Introduction

As we have seen in the preceding chapters, law operates on different scales, in different locales and with different functions, often in a manner that disadvantages minority populations and people from other countries. Law has been essential for the raising of additional borders during crises. In recent times it has led to global shifts in who can cross national, or even local, spatial borders because of the Covid-19 pandemic as well as numerous counter-terrorism threats. Unlike work or family migration, national security or public health emergencies are supposed to be exceptional in nature but are likely to become normalised with time. When urgent action is rushed through legislative processes and power is concentrated in the executive, the details of how those who are marginalised can be affected is often overlooked. Their situations are often purposefully aggravated by state action. The laws which derive from emergency powers tend to last far longer than the initial impetus of their origin and development (Scheppele 2003).

In times of emergency, governments usually attempt to regulate the movements and activities of people differently, depending on their legal status as citizens or non-citizens. During most emergencies, foreigners come under heightened scrutiny and restrictions. States gain greater powers over individuals’ nationality, especially in the context of removal of nationality or keeping non-nationals (and sometimes even nationals) outside nation-state borders (Blackbourn, De Londras and Morgan 2019). This means that while control over family and work migration may be both inclusive or exclusive in nature, emergency rules are wholly exclusionary and may even render citizens foreign. National security-related conduct has led to citizens being stripped of their citizenship. During public health crises, in order to contain possible infections picked up overseas, nationals have been prevented at times from returning to their home countries.

Both pandemic and national security emergency bordering are burning contemporary issues. Detention, deportation and dilution of citizenship rights (via travel restrictions or cancellation of citizenship) form features of the criminalisation of immigration (‘crimmigration’) in both instances (Stumpf 2013, 59). The first part of the chapter examines public health and the pandemic in the framework of emergency bordering before moving on to the second part which scrutinises national security and cancellation of citizenship. Both parts demonstrate how these measures have greater impact on those who are already vulnerable and marginalised and how emergency-era re-bordering reinforces inequalities in society for prolonged durations.

The pandemic and public health borders

The UK had several new legal instruments to cope with the Covid pandemic. Most were introduced as emergency provisions and then took on more durable forms as the pandemic progressed. In the UK, from the perspective of immigration control, the timing of the arrival of Covid was particularly volatile as it coincided with the transition period of Brexit (the UK’s exit from the European Union) which continued until the end of 2020 (31 December 2020). As analysed in Chapter 3, Brexit has created upheaval in the lives of many EU nationals who were residing in the UK and of British nationals living in other EU countries. In particular, the change in legal status for those affected by Brexit, from EEA nationals abroad in EU countries to third-country nationals, while the pandemic was in full swing in 2020 was a severe burden for many (Atkinson 2022). In the year ending June 2020, 260,000 EU nationals departed, while in the year ending June 2021, 190,000 EU nationals left the UK (Office for National Statistics 2022). Many left in the immediate aftermath of the first lockdown while others were stuck in limbo, through both pandemic measures and Brexit-related changes in law.

By the time Covid came to the UK it had already ravaged other countries such as Italy, and the emergency nature of the situation was apparent here. Legal action was swift in response. On 11 March 2020, the World Health Organization declared that there was a global Covid outbreak (World Health Organization 2020). On 19 March 2020 the UK government introduced emergency legislation which was given Royal Assent on 25 March as the Coronavirus Act 2020. The accompanying regulations were made under the Public Health (Control of Disease) Act 1984. The Secretary of State decided to use emergency powers to make the regulations. Full information was not available about how these regulations would operate until much later (House of Lords 2021). The regulations were not first approved by a resolution of each House of Parliament, as per the normal democratic process.

These rules impacted extensively on a range of rights under the ECHR. Lockdowns affected Article 2.1 of Protocol 4 (freedom of movement) as well as Article 8 (respect for private and family life), as the regulations made it impossible for people to visit even close relatives unless they shared the same household group (termed a bubble). Covid rules also engaged Article 11 (freedom of assembly and of association) because assemblies were banned and association between people who were not members of the same household or bubble was restricted (Joint Committee on Human Rights 2021). As schools and educational institutions were impacted, this in turn affected Article 1 of Protocol 1 (right to education). In terms of religious beliefs and practices, Article 9 (freedom of thought, conscience, and religion) was affected as Covid halted religious services and led to the closing of religious centres and places of worship. The right to marry (Article 12) was affected, as both religious and civil weddings were suspended.

A challenge to the UK’s lockdown policies was brought by businessman Simon Dolan, who brought a judicial review. Dolan submitted that the regulations imposed sweeping restrictions on civil liberties and were unlawful on three grounds. Firstly, he argued the government had no power under the Public Health (Control of Disease) Act 1984; secondly, that the regulations were unlawful applying ordinary public law principles; thirdly, he said that they violated a number of Convention rights guaranteed in domestic law under the Human Rights Act 1998 such as Articles 5 (right to liberty), 8 (right to autonomy and respect for privacy and family life), 9 (right to religious freedoms and the implied right to worship), 11 (right to assembly) and 14 (right to enjoy Convention freedoms without discrimination: women, for example, were disproportionately affected by domestic violence, which more than doubled during the lockdown). The measures also breached Articles 1 (right not to be deprived of property including business interests) and Article 2 of Protocol 1 (right to education) of the ECHR and Fundamental Freedoms.

