rights documents, particularly the 1954 Convention and the 1961 Convention are the legal and moral basis on which denationalized persons have, as discussed below, contested their deprivation of citizenship in the UK judicial system and at the ECrtHR.

In all three sets of cases, the courts start from the basic premise that statelessness has devastating consequences and that there are only limited circumstances in which the state can render someone stateless. In addition to recognizing the ‘evil of statelessness’, the Supreme Court in Al-Jedda provides a lengthy overview of the genealogy of the right to nationality, mentioning the Reich Citizenship Law from 1935 which stripped Jewish people of their citizenship, the Universal Declaration of Human Rights, the European Convention on Nationality (which the UK has not signed or ratified), and the 1954 and 1961 Conventions.

Both Al-Jedda and Pham, however, quickly shift from acknowledging the right to nationality to the technical legal analysis of whether the Secretary of State for the Home Department (the ‘Secretary of State’ or ‘Home Secretary’) was precluded under the BNA from making orders depriving Hilal Abdul-Razzaq Ali Al-Jedda and Minh Quang Pham of British citizenship because the orders would render them stateless. In Al-Jedda, the BNA (at that time) simply provided that the Secretary of State may not make an order depriving a person of citizenship status if ‘he is satisfied that the order would make a person stateless’. As discussed below, the legislation was amended to explicitly allow the Secretary of State, under certain conditions, to issue such an order even if the person was rendered stateless. In the first case, Mr Al-Jedda was born in Iraq but came to the UK as an asylum-seeker and was granted British nationality in 2000. In September 2004, he returned to Iraq and a month later was arrested by US forces. He was subsequently detained and held by British forces until 30 December 2007, without charge, on the grounds that he was a member of a terrorist group. The Secretary of State, in a letter dated 14 December 2007, notified Mr Al-Jedda that his citizenship was revoked on the basis that it was conducive to public good. The issue that the Supreme Court addressed was:

if at the date of the Secretary of State’s order it were open to the person to apply for citizenship of another state and if that application would necessarily be granted, is it her order which would make him stateless or is it his failure to make the application which would do so? (Al-Jedda Supreme Court decision: para. 1)

The Al-Jedda decision shows how Arendt’s division between the mere human and the citizen does not directly map onto denationalization since people have ambiguous and uncertain statuses, which are manipulated by both state decision-makers and the individual. For example, the Supreme Court underlines the absurdity of the Secretary of State’s argument that Mr Al-Jedda could have applied to the Iraqi authorities for restoration of his Iraqi nationality by asking whether this reasoning would extend to ‘a person’s right to obtain a nationality never previously held–such as, perhaps, a Jewish person’s right to obtain Israeli nationality or a wife’s right to obtain the nationality of her husband’ (para. 23).

The Supreme Court dedicates a considerable part of the decision to Mr Al-Jedda’s Iraqi passports. While Mr Al-Jedda said the passports he used to travel to Turkey were ‘fake’, the Secretary of State wrote to the court after the hearing (but before the judgment was released), saying that it had received additional information from Iraqi authorities that Mr Al-Jedda had applied for and received an Iraqi passport in January 2008 before traveling to Turkey. The Supreme Court refused to consider the additional information saying: ‘It is not the function of this court to resolve an issue whether an Iraqi passport was regularly obtained and therefore betokens a valid grant of nationality under Iraqi law’ (para. 29). Mr Al-Jedda’s use of passports for crossing borders and asserting (as well as also denying) his nationality both in and out of the court demonstrates how people strategically deploy categories of citizen and non-citizen. In the context where statelessness is recognized as an evil by a country’s highest court, the actions of people like Mr Al-Jedda show how claiming that one is being rendered stateless (or a mere human) is one of the few ways that one can access the right to nationality (and become a citizen). Mr Al-Jedda asserts the right to be counted as a citizen precisely because he says that he is only a human. The Secretary of State, on the other hand, refuses to count Mr Jedda because he is one of the counted somewhere else.

The UK, however, counted Mr Al-Jedda as a citizen when it was convenient to do so. For example, Mr Al-Jedda was detained without charge for over three years in Iraq by British forces. He was considered a citizen (since this occurred prior to his denationalization) and therefore was able to launch a number of proceedings against the government for his continued detention, including under the Human Rights Act. The UK, however, used Mr Al-Jedda’s status as citizen to continue to deny him rights. For example, it argued that he was not a ‘protected person’ under the Fourth Geneva Convention ‘because he is one of our citizens’. The UK government then issued a deprivation of nationality order while he was still in custody in Iraq. This emphasizes how states can provide—as well as deny—protections to individuals by defining them as citizens.

