News

Nationality: naturalisation and withdrawal

As reported in (2005) Vol 19, No 2 IANL 84, the requirement for all new applicants for naturalisation as British citizens to demonstrate knowledge of both English and life in the UK came into force on 1 November 2005. One of the two means laid out for satisfying the requirement is for persons who are of ESOL standard 3 to take a test showing their knowledge of life in the UK, about which more information is now provided at the website www.lifeintheuktest.gov.uk . Candidates will have to prepare for it using the book Life in the United Kingdom: A Journey to Citizenship (The Stationery Office) which costs £9.99, while the test itself costs £34 per attempt.

In other developments related to nationality, a new clause has been added to the Immigration, Asylum and Nationality Bill that places the good character requirement on applicants who wish to register as British citizens or for any other form of British nationality. This appears in clause 55 of the Bill as it was prior to the New Year, and means the bringing closer together of the requirements for naturalisation and registration.

In clauses 53 and 54 there are new powers to deprive persons of citizenship and the right of abode respectively where it is thought to be conducive to the public good to do so. This amends the provision introduced in section 4 of the Nationality, Immigration and Asylum Act 2002, which allowed deprivation of citizenship where it is deemed that the activities of the person concerned are seriously prejudicial to the vital interests of the UK or of a British overseas territory. Clauses 53 and 54 therefore represent a considerable reduction of the threshold for deprivation and could have draconian implications. Would they, for instance, be used in cases where a criminal offence has been committed that would have led to the person being deported on public good grounds? Readers with longer memories will recall that entering a marriage of convenience has been held to furnish grounds for deportation on the same basis. Will the British partner in such a union, or in the newly recognised civil partnerships, be subject to their nationality being removed?

Asylum claims by Zimbabweans

The Asylum and Immigration Tribunal (‘AIT’), headed by Deputy President Ockelton, found in a significant determination – AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG, dated 18 October 2005 but communicated orally on 14 October – that a risk was posed to asylum seekers returned to Zimbabwe. The determination follows a long series of court and Tribunal cases in which the status of asylum seekers from Zimbabwe has been at issue.

Earlier in 2005, the AIT had found in the case of SM [2005] UKIAT 00100 that there was a risk to persons perceived to be politically active – and that decision was to have superseded all forgoing country guidance cases. However, in that case, the AIT was not as categorical about the risk to failed asylum seekers returned to Zimbabwe. In AA, on the other hand, the Tribunal was met with precisely such a case which had been awaited since an action heard by Collins J was begun in July 2005. At that time the Home Office also undertook to suspend removals to Zimbabwe. It was then decided that the Asylum and Immigration Tribunal would examine the issue of the risk to returned asylum seekers. In the background, many Zimbabweans had been on hunger strike and it was reported that despite the stoppage of removals direct to Zimbabwe, the Home Office was still pursuing returns of Zimbabweans who had arrived via other countries, notably Malawi and South Africa.

In AA, the AIT found that ‘the process by which the United Kingdom Government enforces the involuntary return of rejected asylum seekers to Zimbabwe exposes them to a risk of ill-treatment at the hands of the CIO [Central Intelligence Organisation]’ (para 167). The AIT was also critical of the Home Office’s level of monitoring of what happens to failed asylum seekers upon return, especially since there had been a fact-finding mission sent to Zimbabwe in the weeks prior to the hearing. It found (para 150) it ‘exceedingly surprising’ that with all the information and powers of investigation at the Secretary of State’s disposal, there was a failure to trace individual complainants in Zimbabwe, and a failure to provide any evidence of monitored satisfactory returns to Zimbabwe. The AIT said that the Secretary of State’s lack of interest in the process by which individuals returned to Zimbabwe are received by the Zimbabwean authorities was ‘rather alarming’ (para 155).

After the decision in AA, the Home Office tactic changed and it began to claim that the ‘no removals’ policy meant that the basis of the applicants’ claim under the 1951 UN Refugee Convention was defeated, as removal was no longer a prospect that could be relied on to found a claim. This argument was put paid to by the AIT in LK (AA applied) Zimbabwe [2005] UKAIT 00159, dated 16 November 2005. In so doing the AIT distinguished the case of GH v SSHD [2005] EWCA Civ 1182, concerning returns to Baghdad, on which the Home Office had been relying.

Memoranda of Understanding with Jordan, Libya and Lebanon

The UK Government and Jordan signed a Memorandum of Understanding allowing the deportation of citizens of the other state on 10 August 2005 (the full text of the Memorandum is available at http://news.bbc.co.uk/1/hi/uk/4143214.stm and www.statewatch.org/news/2005/aug/uk-jordan-MOU.pdf .) Negotiations initiated by the UK Government in August 2005 with Libya resulted in the two countries signing a Memorandum of Understanding on 18 October 2005. In the press release accompanying the signing of the latter Memorandum, the Home Secretary, Charles Clarke, stated that ‘MOUs signed with other foreign governments will enable us to demonstrate to the courts that the deportations of individuals to whom they apply is entirely consistent with our international obligations, and so allow those deportations to proceed’. Another similar MOU was signed by the UK with the government of Lebanon on 23 December 2005, bringing the total of such agreements to three. These bilateral agreements are part of a series being discussed with other North African and West Asian countries.

Civil partnerships

A Statement of Changes to the Immigration Rules laid on 24 October 2005 and coming into effect on 5 December 2005 has amended the existing provision for spouses and fiancés and now also covers civil partners and proposed civil partners. The effect of the changes is to accommodate civil partnerships within the immigration regime for marriage, including the requirements for certificates of approval and rules on switching.

Returns to Iraq

As with the claims for asylum made by Zimbabweans (see above), Iraqis who have claimed asylum have also faced a chequered few months, and even years, of uncertainty about their fate. The Refugee Council’s briefing of December 2005, Iraq – return and section 4 support ( www.refugeecouncil.org.uk/downloads/briefings/Briefing_Iraq_return&S4.pdf ) discusses some of the main elements of this history. It includes discussion of the background to some recent court cases in which Iraqis under threat of removal have scored some successes, while the Home Office has come in for criticism over the way in which claims by Iraqis have been handled, how some have been detained pending removal, and how others have been removed summarily with little chance of access to legal assistance. On this last issue, ILPA and its members too have had reasons to be concerned about Home Office practices. On 19 December 2005, Collins J again found cause to be critical of Home Office policy of removing some Iraqis in the middle of the weekend when there is less chance of obtaining legal assistance or access to a judge. Collins J reportedly said that ‘[f]rankly the court has got a little fed up with how the Home Office is putting these removals into practice’, questioning why it was necessary to remove people ‘about midnight in the middle of the weekend’.

(Further sources: http://news.bbc.co.uk/1/hi/uk/4544098.stm and www.timesonline.co.uk/newspaper/0,,171-1943940,00.html , both accessed 29 December 2005.)

Prakash Shah

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