The court refused Dolan permission to apply for judicial review, but the Court of Appeal granted permission to appeal relating to the 1984 Act. The Court of Appeal dismissed the case R (on the application of Dolan and others) v Secretary of State for Health and Social Care and Another [2020] EWCA Civ 1605 on the primary reasoning that the pandemic was a fast-moving situation, and the government was acting on expert advice in an exceptional situation (para 38). Dolan had submitted that this restriction amounted to a curfew or house arrest. The court’s response (para 92) was that there was no deprivation of liberty within the meaning of Article 5 ECHR and the criteria set out by the Strasbourg court. The court’s rationale was based on the express exceptions to Regulation 6(1) as well as the overriding exception of having a reasonable excuse.

Developments in the UK were also emblematic of global developments. Globally, the pandemic introduced sub-national bordering through quarantine zones, and it did so on an unprecedented scale. Pandemic measures created different tiers of legal status, with differential treatment for the vaccinated and not-yet vaccinated, or those fully boosted with an adequate number of shots and those who were not, age-related categories such as older at-risk people and young children without vaccines, and exemption categories based on health or belief-based reasons. Public health has been a rationale for consolidating borders and preventing entry of travellers for a long time. Safeguarding public health was a popular reason used against migration from ‘the tropics’, as was the suitability of Asians for the cold climate of Canada. When the Komagata Maru came into Canadian waters, there was concern that ‘Asiatics’ would have diseases such as hookworms, which they would bring into Canada (Wallace 2013). The NHS routinely screens for tuberculosis for UK visa applications from certain parts of the world for people who plan to stay in the UK for longer than six months.¹ Women who require TB (tuberculosis) tests are not exempt even when pregnant. Instead, they can choose an X-ray with an extra shield to protect them and their unborn child in the second and third trimesters or a sputum test (phlegm coughed up from their lungs). If they choose a sputum test there may be an extra fee, and they could wait up to eight weeks for results. Their only other option is to wait until after delivery. These measures appear extreme, as they are just screening tests and not actually about those who are symptomatic, but it may be argued that these are essential to prevent the spread of TB from high-risk areas. Historically the spread of TB in Europe and North America was linked to migration from other parts of the world.

It is likely that bordering has also been ineffective in preventing the spread of past epidemics (Wood et al. 2007; Thompson 2005). Borders did not contain smallpox outbreaks, plague epidemics, the 1918 influenza pandemic and other more recent infectious disease outbreaks and epidemics such as HIV/AIDS, SARS and Ebola (Dionne and Turkmen 2020). Borders made to contain people affected many and created discrimination against those already structurally disadvantaged. Dionne and Turkmen (2020) write that the patterns of violence and discrimination evident during the spread of Covid are similar to the othering of and blame against marginalised groups in the past.

During the Covid pandemic, which began in late 2019, leaders around the world restricted non-essential travel to varying degrees, some sealing off their borders entirely, to help curb the spread of the virus by regulating both entry and exit of people. This was in line with other measures to prevent the spread of the virus from person to person contact such as school closures, workplace closures, cancellation of public events, restrictions on public gatherings, closures of public transport, stay-at-home requirements, public information campaigns, contact tracing, restrictions on internal movements and international travel controls including border closures, partial travel restrictions, entry or exit screening and quarantine of travellers. Face coverings and taking vaccines were at first optional in many places but soon many governments made these mandatory. For public transport and travel it became compulsory to have records of vaccination (popularly known as ‘covid passports’). Entry/exit screening (for example, temperature measurement, health questionnaire, thermography, laboratory tests and/or follow-up quarantine or tracking) was implemented at airports, ports, land borders and train stations. Quarantine/isolation of travellers from affected regions (at borders, at designated institutions or at home) was also important as a protective measure. These measures were augmented with technology (such as digital tracking and e-borders). The Covid legal framework was confusing for ordinary people who were unclear at times about what was a legal requirement or obligation and what was just public health advice.

Travel restrictions (that is, varying levels of travel reductions) between countries and between regions and large cities within countries) as well as travel bans (suspension of flights, ground crossing, ship itineraries, refusal of entry or travel and visa suspension/denial) between countries, and between regions and large cities within countries, were commonplace during the pandemic. Restrictions later changed into travel ‘bubbles’ and corridors between some countries which were considered to have similar levels of infection, and which negotiated safe travel within their regions. The measures attempted to identify outsiders who were seen as potential agents for the spread of disease. But migrant populations with family elsewhere were struck especially hard as they were unable to travel to their loved ones and often felt additional anxiety about the well-being of their relatives and friends elsewhere, especially in parts of the world with less access to vaccines. There was also an inability to attend funerals and be with family and friends when they were ill or dying in foreign countries. It has been argued by scholars that these borders were not effective and prevented close cooperation between nations on disease control (Grépin et al. 2023). The UK Home Office reports that, ‘There were an estimated 30.2 million passenger arrivals in 2021 (including returning UK residents), around a quarter (23%) less than the previous year, due to the travel restrictions imposed as a result of the COVID-19 pandemic’ (Home Office 2022). There were concessions made by the UK Home Office for foreigners who could not leave the UK before the expiry of their visas as well as for indefinite leave holders, and other visa holders who could not return to the UK because of pandemic restrictions.

