The Influence of Ardent on Modern British Citizenship

In The Origins of Totalitarianism[1], Arendt ‘opened further spaces for discussions of citizenship’ by labelling citizenship the ‘Right to have Rights’ [2] (RTHRs hereafter), an idea founded on the right to belong to a ‘political community.’[3] This essay will therefore argue that Arendt’s RTHRs idea does in fact bring essential insight into the concept of British citizenship in two distinct ways, although, they are not entirely comprehensive. Firstly, Arendt’s idea proves fundamental in the protection of the stateless; ideals which the Marshallian and Romanic constellation of citizenship fail to appreciate. However, in current times, many scholars doubt the effectiveness of RTHRs insight as the fear of terrorism has resulted in tighter immigration controls, increased liberalisation of deprivation powers and British Citizenship being perceived as a ‘privilege’ rather than a ‘right’. Notwithstanding this challenge, Arendt’s idea remains insightful in a second way, by criticising the modern British concept and demanding reform.

The transformation of British citizenship

In order to evaluate the degree of insight that Arendt’s idea offers, the concept of British citizenship must first be explored. Academics have found defining citizenship a relatively straight-forward task, seeing it as a ‘legal dividing line between citizen insiders and alien outsiders.’[4] Conceptualising the British idea of citizenship, however, proves more challenging. Tyler attributes this to the complexity of ‘legal, political, social and pedagogical practices’[5] shaping Britain, whilst Mills blames to the lack of a codified constitution.[6]

Fransman[7] and Dummett,[8] on the other hand, accredit the ‘oddly undeveloped concept’[9] of British citizenship to the prolonged attention towards the Roman conception of subjecthood. Traditionally, British citizenship was rooted in Romanic ideas whereby personal security was derived from allegiance to the nation state. Such an approach curtails the meaning of British citizenship by excluding the discussion of substantive rights. Subsequently, after the struggles of the world wars, Yeatman emphasises that the Romanic account evolved to create a ‘new conception of the subject,’ one which included socio-political ideals.[10]

Indeed, T. H. Marshall provided the most ‘influential’[11] post-war concept of British citizenship in his essays Citizenship and Social Class.[12] Marshall rooted his theory in a ‘direct sense of community membership based on loyalty to civilisation.’[13] As such, citizenship ensures persons in a democratic state are ‘equal with respect to the rights and duties with which the status is endowed.’[14] In likeness to the Romanic concept of citizenship, Marshall’s use of ‘endowed’ emphasises his theory views citizenship as a privilege to be awarded, rather than an inherent entitlement. Marshall identifies these rights through a framework of progression, where civil, political and social rights are acquired cumulatively in Britain.[15] According to Marshall, civil and political rights emerged during the Eighteenth and Nineteenth Centuries.[16] However, social rights only developed in the post-war Twentieth Century during the periods of unemployment and distress.[17] Only through a ‘liberal democratic welfare state’ which guaranteed these rights, could citizenship be fully expressed.[18] Although Marshall provides insight into British citizenship, his concept is rooted in a specific period of British history when socio-economic reconstruction was imperative. In many ways, Marshall ‘perpetuates the problem’ of political inequality by relying on the ‘welfare state’.[19] As such, his theory fails to address the inequity of politics and the willingness of the executive to exclude persons from the political community; practices which Arendt directly addresses in her RTHRs idea.

RTHRs is insightful in protecting the stateless

In The Origins of Totalitarianism[20] Arendt remarks that it was only in the post-war period that ‘we became aware of the existence of a right to have rights.’[21] Indeed, Arendt contends that those who had been denied political and civil rights by the Nazis could not defend themselves with social rights as they had lost the ‘social texture in which they established for themselves a distinct place in the world.’[22] Without their ‘political status and legal personality’[23] they ceased to be human.[24] This illustrates how contrasted the rightlessness against the right-bearing citizen to determine that citizenship is the right to belong to a political community – the ‘Right to have Rights.’ In this way, unlike Marshall, her idea does not allow stateless persons to fall outside its framework; an idea which proves insightful in modern-day Britain which is continuously liberalising its deprivation powers.