These intervals between man and human—which are temporally and spatially in flux (even for a single individual)—can also be violently closed through judicial and legislative processes. Just as the court decision reflects and further opens ambiguous spaces for possible dissensus, so too does it close and preclude such spaces. In Al-Jedda, the Supreme Court notes that the BNA simply states that an order cannot be made if it ‘would make a person stateless’. The court points out that Parliament could have added after the words ‘would make a person stateless,’ the following: ‘in circumstances in which he has no right immediately to acquire the nationality of another state.’ The court, however, notes that Parliament did not do so. Yet following the Al-Jedda decision, the UK amended the BNA to do something quite similar to what the Supreme Court suggests. The 2014 amendment to Section 40 adds a new clause to the BNA, permitting the Secretary of State to revoke a person’s citizenship even if the order makes them stateless so long as:

(a) the citizenship status results from the person’s naturalisation, (b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and (c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory. (Emphasis added)

The most recent denaturalization case to be heard by the Supreme Court, Pham, underlines the degree to which the reconciliation between the human right to nationality and the sovereignty of the state to define the citizen has become absurd. Mr Pham was born in Vietnam in 1983. While he obtained Vietnamese citizenship by birth in 1989, Mr Pham and his family successfully claimed asylum in the UK and acquired British citizenship in 1995. When he was 21 years old, he converted to Islam. Between December 2010 and July 2011, he allegedly received terrorist training in Yemen from Al Qaeda in the Arabian Peninsula and assisted with its online publication, Inspire magazine. In 2011, he was arrested at Heathrow International Airport upon returning from Yemen.

That same year, the Secretary of State issued an order depriving Mr Pham of his British citizenship, satisfied that this was conducive to the public good, along with a deportation notice (Pham Supreme Court decision: para. 3). The Special Immigration Appeal Commission (the ‘SIAC’) allowed the appeal on the ground that the order made him stateless. ¹¹ The Court of Appeal (Civil Division), however, allowed the UK government’s appeal and it was appealed up to the Supreme Court. The case turned on whether Mr Pham was a ‘stateless person’, who, according to the 1954 Convention, is ‘a person who is not considered as a national by any state under the operation of its law’ (para. 1).

The Secretary of State argued that the order did not make him stateless because he would retain his Vietnamese citizenship (para. 3). The crux of the case, however, is that the Vietnamese government declined to recognize Mr Pham as a Vietnamese citizen (para. 3). Mr Pham argued that Vietnamese law does not allow dual nationality and thus he lost his Vietnamese citizenship when became a British citizen (para. 5). The Secretary of State, however, argued that under the Vietnamese Nationality Law of 2008, Mr Pham had citizenship at his birth and must have still had it on the date of the deprivation order unless it had been actively taken away. There was no suggestion, however, that this happened by the date of the order. That he was not recognized by the Vietnamese government as a citizen after that date was considered immaterial. Lord Mance agreed and noted: ‘All that happened is that the Vietnamese Government has, when subsequently informed by the British Government of its intention to deport the appellant, declined to accept that he was or is a Vietnamese national’ (para. 66). As a result, the appeal was dismissed and the case was remitted to the SIAC, meaning that the SIAC would have to reconsider its decision in light of the finding that Mr Pham is a Vietnamese citizen. The SIAC upheld the deprivation order issued by the Secretary of State. The SIAC’s decision was then appealed to the Court of Appeal (Civil Division), and in July 2018 was dismissed, leaving Mr Pham without British or, in reality, any citizenship (see Pham and The Secretary of State for the Home Department [2018] EWCA Civ 2064 (‘2018 Pham Appeal’)).