While borders became reified as countries started closing them to prevent the spread of Covid, applications for new nationalities started increasing. A select few rich people started moving to countries with lower levels of infection using multiple nationality as a means to gain entry. The super-wealthy even chartered planes. Popular ‘pandemic passports’ or permanent residency programmes were offered by Australia, Antigua, St Kitts and Nevis, Tuvalu, Vanuatu, Austria, Switzerland, Portugal, Cyprus, Malta and Montenegro (Arlidge 2020). All offered nationality or permanent residency in return for a direct donation to the national treasury or investments in local property or businesses. It could cost as little as $100,000 per family member in the Caribbean, rising through €1 million to €2 million ($1.1 million to $2.2 million) in Malta and Cyprus, to €7 million ($7.6 million) in Austria.

The UK was not considered a safe haven as it had a rising number of Covid cases during the pandemic and therefore its investment residency was not as popular. Australia and Austria were both popular destinations for the wealthy because of their superior health services as well as containment of Covid. Yet even in these countries there were restrictions placed on people, which reinforced borders and led to exclusions. In the next two sections I will look at the specific exclusions of citizens and foreigners in the context of Australia, which, despite being a preferred Covid destination for the super-rich, had one of the strictest Covid bordering regimes. It also shares the features of selective immigration in common with other developed countries. Australia has restrictive policies which affect asylum seekers, including being one of the first countries to introduce offshore processing of asylum seekers. In fact, Australia was one of the first countries to exclude its own citizens during the Covid pandemic, thereby demonstrating how pre-existing hard borders become further reified in times of emergencies.

Exclusion of citizens: Newman v Minister for Health and Aged Care

With a rise in the use of technology, the role of law became more invisible and the spectacle of violence in law-enforcement receded. Previously visible at the geographical borders, enforcement is displaced to points of departure or offshore to other territories to pre-empt travel. While the increased use of technology and documentation may make the experience of crossing borders more restrictive and bureaucratic in nature, it is experienced in a more hidden and insidious manner than public physical violence.

The overt exclusion of citizens is an unusual feature of emergency bordering which persists even after the immediate threat subsides. One example during the pandemic was the exclusion by Australia in 2021 of all travellers from India, including citizens of Australia (Simic and Rubenstein 2023). Anyone, including citizens, who attempted to return could be imprisoned for up to five years and be fined $50,000. Ostensibly neutral, and applicable to all, this restriction affected mainly Australians of Indian origin (the second biggest group residing in Australia after British-origin residents). The only exceptions were repatriation flights which still left thousands of Australian citizens in India, unable to return. Even those who could travel to Australia had to quarantine for fourteen days in a hotel but there were caps on international arrivals. Australia had one of the strictest pandemic regimes, but many other countries also restricted travel from India because it was greatly affected the second time that Covid became widespread (the so-called ‘second wave’ of the pandemic in 2021).

Australia has a number of legal structural preconditions which rendered its measures particularly harsh and difficult to challenge. First, it does not have an enumerated set of constitutionally guaranteed rights for citizens and, secondly, it has a federal structure which permits states and the Commonwealth (federal government) to regulate pandemic-related health/travel measures. The federal powers to regulate pandemic travel were guided by s477 of the Biosecurity Act 2015 which gave wide powers of discretion to the executive. Travel regulations also regulated outward travel by citizens and residents to ensure the quarantine system was not overwhelmed on the return of travellers from countries where the infection was intense and widespread (so-called hotspots). Yet these measures created hardship for those needing to return home or travel for urgent reasons. A key case which underlined this exclusion through re-bordering was Newman v Minister for Health and Aged Care [2021] FCA 517. Gary Newman was a seventy-three-year-old Australian citizen who had been in India since March 2020. Despite many efforts to return to Australia, he had been unable to do so, due to a scarcity of flights and cancellations. At the time that the travel ban was imposed, he was still actively looking for options to return to Australia but was barred from re-entry.

Newman challenged his exclusion with two main arguments. The first was ‘proportionality’: that the ban was invalid because the Minister had failed to comply with the criteria in s477(4) of the Biosecurity Act 2015. The second was based on the ‘principle of legality’: that even if the ban was valid, it did not extend to Australian citizens, as citizens had a fundamental right to re-enter Australia. However, by the time the case was heard the ban was lifted and the large constitutional questions remained unanswered. Hence, the federal court decision eventually did not provide much guidance on the issue of citizenship rights or the use of executive discretion in Newman but on dismissing his grounds for challenge. Indeed, the Australian courts have not had much input in assessing the pandemic-era powers of the Australian government (Walpole and Isdale 2021). Similarly, courts throughout the world have exercised immense legislative and executive discretion when assessing the proportionality of Covid restrictions. The Australian situation is perhaps a more extreme one but one in tune with other nations.

