Report on United Kingdom 1.2 Ambiguity of the law Ascertaining legal rights in nationality law is not straightforward, although it is not the only opaque area of British law. While most important changes to nationality laws have been made by primary legislation, parliamentary scrutiny has varied from the intense to the relatively casual and the consequences of apparently simple changes may not be immediately apparent. For example, in 2004, seemingly by accident, the Parliament legislated to make orders for deprivation of citizenship effective instantly rather only after all rights of appeal against deprivation had been exhausted, with citizenship to be restored in the event that the appeal was successful. This apparently minor change has had a dramatic impact on those (the majority) whose citizenship is removed while they are outside the UK as, without British citizenship they are unable to enter the UK and therefore exercise their appeal rights effectively (Harvey 2014: 340; Ross 2014). In addition, statutes often permit important details to be decided with less scrutiny by regulation (secondary legislation made by Ministers, with or without the requirement that Parliament approve it overtly). Even if an Act of Parliament has been passed, it may still not be in force. Some legislation, especially that passed in a hurry or amidst media flurry, never comes into force and may ‘lie on the statute book’ or be quietly repealed later. The changes to nationality law enacted in the ss. 39-41 Borders, Citizenship and Immigration Act 2009, for example, have not been implemented but remain valid law and still could be. The usual practice is for ‘commencement orders’, which are secondary legislation made under enabling powers in the Act itself, to be used to implement new legislation so that understanding the correct position requires access to all up to date primary and secondary legislation, which is only readily ascertainable on specialist subscription databases used by lawyers to which the general public does not usually have access. Although most nationality law is now governed by statute, this often provides for discretion in decision-making. For example, s.6 of the British Nationality Act 1981 provides that, if certain conditions are met, the Home Secretary ‘may, if he thinks fit’, not ‘shall’, naturalise an individual. Laws on deprivation of citizenship due to conduct are expressed in terms of the ‘opinion’ of the Secretary of State as to the desirability of removing the individual’s citizenship. In addition, aspects of nationality law (although not immigration law) are still governed by royal prerogative, in effect, residual executive discretion. For instance, the issue of passports is still a prerogative matter (although there are plans to legislate; see 3.3 below). Immigration law, which often affects nationality entitlements, is mostly found in rules of practice which are published and subject to limited parliamentary scrutiny but which change frequently.6 In 2013, for example, the rules changed eight times. Individual officers have considerable discretion in the application of the law, and there is relatively little supervision of day to day implementation. Some of the guidance issued to decision-makers is now publicly available on government websites.7 Reasons for refusal of naturalisation are now given but that is a relatively recent development, implemented by statute in 2002 after the Court of Appeal found 6 The new rules come into effect on the date specified in them unless disapproved by parliamentary resolution within 40 days. If they are rejected (a rare occurrence), the old rules persist for 40 days while something more acceptable is found. Changes to the rules now published promptly on the relevant government website. Following the case of Alvi discussed elsewhere in this report,any rules which affect rights to enter or remain must be included in the immigration rules. http://www.ind.homeoffice.gov.uk/sitecontent/documents/policyandlaw/statementsofchanges/. 7 The nationality instructions are available at: https://www.gov.uk/immigration-operationalguidance/nationality-instructions. RSCAS/EUDO-CIT-CR 2014/1 - © 2014 Authors 3