The decisions of the Supreme Court and the Court of Appeal highlight the Kafkaesque absurdity of the reconciliation: the courts identify Mr Pham as a Vietnamese citizen while simultaneously acknowledging that Vietnam—the only country with the authority to grant Vietnamese citizenship—refuses to recognize him as a citizen. Both courts identify this tension but explain it through the technical terms ‘de jure stateless’ and ‘de facto stateless’. According to the Court of Appeal (and cited by the Supreme Court): ‘If the relevant facts are known and on the basis of those facts and the expert evidence it is clear that under the law of a foreign state an individual is a national of that state, then he is not de jure stateless. If the Government of the foreign state chooses to act contrary to its own law, it may render the individual de facto stateless.’ (Pham Supreme Court decision: para. 19; B2 v Secretary of State for the Home Department [2013] EWCA Civ 616: para. 92). Based on the finding of de facto statelessness (rather than de jure statelessness), the courts hold that Mr Pham is able to become a Vietnamese citizen. The fact that Vietnam refused to grant him citizenship is legally immaterial.

In this way, the Supreme Court and Court of Appeal rely on international human rights treaties—which exist to prevent statelessness—in order to render someone effectively stateless. First, the Court of Appeal argues that it is on the basis of ‘respect for the rule of law’ that the court must follow the narrow interpretation of the 1954 Convention’s definition of ‘stateless person’. ^{1 2} The courts find that since the 1954 Convention and the BNA are limited to the de jure stateless, they are required to ‘respect the rule of law and cannot characterise the individual as de jure stateless’ (para. 19).

In addition, the courts draw upon United Nations High Commissioner for Refugees guidelines and other international documentation that prohibit states from refusing to recognize a person as a national. While the intent of these documents is to ensure that states recognize citizens so that people can acquire an ‘effective nationality’, the courts use these interpretations to deprive Mr Pham of his British nationality and thereby render him de facto stateless. The definitional divide between de jure and de facto statelessness, however, is not meaningful for Mr Pham. Nor is it ‘legally productive’ as scholars have suggested in other circumstances (Kubal, 2020). As Lord Sumption states in the Supreme Court decision, Mr Pham’s ‘only alternative nationality (Vietnamese) is one with which he has little historical connection and seems unlikely to be of any practical value even if it exists in point of law’ (Pham Supreme Court decision: para. 109). Lord Sumption nonetheless agrees that the Home Secretary’s decision did not leave Mr Pham stateless and thus the appeal should be dismissed (Supreme Court decision: para. 102). Pham and Al-Jedda show that while judicial proceedings expose inconsistencies in the laws and logic employed to revoke citizenship, courts try to reconcile those gaps. In doing so, they highlight further ambiguities and contradictions. Yet they also reason away many of those potentially politically animating tensions.

The UK’s denationalization regime further limits dissensus through its spatial control of the denationalization process. While the UK government has refused to make public the number of people who were already abroad when they received deprivation orders, news agencies and non-governmental organizations have argued that there is a general practice of issuing denationalization orders while the targeted person is outside the UK’s jurisdiction. According to Rancière (2010), politics ‘has no proper place nor any natural subjects’ (39). Thus, for him, dissensus does not have to be confined within the boundaries of state borders. However, K2 and Al-Jedda highlight how borders impact people’s ability to contest their denationalization and limit the modes of subjectification. State borders effectively erase the space for appearance through this modern-day banishment. They also curtail an individual’s ability to contest the deprivation of citizenship. A prime example is the ECrtHR case K2. The applicant in this case was born in Sudan but came to the UK as a child, becoming a naturalized British citizen in 2000. However, in 2009, after being arrested and charged with public order offence, he left the UK and went to Sudan. In 2010, while still abroad, he received notification of the revocation order. K2 argued that he was denied the opportunity to effectively participate in the legal proceedings challenging the order because of his exclusion from the UK. In particular, he claimed that communicating with his lawyers, who were in the UK, would put him at risk of harm from Sudanese authorities who he feared had been informed that he was a terrorist suspect and thus subject to surveillance (ECrtHR decision: para. 26).

While the ECrtHR rejected this claim because K2’s ‘fears about his communications being intercepted were unfounded’ and because the ECHR ‘cannot be interpreted so as to impose a positive obligation on States to facilitate the return of every person deprived of citizenship in order to pursue an appeal against that decision’, the decision shows the limitations that people face in contesting their categorization by states (para. 57). For denationalized persons like K2, exchanges with their lawyers or advocates in the UK may expose them to additional physical and legal risks such as being deemed terrorists by other countries. Moreover, contesting their denationalization through other spheres, such as raising awareness of their claim through the media, may also put them at risk for such targeting.