Exclusion of foreigners: Djokovic and discretion

Australia, like many other countries, was also harsh towards foreigners during the pandemic, but demonstrated perhaps the harshest levels when the most stringent measures of exclusion were put in place. While the Newman case is about citizens, the dispute over the vaccine exemption and entry of tennis star Novak Djokovic during the 2022 Australian Open is a prime example of how foreigners, even elite celebrity ones, were adversely and deeply affected by pandemic regulations. The wide discretion on exclusion exercised by executive officials meant that despite all the resources at his disposal, Djokovic was still deported for not being vaccinated against Covid and/or not having a valid exemption from requiring the vaccine (Ignovska 2022).

In 2022, the Australian Open required players to be vaccinated before participation but also devised a means of exempting those who had ‘natural immunity’. Tennis Australia granted Djokovic, then defending champion and world number one tennis player, an exemption from being vaccinated because he claimed he had already tested positive for Covid and recovered, thereby having natural immunity from the disease. However, Djokovic’s exemption was widely disbelieved, because the timing of when he had claimed to be ill had not matched when he had been seen publicly attending events. Upon arrival in Australia, Djokovic’s visa was cancelled at the airport and he was taken into immigration detention at Melbourne’s Park Hotel for several days and faced imminent deportation. The same hotel was also being used to hold asylum seekers and refugees; some had been in this hotel for years. Many had even been infected with Covid while living there. The holding of Djokovic in this manner and in such a location generated some publicity on how asylum seekers are detained in Australia and there was even some critical coverage of how Australia offshores migrants by sending them to Nauru and Papua New Guinea, to detain any asylum seekers who arrived by boat in Australia. Unlike Djokovic they have little to no resources for challenging their detention and many had spent years confined to the detention sites. In addition, their plight did not hold as much media attention as Djokovic’s clearly transient and extraordinary situation.

Djokovic, despite having all possible resources at his disposal, faced an uphill task in his appeal. He had to demonstrate that there was no rational basis for a cancellation decision, but the broad discretion from section 116(e) of the Act allowed the Minister to cancel a person’s visa if their presence ‘might be’ a risk to ‘the health, safety or good order of the Australian community’ and hence covered broad grounds for exclusion (Daly 2022). Djokovic won this appeal despite the high bar, because the minister for home affairs conceded that Border Force was unreasonable when it proceeded with cancelling Djokovic’s visa without allowing him time to contact Tennis Australia or his lawyers. The cancellation decision was quashed by the judge and hence the visa Djokovic held became valid again. This victory was short-lived however as the decision to cancel Djokovic’s visa was taken once again by another minister. The immigration minister used his personal powers (so-called ‘God Powers’) under s133C(3) of the Migration Act to re-cancel the visa (Pillai 2022). This time the reasoning was that Djokovic’s not having been vaccinated could inspire people to become anti-vaccine. In rejecting Djokovic’s appeal against the cancellation, the full bench of the federal court expressly said its decision did not reflect ‘the merits or wisdom of the decision’ but only whether it was so irrational as to be unlawful. Eventually Australia’s federal court upheld the cancellation of Djokovic’s visa, Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 397 ALR 1, and he was deported. Djokovic was unable to appeal this decision successfully as it was hard to establish this was unreasonable at a time when the vaccination drive was at its peak.

At least Djokovic obtained some reason for the decision to cancel his visa, which is more than many others who lose immigration appeals are able to do. As an island nation Australia has used wide latitude in executive discretion for protecting borders and usually ministers do not give reasoned decisions for cancellation of visas. Therefore Djokovic did make some progress in this aspect and was able to expose some of the capriciousness of the system in his high-profile challenge.

As already mentioned, Djokovic’s situation also brought into focus the situation of asylum seekers who were detained during the pandemic or even denied entry. While states have the sovereign right to regulate the entry of non-nationals, the right to seek asylum and the prohibition of returns to situations of danger are central tenets of international law. This also prohibits countries from rejecting asylum seekers at borders. The United Nations High Commissioner for Refugees (UNHCR) has repeatedly warned that measures that deny asylum seekers entry at borders are not only contrary to international law but are also not necessary to address public health risks where cooperation is more important than xenophobic isolationist policies.

Safeguarding the rights of refugees while also protecting public health, for example through testing and quarantine, and other reasonable and proportionate measures, can prevent illnesses and deaths during a pandemic, yet at the height of the emergency, nearly 100 countries initially restricted access to asylum seekers. Some states used the pandemic as a purported justification to introduce restrictive measures detrimental to the rights of refugees. Many such measures continue to be in place after the pandemic abated. In some cases, restrictive practices adopted at the height of the pandemic for public health reasons have been retained or reinforced as security measures. An example of this is Title 42 in the US which was a Covid public health restriction affecting migrants at the US–Mexico border. It expired on 11 May 2023, when the public health emergency for Covid was lifted (Carnegie Corporation 2023).

Title 42 was a public health order originally enacted under the Trump administration, which allowed US authorities to expel migrants quickly back to Mexico or, in rare cases, to their countries of origin. The Biden administration tried to lift Title 42 in spring 2022, arguing that it was no longer needed as a public health measure, had become ineffective as a deterrence tool and violated the right to apply for asylum. A court stayed the administration’s decision, based on a lawsuit filed by several Republican attorneys general, and Title 42 remained in effect for an additional year. The end of Title 42 meant a return to Title 8, which allows migrants to apply for asylum but also leads to formal deportations to country of origin for those who do not qualify, and the possibility of criminal prosecution for a second entry during a five-year period.