Prabhat claims that in Britain, ‘nationality’ and ‘citizenship’ are inextricably intertwined, thus any change to the domestic laws will ‘reconfigure’ British citizenship.[25] Tyler supports such a hypothesis by stating that by the 1980s, the British concept of citizenship had become ‘dislocated from any redistributive ideals’ and the Marshallian idea of welfare state was replaced with ‘nationality, immigration and security.’ Indeed, the British Nationality Act 1981[26] marked a ‘pivotal moment’ in British citizenship by drastically changing who could achieve citizenship.[27] Moreover, under Section 40(2), the Secretary of State was granted the power to deprive naturalised or registered persons of their citizenship if it was ‘conducive to the public good.’[28]

Whilst some may use such ‘liberal reform’[29] of deprivation powers to insinuate Arendt’s theory has been ‘eroded,’[30] this would be incorrect. Section 40(4)[31] expressly provides that a person cannot be deprived of citizenship if the order would make them stateless; ‘statelessness’ being defined in Article 1(1) of the 1954 Convention on Statelessness[32] and prohibited by Article 8(1) of the 1961 Convention on the Reduction of Statelessness.[33] These conventions and the incorporation of Section 40(4) into domestic law demonstrates the value of citizenship, and that the State considers citizenship a right which cannot be removed. For this reason, Arendt’s idea proves fundamental in the protection of the stateless, and offers valuable insight into the domestic provisions of British citizenship law. Britain legislated twice more through the Nationality, Immigration and Asylum Act 2002,[34] and the Immigration, Asylum and Nationality Act 2006;[35] both of which included the statelessness restriction. By continuing to protect the sanctity of citizenship and preventing statelessness, the government confirms that citizenship is a guarantee of rights.[36]Such an approach contradicts the ‘blossoming of rights envisaged by Marshall,’[37] but rather supports Arendt’s RTHRs idea.

Similarly, the courts recognise the importance of citizenship. Whilst not directly discussing rights,[38] the strict prohibition of rendering someone stateless serves to illustrate that citizenship is seen as an entitlement which cannot be removed, much in line with Arendt’s RTHRs. In Pham v Secretary of State[39] the Court established that the applicant could not be stripped of his British Citizenship as it would render him stateless. Indeed, the court stated that deprivation of citizenship was a ‘radical’[40] step and emphasised the ‘fundamental importance of citizenship.’[41] Furthermore, in Al Jedda[42], rendering someone stateless was recognised as ‘evil’[43], therefore the state must remain bound by such restrictions. These judgements contradict Honig’s statement that we ‘make foreign those whom we persecute’ and instead, supports Arendt’s RTHRs.[44]

The most effective example of the insight Arendt’s RTHRs provides is the case of Abu Hamza case.[45] Despite Hamza being suspected of terrorist acts, his British citizenship could not be revoked as it would render him stateless.[46] Rather than depriving him of his citizenship, he was extradited, tried and convicted in a fair trial.[47] In this way, he was treated in a humanitarian way rather than an ‘alien in the eyes of the state.’[48] Such treatment is precisely the reason for Arendt’s RTHRs, her idea thus proves insightful in abolishing the ‘denude existence of those beyond the pale of law.’[49] Finally, the case of Hirst v United Kingdom[50] affirmed that to remove persons from the political community, even if they are ‘deviant’ prisoners, would be contrary to the fundamentals of democracy. By the ECtHR claiming that a ‘democratic state must be in favour of inclusion,’[51] Arendt’s theory is further supported.