The Supreme Court and the ECrtHR, however, reject the spatial aspects of the case. In both Al-Jedda and K2, the courts point out that the applicants themselves voluntarily left the country. In K2, for example, the applicant argued that he was discriminated against under the ECHR in two ways: first, that he was treated differently from British citizens considered a threat to national security who did not have a second nationality; and second, that he was treated differently from non-national residents who faced deprivation orders while still in the UK. The ECrtHR declined to address the crucial first complaint on procedural grounds. The second basis of alleged discrimination was also rejected. The Court of Appeal and ECrtHR stated that the reason the applicant had to conduct his appeal from outside the UK (rather than being able to return and pursue it from within the country) was not based on the Secretary of State’s decision to exclude him, but rather his own decision to ‘flee the country’ (ECrtHR decision: para. 60). He left the country, however, without the knowledge that his citizenship was going to be revoked and that he would be barred from returning to the UK.

Pham illustrates another way that denationalization regimes limit political subjectivity through the control of territorial borders. The applicant received his denaturalization order while he was in the UK but in March 2015, before the UK Supreme Court had issued a decision in his appeal, he was extradited to the United States to be tried for allegedly providing material support to Al Qaeda. While British nationals are regularly extradited to the United States, stateless persons are particularly vulnerable. In May 2016, Mr Pham was convicted in the US District Court for the Southern District of New York and sentenced to 40 years in prison for a never-executed plot to construct and detonate a suicide bomb at Heathrow International Airport in 2011. With his British nationality revoked, it is highly unlikely that Vietnam will step in to assist him, especially given the country’s refusal to recognize him as a citizen and his status as a convicted terrorist.

Another recent SIAC decision drawing on Pham further highlights the constraining powers of borders. This February, the SIAC upheld the order depriving Shamima Begum—a 20-year woman from East London who travelled to Syria five years ago and married an Islamic State fighter—of her British nationality. Last February The Times of London ran a story about her after she identified herself to the publication’s war reporter at the Al Hol camp in northern Syria, saying that she was pregnant and seeking to return to Britain. Five days after the story was published, the Secretary of State for the Home Department revoked her citizenship. He also denied her permission to enter the UK to pursue the appeal. Relying on Pham, the SIAC held that she was a citizen of Bangladesh by descent despite being born in the UK and despite the foreign minister of Bangladesh declaring that she ‘has been erroneously identified as a holder of dual citizenship’ and that ‘there is no question of her being allowed to enter Bangladesh’ (cited in Addley, 2019). ^{1 3}

While a number of scholars like Isin and Rygiel (2007) contend that the ‘abject continue to act as political subjects exercising the rights they do not have’ (193) even in zones where people are reduced to bare life (like in asylum camps), in those circumstances there is a mass of excluded persons that can act in concert. ^{1 4} In denationalization regimes, especially where it involves out-of-country deprivation, the ‘group’ is not necessarily physically contained (as they are scattered to their destination countries, with most orders not publicly issued), and it is not even clear who they are. The resulting physical separation and isolation means that even ‘unorganized collective action’ like ‘practice movements’ (Eckert, 2015) makes politics, in the Rancière sense, impossible. Moreover, the evidentiary basis of their citizenship deprivation is often not even revealed to them. What does dissensus look like in this context? There are limited arenas for appearance with few opportunities to exercise the limited rights they do have, let alone assert the rights they do not have.

In the case of Mr Pham, for example, the SIAC and the Court of Appeal considered whether a deprivation order can be made where the appellant does not pose a current risk to national security. Because Mr Pham is serving a 40-year sentence in the United States, he argued that he was not a threat, and thus should not be stripped of his British citizenship. In its 2018 decision, the Court of Appeal found that ‘(t)he right to nationality is an important and weighty right’ and—gesturing to Arendt—stated that nationality ‘is properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection and so on’ (2018 Pham Appeal decision: para. 49). However, it is a right with obligations. In particular, ‘it derives from feudal law where the obligation of the liege was to protect, and the obligation of the subject was to be faithful’ (para. 49). According to the Court of Appeal, Mr Pham ‘has over a significant period of time fundamentally and seriously broken the obligations which apply to him as a citizen and put at risk the lives of others whom the Crown is bound to protect’ (para. 51). Mr Pham repudiated his obligation of loyalty, which was a legitimate basis for depriving him of his citizenship. Regardless of whether he was in practice a threat to national security, he had violated the basic tenants of citizenship and thus could be expelled from the political community.