The Biden administration published new restrictive rules after the pandemic that required migrants to seek asylum by making an appointment at a port of entry through an online app and create a presumption of ineligibility for asylum for those who try to cross between ports of entry. It is now possible to quickly assess at the border if someone is eligible for asylum and turn away those who are not (Santana, Long and Spagat 2023). While this is a harsh set of rules, the Biden administration tried to expand some legal pathways for certain nationalities, including employment-based visas for Central Americans. A sponsorship programme for Cubans, Haitians, Nicaraguans and Venezuelans has been created as well as for Ukrainians (Castañeda and Hoeppner 2022). In many ways this is a similar approach to the special schemes in the UK which rely on visas for displaced people from Ukraine and Hong Kong for lack of a generalised legal path to asylum for most asylum seekers (see Chapters 4 and 5).

Proportionality and Covid: disproportionate effect on minority populations

The moral panic towards immigration control continued throughout the pandemic as it had for a very long time prior. Protecting public health and national security have both been part of the intent of statutes regulation asylum, immigration and nationality (Prabhat 2019). Anti-migrant policies and processes created an environment conducive to the spread of Covid, especially in migrant communities, and undermined public health efforts to contain the pandemic (Fotheringham and Boswell 2022). Migrants and ethnic minority communities are often not discrete from one another; they can be interchangeable categories or have specific life situations that differentiate them as people. While there are many migrants who are not racial or ethnic minorities, most ethnic minorities in Britain have some connection to migration whether directly or indirectly through family members and diasporic connections. Policy makers should consider their specific situations as a whole but often they overlook the intersectionality of their varied structural positions and the lived experiences of people (Mamluk and Jones 2020).

The strongest link between migration and the pandemic in the UK is arguably not about the movement of people during the pandemic, but that the NHS in the UK is heavily dependent on migrant labour. Frontline staff in the NHS comprise a high proportion of ethnic minority and foreign nationals; 14.6 per cent of NHS workers are of another nationality but many more will be British ethnic minorities who experience some similar patterns of discrimination and inequality (Baker 2023). The British Medical Association reported that in the early days of the pandemic, 94 per cent of clinicians who died due to the virus were from a BAME (Black, Asian and minority ethnic) background. In April 2021, a team at the University of Nottingham found that Black healthcare workers treating hospitalised patients during the first wave of the pandemic were more likely to have had Covid infections than their White counterparts, even if other factors like age, sex, socioeconomic background and job role were accounted for, so there was a disproportionate effect on minority ethnicity healthcare workers (Valdes et al. 2021).

While the language on Covid illness and deaths has often been about pre-existing health conditions, health does not exist in isolation from other social determinants. The Office of National Statistics figures published on 7 May 2020 revealed Black people were four times more likely to die from the virus than White people. Bangladeshi and Pakistani males were 1.8 times more likely to die from Covid than White males. These differential life statistics can perhaps be explained by pre-existing social inequalities which have been exacerbated by the hostile environment policies and austerity measures. There are several factors that affect migrant health: policies such as No Recourse to Public Funds for irregular migrants and for those with visas, right to-rent and work checks which require proof of legal status, NHS data sharing with the Home Office on immigration status of patients and NHS charging policies for foreigners, as well as poor asylum accommodation, and continued use of detention and deportation powers (JCWI 2022). The NHS clarified that vaccinations were not dependent on having an NHS number or having legal status as a migrant in the UK and were free for all. It also stated that Covid testing and treatment were free of charge for all, but follow-up treatment for any secondary or co-existing health issues would be chargeable (UK Health Security Agency 2021). These measures did not wholly support the most vulnerable during the pandemic and created uncertainty about availability of treatment. Public health and migrant rights groups warned this message did not cut through deep-rooted fears of the NHS instilled by nearly a decade of hostile environment policies in healthcare, and the ‘majority’ of undocumented migrants were unlikely to come forward and avail themselves of treatment, thereby increasing risks to their own personal health as well as to public health.

The UNHCR in 2021 reported that the pandemic increased unemployment and poverty in marginalised communities (UNHCR 2021a). Covid death rates were much higher for minority ethnicities for a variety of reason (Downes et al. 2021). Minority ethnicity and migrant populations bore disproportionate burdens of the effects of the pandemic with the least resources, in most instances, to protect themselves and to seek treatment and recover. For example, according to Shahid, nearly 50 per cent of Muslims are born outside the UK and are therefore disproportionately impacted by immigration policies which create a barrier to accessing healthcare due to surcharges or fear of deportation (Shahid 2020).