RTHRs is insightful in criticising the modern British conception of citizenship as a ‘privilege’

Although past legislation and case law has adhered to Arendt’s theory, modern British legislation has changed to favour rendering a person stateless. A direct correlation exists between the government’s fight against suspected terrorists and the liberalisation of deprivation laws.[52] Tyler highlights that this political dimension has created the concept of citizenship as a ‘privilege’[53] where an individual citizen must demonstrate their allegiance to the state.[54] Indeed the White Paper ‘Secure Borders, Safe Haven’[55] proposed to introduce an oath of allegiance and citizenship test to make citizenship more than a ‘bureaucratic exercise.’[56] This change directly contradicts Arendt’s idea and the protection it offers.[57] In fact, it appears to support the traditional Romanic conception of Subjecthood.[58] By the government asserting that citizenship is a ‘contingent privilege’[59] and ‘not a right,’[60] they are declaring that they have the power to take it away.[61] This proves true as Parliament accordingly enacted the Immigration Act 2014[62] allowing the state to deprive a naturalised or registered person of their citizenship status even if it leaves them vulnerable to statelessness. Through this ‘fascinating if disturbing twist,’[63] the Home Secretary sought to close the “loophole” which had been discovered in the previously discussed deprivation cases.[64] Through this ‘ill-considered’[65] Act, Arendt’s idea of rights being an entitlement is contrasted with the State’s view of citizenship as a privilege.

As such, Arendt’s RTHRs now proves fundamental in challenging these contemporary views. Indeed, the cases of Hashi, Berjawi and Sakr demonstrate the State’s disregard for individual rights and supports Arendt’s claim that once citizenship is removed, there is ‘nothing sacred in the abstract nakedness of being human.’[66] Hashi lost his citizenship and was then extradited to the US without any formal proceedings.[67] More radically, Berjawi and Sakr’s citizenship was removed and they were later killed by a US drone strike.[68] Arendt’s theory is thus insightful in demonstrating that the modern British concept of citizenship fails to respect rights and proves fundamental in reasserting justice and equity. Oman,[69] Michelman[70] and Ranciere[71] would disagree and state that there is a lack of clarity over what ‘rights’ Arendt is alluding to. This essay would contend, however, that Arendt’s RTHRs is not meant to present us with a solvable puzzle, but rather offers us a concept of ‘universal purchase’[72] which can be used to challenge the liberal attitudes of citizenship and continue to demand protection for the vulnerable.[73] Although Nazi Germany proves an archetype for the involuntary loss of state membership, the British government continues to ignore such an ‘end game.’[74]

Of course, such ignorance has not been universally established. Earl Russell actively promotes citizenship as a ‘right’[75] and Shami Chakrabarti has condemned the 2014 Act by stating that ‘removing the right to have rights is a new low. Washing our hands of potential terrorists is dangerously short-sighted and statelessness is a tool of despots not democrats.’[76] Indeed Gibney agrees with such a statement stating we must be ‘realistic’ about the ‘political dangers’ of the state withdrawal of citizenship[77] whilst Macklin calls for a ‘permanent banishment of banishment.’[78] What remains clear, is that although the recent legislation has moved away from Arendt’s RTHRs, her idea still proves insightful in generating both political and academic criticism to continue the attempt to protect and understand the political issues of alienation.

Conclusion

The pluralized concept of British citizenship has expanded further than the confinements of ‘sovereignty’ and ‘welfare state’ to a modern idea of ‘Rights to have Rights.’ To conclude that Arendt’s idea does not offer insight into the British concept of citizenship would be wrong. Initially, British legislation and case law adheres to Arendt’s RTHRs, an entitlement to citizenship clearly existed and therefore her idea provided significant insight. Recently, British citizenship has been viewed in accordance with the Romanic concept of legal endowment. As such, Arendt’s RTHRs has become a modern platform for humanitarian objections to such an exclusionary and privileged concept. The current concept of citizenship being a privilege rather than a right must change; Arendt’s RTHRs will facilitate this. It is thus out of concern for the direction that Britain is progressing that this essay contends Arendt’s idea remains insightful to the British Concept of citizenship. Indeed, for citizenship to have any meaning at all, it must be something more than a tangible status which can be revoked for political reasons.