For Rancière, the stateless can show that they are in fact a part of a political community by revealing the gap between, on the one hand, the equality and universality called for in international human rights law and, on the other hand, their position; as well as by exercising rights they do not have. Yet imagining people like Mr Pham or K2 emerging as subjects of rights strains credulity. For the duration of his prison sentence, Mr Pham’s stateless status—regardless of whether it is de jure or de facto—renders him without consular protections; after his sentence, it means he has no country to be deported to, other than perhaps, ironically, to the UK to face additional charges. ^{1 5} The ability of K2—a man whose name cannot even be revealed—to rebut the allegations of terrorism is curtailed by the potential harm that could result from such rebuttal.

Concluding remarks

The refugee, for Arendt, embodies the paradox of human rights. The plight of millions of displaced people, cast away from their political communities, often as an immediate precursor to their destruction, demonstrated to the world the catastrophic consequences of that paradox: without a political community that recognizes and protects a human as a member of that community, they remain just that, a mere human. Scholars such as Rancière question this logic, a logic that has become central to the privileging of national citizenship and statist politics. Politics exist at the point where the very division between the political and the non-political is challenged, and, for Rancière, ‘the interval between man and citizen is the operator of this re-division’ (2010: 214). By this reasoning the deprivation of nationality is a key interval. It is a space where the categories of human and citizen are configured and contested. While the refugee continues to be emblematic of denationalization, the citizen stripped of their citizenship on the basis of the ‘public good’ is another figure. Denationalization in the case of the refugee may very well be a site of dissensus (a subject for another discussion), but for the citizen stripped of citizenship it is likely not. Rather, deprivation in the latter case increasingly reflects the narrowing of rights for both the mere human and the citizen. In view of the emerging UK case law, I conclude, first, that the division between being a mere human and being a citizen is increasingly blurred in certain crucial contexts. Second, that Arendt offers a less rigidly defined subject of politics than many scholars, including Rancière, attribute to her. And third, that the UK cases underscore the continuing need for an Arendtian conceptual framework that recognizes both the persisting relevance and the serious limits of state-based citizenship. That is not to say, however, that other forms of political membership are irrelevant or insignificant—as Arendt would surely concur.

The cases clearly reflect the stakes of losing one’s citizenship and becoming stateless, de facto or otherwise. As an attorney, I have seen how legal categories and their accompanying rights have extremely significant effects on peoples’ lives and how people vigorously litigate for formal, state-generated statuses like ‘citizen’, ‘permanent resident’ and ‘Convention refugee’ while states have vigorously sought to strictly delineate those categories. Increasingly, these formal categories are foreclosed to people, with potentially devastating consequences. ^{1 6} Moreover, as Seyla Benhabib notes, refugees, minorities and stateless persons are themselves ‘special categories of human beings created through the actions of the nation-state’ (2012: 54). They are classes of people that emerge out of, and only make sense within, a world still shaped by states. ^{1 7}

The UK cases highlight the blurring of the citizen and non-citizen in the formal law as well as in the everyday application of the law and exercise of discretionary power by the state. This could be read as an expansion of what Arendt already anticipated with national minorities: that de jure membership does not necessarily guarantee rights, much less their implementation or enforcement. These changing nationality and migration regimes (encapsulated by the amended BNA) show that people do not need to be reduced to mere humans to experience the grave consequences of statelessness that Arendt (1973: 293--294) identified: the loss of government protection, the loss of their homes, and thus ‘the loss of the entire social texture into which they were born and in which they established for themselves a distinct place in the world.’ Or, as Holston and Appadurai (1996) have argued more generally, formal citizenship does not necessarily guarantee substantive rights (see also Holston, 2019). Today, an estimated two thousand foreign suspected Islamic State fighters (as well as their family members) remain detained in Syria. Media reports show that regardless of whether citizenship has been formally revoked, states have been reluctant to repatriate citizens or even provide basic assistance to them. The current UK Secretary of State for Defence, Ben Wallace, stated in response to a question about extracting British citizens from Syria that ‘I’m not putting at risk British people’s lives to go looking for terrorists or former terrorists in a failed state’ (cited in Walker and Wintour, 2019). The BBC also reported one government official as saying:

We cannot declare they are stateless, but we also said if they can be tried effectively where they are, that is good. There is no requirement for a British citizen to return to the UK if they can face justice where they are and the crimes were committed [there]. (cited in Walker and Wintour, 2019)