Detention

The pandemic severely affected populations in detention (Ferstman 2024). In the UK, the power to detain individuals was created by the Immigration Act 1971 as well as the Nationality Immigration and Asylum Act 2002. In the past there were no permanent detention centres in the UK. In 1973, British Airways’ predecessor, the British Overseas Airways Corporation, was perceived as struggling with efforts to detain undocumented migrants and a facility near its corporate headquarters in Harmondsworth was constructed. This has since been expanded and was followed by a series of conversions of former prison facilities or Air Force bases. Facilities are largely managed by subsidiaries of four major security companies: G4S (Group 4 Securicor), Geo, Mitie and Serco (Corporate Watch 2018). In recent times, controversial new modes of accommodation have been introduced, such as numerous hotels and a barge (the Bibby Stockholm).

The plight of people in detention can be understood through Giorgio Agamben’s (1998) formulations of the state of exception, the camp and ‘bare life’. For him, the Nazi camp is about holding ‘bare life’ (which is only a biological conception of life rather than of human flourishing). Current detention centres for migrants such as Yarl’s Wood are reminiscent of this reduction to bare life. People have been tortured, raped and rendered psychologically battered in these places and have even ended their own lives in sheer desperation. Medical Justice reports that at least thirty-five people have died in immigration detention between 2000 and 2015. In 2022, Manston Processing Centre was found to have ‘catastrophic overcrowding’ and ‘grotesque treatment’ by the UK Chief Inspector of Borders and Immigration. Manston is a former military base in Kent. It opened as a processing centre in February 2022 for arrivals to the UK in small boats as a short-term holding facility for newly arrived migrants and asylum seekers. A man died of a communicable infection there in 2022. In 2023 the Bibby Stockholm barge was used to house people awaiting the outcome of their asylum applications. An asylum seeker committed suicide on it and there was an acute sense of despair amongst others housed there (Taylor and Syal 2023).

The UK has three times more individuals in immigration detention compared to other European Union member states. In addition, unlike most European countries, the UK has not legislated a statutory upper time limit on the period that an individual can be held in immigration detention (Green 2019). Yet detention is not supposed to be within a lawless black hole. The principles that govern detention and detention conditions are set out by a leading case – R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB) – and are known as the Hardial Singh principles. In this case the judge decided that the power to detain migrants under the Immigration Act 1971 is subject to limitations imposed by the common law and include the following safeguards: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal. These principles have often been reiterated and confirmed by British courts.

During the pandemic, detainee numbers had reduced from around 32,000 in 2015 but were still high. Around 24,500 people entered immigration detention in the UK in 2021 according to a Migration Observatory report (Griffiths and Walsh 2024). There were heightened concerns about detention in the UK during the pandemic because of the risk of infection in detained populations. Detention Action (a charity) lodged legal proceedings against the Secretary of State for the Home Department (SSHD) [2020] EWHC 732 (Admin) in which they submitted an urgent interim relief application to order the release of 736 detainees whose removal was not imminent because of the global pandemic and travel restrictions around the world. They were being held in overcrowded, poorly ventilated and unclean conditions where Covid can easily flourish. The court considered the Hardial Singh principles. Although these principles are protective of the rights of potential detainees, Detention Action lost its case as the court did not think the principles were violated by the State during the pandemic and as a result detention could continue during the pandemic. However, the Home Office decided to review all detention cases after this judgment.

In Australia indefinite detention was also permitted for decades. In 2004 the highest court of the land, the Australian High Court, upheld the constitutional validity of indefinite immigration detention of a stateless man in the case of Al-Kateb v Godwin [2004] 219 CLR 562. In 2023 the High Court reversed this position and ruled in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, that indefinite detention was unlawful and unconstitutional in immigration detention. Since NZYQ the government can no longer detain people if there is no real prospect that it will become practicable to remove them from Australia in the reasonably foreseeable future (ss189 (1) and 196 (1) of the Migration Act). It is crucial for the UK also to reconsider its position on indefinite detention and follow in Australia’s footsteps.

Control of conduct: bordering through deportation

Deportation is often a choice made for foreign nationals who are found guilty of crimes, as well as people who are present without immigration permission. Section 32(5) of the UK Borders Act 2007 mandates that, unless certain circumstances apply, the Home Secretary must make a deportation order against a ‘foreign criminal’, defined in the Act as a person who has been convicted of an offence and sentenced to twelve months’ imprisonment as a result. The right of states to deport non-citizens on their territory in a lawful manner is typically seen as a power that flows from the state’s right to control immigration. The reason that indefinite detention should not be permissible in law is because immigration detention is meant to take place only for the specific purpose of imminent deportation. In the UK ‘deportation’ can refer to a range of practices that go under different terms, including ‘removal’ (a term for an administrative order to leave the state, which typically carries no appeal rights) and judicial deportation as well as self-deportation (Webber 2018). Deportation enables the state to remove those who have entered illegally, those whose permission to reside has elapsed or been withdrawn and those who are legally resident but who are breaching conditions of entry (Ruhs and Anderson 2010). Deportation must be enforced by states through the threat of actual coercion. Deportation reinforces ideals of who belongs and who does not.

Challenges to deportation are usually made on the basis of Article 8 ECHR on the right to family and private life. The landmark case of R (Razgar) v SSHD [2004] UKHL 27 sets out the standards of deportation. In Razgar, the claimant was an Iraqi asylum seeker who had already sought asylum in Germany but claimed that his return to Germany would adversely affect his mental health. The case sets out that the relevant Article 8 challenge questions are:

• Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
• If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
• If so, is such interference in accordance with the law?
• If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others?
• If so, is such interference proportionate to the legitimate public end sought to be achieved?