Bibliography

[1] Arendt H, The origins of Totalitarianism, (Harcourt Brace & Company, 1951)

[2] Gaventa, J. "Exploring citizenship, participation and accountability." IDS bulletin 33(2) (2002) p4

[3] Supra n1 at 37

[4] Mills B, ‘‘A privilege, not a right’: contemporary debates on citizenship deprivation in Britain and France,’ Centre on Migration, Policy and Society WP-16-130 (2016) p4

[5] Tyler, I, "Designed to fail: a biopolitics of British citizenship." Citizenship studies 14(1) (2010) p16

[6] Supra n4 at 23

[7] Fransman L, Fransman’s British Nationality Law (Haywards Heath: Bloomsbury Professional, 2011)

[8] Dummett A and Nicol A, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law, Law in Context (Weidenfeld and Nicolson, 1990)

[9] Supra n5 at 3

[10] Yeatman, A. "Rival Doctrines—the Politics of Human Rights." The Aporia of Rights. Ed. Anna Yeatman and Peg Birmingham. (Bloomsbury Academic, 2014) p223

[11] Kymlicka W and Norman W, ‘Return of the Citizen: A survey of recent work on citizenship theory’ Ethics Survey Article (1994) p354

[12] Marshall, T.H, Citizenship and Social Class and other essays (Cambridge University Press, 1950)

[13] Ibid p2

[14] Ibid p29

[15] Nasstrom S, “The right to have rights: Democratic, Not Political” Political Theory 42(5) (2014), p552

[16] Supra n12 at 27

[17] Turner B, ‘Outline of a theory of citizenship’ Sociology 24(2) (1990) p192

[18] Supra n11 at 354

[19] Supra n11 at 356

[20] Supra n1

[21] Supra n1 at 296-7

[22] Supra n1 at 296

[23] Kesby A, The Right to Have Rights (Oxford University Press, 2012) p4

[24] Entreves M, The political philosophy of Hannah Arendt (Routledge, 1994) p145

[25] Prabhat D, ‘Political context and meaning of British Citizenship: Cancellation as a National Security Measure’ Law Culture and the Humanities (2016) p5

[26] British Nationality Act 1981 <http://www.legislation.gov.uk/ukpga/1981/61> accessed 19 April 2017

[27] Supra n5 at 61

[28] British Nationality Act 1981 Section 40(2) <http://www.legislation.gov.uk/ukpga/1981/61/section/40> accessed 19 April 2017

[29]European Network on Statelessness ‘Citizenship deprivation: How Britain took the lead on dismantling citizenship’ <http://www.statelessness.eu/blog/citizenship-deprivation-how-britain-took-lead-dismantling-citizenship> accessed 9 April 2017

[30] Ismail Einashe, ‘The struggle to be British, my life as a second class citizen’ <https://www.theguardian.com/uk-news/2017/mar/02/struggle-british-life-as-second-class-citizen> accessed 21 April 2017

[31] Supra n28

[32] UNHCR Convention relating to the status of stateless person 1954 <http://www.unhcr.org/ibelong/wp-content/uploads/1954-Convention-relating-to-the-Status-of-Stateless-Persons_ENG.pdf> accessed 21 April 2017

[33] Convention on the Reduction of Statelessness 1961 <http://www.ohchr.org/Documents/ProfessionalInterest/statelessness.pdf> accessed 21 April 2017

[34] The Nationality, Immigration and Asylum Act 2002 <http://www.legislation.gov.uk/ukpga/2002/41/contents> accessed 20 April 2017

[35] Immigration, Asylum and Nationality Act 2006 <http://www.legislation.gov.uk/ukpga/2006/13/contents> accessed 20 April 2017

[36] Supra n30

[37] Supra n25 at 6-7

[38] Supra n25 at 11

[39] Pham v. Secretary of State for the Home Department, [2015] UKSC

[40] Ibid at page 23 paragraph 98

[41] Ibid at page 29 paragraph 120

[42] Al Jedda, [2013] UKSC 62

[43] Ibid at page 4 paragraph 12

[44] Honig B, ‘A legacy of Xenophobia: A Response to David Cole’s ‘Their Liberties, Our Security’ Boston Review: A political and Literary Forum (2002) <http://bostonreview.net/archives/BR27.6/honig.html> accessed 22 April 2017

[45] Abu Hamza al-Masri v SSHD, SIAC, SC/2 3 /2003.