In addition, the law itself is blurring the lines between the non-citizen and the mere human in ways that neither Arendt nor Rancière’s concept of politics addresses. In the midst of Al-Jedda, Pham and K2, the UK Parliament passed the Counter-Terrorism and Security Act 2015 which introduces two new powers that significantly blur the distinction between citizen and non-citizen: first, the legislation allows for the seizure and retention of the passport of a British citizen suspected of leaving the UK for the purpose of a terrorism-related activity outside the UK. Second, and more dramatically, it enables the ‘temporary’ exclusion of British citizens if they are believed to be involved in terrorism-related activity outside the UK. ^{1 8} While the orders have a two-year duration, it seems they can be issued indefinitely. ^{1 9} In addition, the legislation imposes a positive duty on certain authorities, such as universities, to ‘have due regard to the need to prevent people from being draw into terrorism’ (section 26). Nowadays, one can be an ‘outlaw’ yet still have a state (see Arendt, 1973). Along with Al-Jedda, Pham and K2, the Counter-Terrorism and Security Act highlights the obscuring of the foundational distinction between the citizen and the non-citizen.

British citizenship is now subdivided into different forms of citizens. Yet everyone is a possible suspect; even citizens—including those born in the UK—may be expelled to the realm of the mere human in the name of the public good. Bridget Anderson et al (2011) argue that ‘the key feature of the modern state is that its legal authority to deport applies only to foreigners and not to citizens’ (548, emphasis added). ²⁰ This benefit has in fact changed: it no longer separates citizens from non-citizens. Thus, in general, these judicial decisions along with the legislative changes to the BNA reflect a changing view of citizenship as privilege. For example, in response to the ECrtHR’s decision in K2, the UK Home Office made a striking declaration that ‘citizenship is a privilege not a right and it is right that the home secretary can deprive an individual of their citizenship where it is believed it is conducive to the public good to do so’ (cited in Travis, 2017). This is striking because it suggests that citizenship is at the discretion of a political office. Similarly, the SIAC’s decision concerning Mr Pham highlights how citizenship, as a basic right, remains rooted in a feudal relation of loyalty between the sovereign and the subject.

The UK case law also shows the blurring of the distinction between ‘law’ and ‘politics’. It is questionable whether any legal argument or juridical principle would have made a difference in the determination of cases for people like Pham, K2 or Begum once they were politically determined—that is, recognized by officials such as the Secretary of State—to be a threat to public security. The conflation of political decision-making and legal determination is built into anti-terrorism institutions, under which these cases are determined. As Nasser Hussain (2007) notes, for example, through the establishment of new bodies like the SIAC—which was created for appeals involving closed or classified materials—there has been ‘a mixing of the traditional judicial terms of evidence and guilt with military-espionage terms of intelligence and risk’ (525, 528). These are rooted in, and perpetuate, an ‘exchange between political fears and administrative legality’ (Hussain, 2007: 531). Revocation decisions take place in contexts that are increasingly hostile towards religious minorities and immigrants. State-centric citizenship has always excluded some groups of people, like racialized Others, while welcoming others, such as transnational elites. ²¹ Policies are regularly justified by recourse to the law, and legal decisions are often justified by deference to the discretion of state decision-makers, thereby challenging any facile divide between ‘law’ and ‘politics’ in citizenship matters. For Rancière, however, this may simply confirm his argument that ‘the police’ is, after all, ‘essentially, the law, generally implicit, that defines a party’s share or lack of it’ (1999: 29). Law is not to be confused with politics (as dissensus, as rupture) even though legal forums may be the site of politics, as shown by the example of the revolutionary Auguste Blanqui.

Instead, Rancière (2011) contends that ‘there is politics when the boundary separating those who are born for politics from those who are born for the “bare” life of economic and social necessity is put into question’ (3). Although this boundary is ‘put into question’ by security and denationalization regimes, I have argued that the UK case law and legislation on citizenship revocation creates limited possibilities for politics. Such case law and legislation, however, also demonstrates that national citizenship itself has limited political and legal effects. As discussed above, people can be expelled from humanity without the formal loss of a polity. In other words, people may have their own government yet find themselves without an institution willing to guarantee their rights, or left with an increasingly narrow set of rights. While national citizenship is still significant because it offers the possibility of redress through formal institutions like courts, being a citizen in an increasing number of circumstances is not substantively different from being a mere human.