A case where these questions were raised was that of Mr Jimmy Mubenga, who died during his removal to Angola on a British Airways commercial flight from Heathrow to Luanda in October 2010 (Hemmings 2011). He was being removed by a private security company’s civilian staff. Following the death, three G4S ‘escorts’ were arrested and questioned by the police (Webber 2014). The prosecution case was that, handcuffed behind his back and with his head pushed down for over half an hour, Mr Mubenga was held in a position which impeded his breathing. The guards denied pushing him down, and claimed that he put himself into that position, bent over in his seat. Yet other passengers heard him calling out in distress, crying for help, saying ‘I can’t breathe’. The guards denied hearing any such cries. Three eminent medical specialists agreed at the inquest that the cause of death was cardio-respiratory failure caused by restraint. Despite the evidence, all three G4S guards were acquitted of the manslaughter charge, and Mr Mubenga’s death was not proved to be unlawful killing.

This case demonstrates the extreme use of coercive state power in deportation (Anderson et al. 2011). Citizens are not supposed to be subject to such power but in the case of the Windrush generation, many who had the right to remain in Britain were wrongly deported. Several of them had lived for decades in the UK (Williams 2020). Using such power against them made their presence in the country conditional and their membership precarious. Similarly, EU citizens have been deported in increasing numbers since Brexit referendum. The year of the Brexit referendum saw a 26 per cent increase in the number of EU citizens deported from the UK in comparison to 2015 (Migration Observatory 2025). The growth in the number of deportations has been attributed to the increasingly hostile environment targeting EU citizens in the UK (Radziwinowiczówna 2020), especially rough sleepers (Demars 2017). Deportations that happened during the pandemic were also selective, with an overrepresentation of citizens of poorer EU member states. Between April and June 2020 when Britain was hard-hit by the first Covid wave, the only chartered deportation flights headed for Europe, removing 188 EU citizens to Romania, Poland and Lithuania, as well as 97 Albanians (Radziwinowiczówna and Lewis 2021). The timing of these deportations was fundamental and demonstrated that the ‘hostile environment’ policy was undeterred by a serious global health crisis limiting travel.

Protesting against deportations has resulted in arrests and prosecutions of protestors. The ‘Stansted 15’ were one such group of protestors who were eventually found not guilty, however their case is an example of another kind of control over migration: that of preventing solidarity or support for irregular migrants. The Stansted 15 tried to stop an aircraft being used to deport people to Africa. The jet they surrounded in March 2017 had been chartered by the Home Office to transport people from UK detention centres for repatriation to Nigeria, Ghana and Sierra Leone. They cut through the perimeter fence and locked themselves together around a Boeing 767 jet. They were convicted of the intentional disruption of services at an aerodrome under the Aviation and Maritime Security Act (AMSA) 1990. The Lord Chief Justice said they ‘should not have been prosecuted for the extremely serious offence’. In February 2019, three were given suspended jail sentences, and the other twelve were handed community orders. The actions against the protestors are part of the rise of criminalisation of migrant solidarity in most of Europe. In 2022, 102 human rights defenders faced criminal or administrative proceedings in the EU for acts of solidarity with migrants (PICUM 2023). People have been criminalised for their actions, including offering assistance with an asylum application, saving people in need out at sea or in boats and providing transport, food or shelter to migrants.

National security bordering measures: cancellation of citizenship

The legal frameworks and challenges in the Covid pandemic reveal an emerging theme of exclusion from this analysis of pandemic-era bordering and some of its persistent forms. Multiple nationality holders, minority citizens and others with connections with other shores (such as asylum seekers and stateless people) were all disproportionately affected by the pandemic. Those who were already precariously placed in society were affected more than others. Perhaps this is not just limited to health-related emergency laws, as it seems to be a wider characteristic shared by different emergency laws. Another area of durable emergency framing is in national security where specific groups (mostly of minority ethnicity and religious affiliations) are often disproportionately affected.

As we have seen in asylum bordering, countries such as Australia and the UK have been ‘offshoring’ their borders and relying on technology to monitor individuals as well as pre-empt travel, based on who would be unwelcome if they posed a threat to national interests. During the pandemic, sub-national bordering became commonplace, but for national security national borders are of central importance. For the purposes of studying national bordering in the global context, I will zoom in on the specific idea of the external dimension of citizenship which involves legal recognition (both internally by one’s own country and externally by other countries). While deportation is supposed to affect only foreigners, the Windrush and Brexit examples demonstrate how insider/outsider statuses are often unclear. Citizens can also be expelled from membership and this can be seen through another use of the law: the law allowing the cancellation of citizenship.