[46]Supra n29

[47]Macklin A, ‘On producing the alien within: a reply’ in A. Macklin and R. Baubock, ‘The return of Banishment: Do the New Denationalisation Policies Weaken Citizenship’ EU working paper RSCAS (2015/14) p52

[48] Gibney M, “‘A Very Transcendental Power’: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom,” Political Studies 61(3) (2013) p638

[49] Oman N, ‘Hannah Arendt’s “Right to Have Rights” A philosophical Context for Human Security’ Journal of Human Rights, 9(3) (2010) p.279

[50] Hirst v United Kingdom (No2) (2006) 42 EHRR 41 (Grand Chamber)

[51] Ibid p59

[52] Mantu S, ‘Citizenship Deprivation in the United Kingdom Statelessness and Terrorism’ Tilburg Law Review 19 (2014) p170

[53] Lord McKay in HL Debates (23 July) 1981, c.423

[54] Supra n5 at 15

[55] Home Office, ‘Secure Borders, Safe Haven - Integration with Diversity in Modern Britain’ Policy Paper (2002)

[56] Ibid p12

[57]Scriptonite, ‘Theresa May Gifted Power to Make UK Citizens Stateless Under Draconian New Law’ < http://www.scriptonitedaily.com/2014/05/08/theresa-may-gifted-power-to-make-uk-citizens-stateless-under-draconian-new-law/> accessed 9 April 2017

[58] Supra n25 at 4

[59] Clayton G, Immigration and Asylum Law, (Oxford University Press, 2016) p99

[60] Ross A, ‘Deprivation of Citizenship: what do we know?’ Immigration, Asylum and Nationality Law, 28 (4) (2014) p316

[61] Macklin, “Citizenship Revocation: The Privilege to have Rights and the Production of the Alien,” Queen’s Law Journal 40 (2014), p53

[62] Immigration Act 2014 <http://www.legislation.gov.uk/ukpga/2014/22/contents/enacted> accessed 19 April 2017

[63] Gibney M, ‘The deprivation of citizenship in the United Kingdom: A brief History’ Immigration, Asylum and Nationality Law 28(4) (2014) p334

[64] HC Debate (2013-14) 580 col.192-193

[65] Professor Guy Goodwin-Gill, “Mr. Al-Jedda, Deprivation of Citizenship, and International Law”, (2014), paper submitted to the Joint Committee on Human Rights Found at http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rightscommittee/legislative-scrutiny-2013-14/immigration-bill/ p16

[66] Supra n1 at 299

[67] Supra 30

[68] Supra 30

[69]Supra 15 at 547

[70] Michelman F, ‘Parsing ‘A right to have rights’’ Constellations 3(2) (1996) p200

[71] Ranciere J, ‘Who is the subject of the rights of man?’ South Atlantic Quarterly 103(3) (2004)

[72] Supra n49 at 284

[73] Cane L, “Arendt on Principles, the Right to Have Rights, and Democracy: Response to Naastrom” Political Theory 43(2) (2015) p244

[74]Supra n57

[75] HL Debates (9 October) 2002 c281

[76]Supra n57

[77]Gibney ‘Beware States piercing holes into citizenship’ in A. Macklin and R. Baubock, ‘The return of Banishment: Do the New Denationalisation Policies Weaken Citizenship,’ EU working paper RSCAS (2015/14) p39

[78]Macklin and Baubock, ‘The return of Banishment: Do the New Denationalisation Policies Weaken Citizenship,’ EU working paper RSCAS 2015/14) p6