3 A CLOSER LOOK AT NATIONALITY DEPRIVATION FOR ‘DISLOYALTY’ This section takes a closer look at legislation that provides for loss of nationality due to disloyalty. This is a broad category that encompasses provisions that sanction a range of behaviour or offences relating to harm to the interests or security of the state, including acts of treason or terrorism. As set out in Section 2, two-thirds of the 190 countries covered by the analysis in this report provide for this mode of deprivation of nationality in their legislation: 134 countries total, as of 1 January 2022.1 The following paragraphs offer an analysis of these provisions, guided by a series of questions: can deprivation of nationality for disloyalty lead to statelessness? Do the deprivation provisions apply to all citizens or can only certain categories of citizen be targeted? What language is used to frame the scope of the powers and how much room for interpretation – and discretion – does this give to states? Can nationality be lost automatically or by decision, and which authority holds the power to deprive? This break-down of legislative provisions enables the identification of specific patterns and lays the foundation for an evaluation of deprivation powers against international law standards such as the avoidance of statelessness, the principle of non-discrimination and the prohibition of arbitrary deprivation of nationality (see Section 5 for further details). 3.1. CAN DEPRIVATION LEAD TO STATELESSNESS? even though the Bangladeshi authorities publicly denied that.4 Another challenge is posed by potential lenient interpretations of the safeguarding provisions. For example, even though the relevant Danish provision states that citizenship cannot be revoked if the person in question would thereby become stateless, the Danish government has stated that a person will be considered not to be stateless if they are entitled to another citizenship by mere registration in another country.5 This interpretation has been criticised as it is considered to run counter to Denmark’s obligations under international law.6 In the remaining 98 countries, there is no explicit provision in place that prevents loss of citizenship due to disloyalty resulting in stateless. However, in 92 of these 98 countries, citizenship can only be lost on this ground by a decision of the authorities, which provides room for individual assessments. In some countries, such an assessment is required before deprivation of citizenship can take place. In Brazil, for example, the loss provision stipulates that “the risk of generating statelessness will be taken into account before the loss of nationality takes effect”.7 However, such an assessment does not altogether preclude states from deprivation decisions resulting in statelessness. In the remaining six countries (Angola, El Salvador, Haiti, Indonesia, Myanmar, and Sao Tome and Principe), citizenship can be lost automatically due to disloyalty. As there is no room for individual assessments in these cases, there is no adequate protection against statelessness in place. In spite of clear international norms prescribing the avoidance of statelessness,2 only just over a quarter of the countries that 3.2. CAN ANY CITIZEN BE TARGETED provide for loss of citizenship due to disloyalty expressly state FOR NATIONALITY DEPRIVATION? in their law that this may not result in statelessness – as shown in Figure 3.1.a. In these cases, it is generalIn 45 countries, equating to approximately a ly formulated either as a requirement that third of those that provide for deprivation of loss of citizenship may not make the afnationality due to disloyalty, citizenship can Suhayra Aden is an Australianfected person stateless (e.g. France) or that be lost by all categories of citizens, regardless New Zealand dual national. citizenship can only be lost if the affected of how citizenship was acquired – as shown She was born in New Zealand, person is also a citizen of another country in Figure 3.2. However, in seven of these 45 but having moved to Australia (e.g. Kosovo). The regional variation in prevcountries,8 an additional loss provision is in at the age of six, she grew up alence of safeguards against statelessness place that only covers certain categories of there. After reportedly travelling can be seen in Figure 3.1.b, which shows citizens, usually citizens by naturalisation. on her Australian passport to that European states most commonly have This generally means that the threshold for join IS, she was stripped of such safeguards in place. the loss of citizenship is lower for that parAustralian nationality. After ticular category of citizens. In Qatar, for exAden was detained by the It should be noted that these safeguardample, any citizen can lose Qatari citizenship Turkish authorities when trying ing provisions do not adequately protect for joining any group whose purpose it is to to enter that country from citizens from statelessness in all cases. For undermine Qatar or for being convicted of Syria, diplomatic incident arose example, if authorities determine whether a crime which impugns the person’s loyalbetween the Australia and New a person is also a citizen of another county to Qatar.9 However, a naturalised citizen Zealand. In this context, the try by assessing that country’s citizenship can already lose citizenship if withdrawal is New Zealand prime minister legislation without consulting the authoriconsidered to be, with sufficient supporting remarked that the country ties of that other country, divergent interjustification, in the public interest.10 “is tired of having Australia pretations may arise.3 In 2020, the British exporting its problems”. New Special Immigration Appeals Commission In two-thirds of the countries that provide Zealand eventually agreed to determined that a woman whose British citfor deprivation of nationality due to disloyadmit Aden. izenship had been revoked due to terrorist alty, the loss provisions are only applicable activities was not stateless as she was also to certain categories of citizens. This usually considered to be a citizen of Bangladesh, means that citizens by birth cannot lose their 16