On the world stage, citizenship enables members of a country to have secure access to the external world, for example by being able to apply for a travel document and travel permission through their nation state or through diplomatic protection of their country while situated outside of it. It also provides a right to enter from outside of a country and the right to reside without being subject to immigration control in a country. Affecting these core legal rights effectively excludes people from national borders. So far in previous chapters we have seen that the focus of behavioural control for deportation is mainly on foreigners who are excluded from national borders if they are considered a threat to law and order or national security. Reasons relating to conduct can however bring citizens into the counter-terrorism net and they can be rendered foreign if their citizenship is stripped. The mechanism of cancellation of citizenship (also known as citizenship deprivation or revocation of citizenship) is increasingly being used globally to prevent re-entry of ‘problematic’ citizens for purposes of counter-terrorism. The manner in which the legislative provisions for cancellation of citizenship are structured results in placing ethnic minority citizens at greater risk of loss of citizenship. Studying cancellation of citizenship is important as it illustrates the numerous functions of law in bordering.

The right to nationality is well protected in international law. Article 15 of the Universal Declaration of Human Rights 1948 sets out, ‘Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. Similarly, the International Covenant on Civil and Political Rights sets out in Art. 24(3) that: ‘Every child has the right to acquire a nationality’. Any state can determine under its own law who are its nationals but there are some limits on this power. One such limit is that of not making someone stateless through loss of citizenship, so as to ensure that there can be support from responsible governments to the people connected to their countries. Stateless people do not have recourse to support from any government and are especially vulnerable.

Generally, this limit applies at the point of withdrawal of citizenship. Another limit on nationality is placed at the point of acquiring citizenship, as states have some constraints on how they grant nationality. Other countries may refuse to recognise a nationality in international law if it is not based on a ‘genuine’ connection. Both of these constraints (statelessness and genuineness) have greater implications for multiple nationality holders. Both constraints (statelessness and genuineness) are conceptually linked as well. In order to decide on the extent of application of each constraint, the meaning of nationality, and how it is attached, is often evaluated by decision makers.

In the UK, the stripping of citizenship is permitted by an Act of Parliament (British Nationality Act 1981 section 40); any challenges to cancellation provisions are difficult because of Parliamentary Sovereignty (the constitutional principle that Parliament is the supreme legal authority in the UK which can create or end any law) and the discretion given by statute to the Secretary of State in recognition of executive expertise/competence in the field of national security. One possibility is however to challenge the use of discretion which is used to render a person stateless. Using this as a basis, three leading cases on citizenship cancellation are Al Jedda (Application no. 27021/08), Pham (erstwhile B2; Pham v Home Secretary [2015] UKSC 19) and Begum (Preliminary Issue: Substantive; [2020] UKSIAC SC_163_2019). The facts of these cases show a similar pattern, that of a British citizen losing their citizenship while outside the UK. In all three cases the presence of another nationality is critical for avoiding statelessness. In these kinds of cases UK courts often adopt a conflict of laws framework in order to assess the presence or absence of another nationality. Presence of another nationality would remove the risk of statelessness.

Under the 1981 Act, the Home Secretary could deprive a person of citizenship if they were satisfied that this would be conducive to the public good (s40 (2)), but not if they assessed it likely that the order would make the person affected stateless (s40 (4)). There are now new elements in this power. Previously, birth citizens could not have their citizenship taken away, but the reach of this power increased after the attacks of 11 September 2001 on the Twin Towers of the World Trade Center in New York City (referred to as 9/11). After 9/11, the Nationality, Immigration and Asylum Act 2002 rendered birth citizens subject to cancellation of citizenship powers for the first time in the UK. However, no one could be rendered stateless through cancellation for conduct at this point.

From 2015, this scenario changed in response to the number of cases where naturalised citizens stripped of British citizenship claimed they had no other surviving citizenship and would therefore be stateless if they lost their British citizenship. An amendment to the British Nationality Act 1981 changed the legal situation and enabled the government to render any naturalised citizen stateless while depriving them of their citizenship. The new subsections to Section 40 of the British Nationality Act (4A) permits cancellation for naturalised persons even at risk of statelessness, so it follows in s40 (4) that the Secretary of State may not make an order under subsection (2) if they are satisfied that the order would make a person stateless and says:

F3(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if –

(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.

Thus, the Home Secretary can now deprive British citizens of their citizenship in a few different scenarios: (1) it would be ‘conducive to the public good’ to deprive the person of their citizenship and to do so would not leave them stateless; (2) the Home Secretary is satisfied that citizenship was acquired through naturalisation and obtained fraudulently or by false representation; or (3) on ‘conducive’ grounds where citizenship was acquired through naturalisation and the Home Secretary has reasonable grounds to believe they could acquire another nationality. The Secretary of State can use these powers for all naturalised citizens, irrespective of issues of statelessness if the conduct in question is ‘not conducive to the public good’ and is ‘prejudicial to the vital interests of the country’. All they need is a reasonable belief that another nationality may be acquired.

Why was there a change to specifically target naturalised citizens and render them stateless? A stateless person is defined in Article 1(1) of the 1954 Convention on Statelessness as ‘a person who is not considered as a national by any State under the operation of its law’. The 1954 Convention, which is binding on the UK, also establishes minimum standards of treatment for stateless people in respect of a number of rights including, but not limited to, the right to education, employment and housing. A subsequent convention, the 1961 Convention, aims to prevent statelessness and reduce it over time. It requires that states establish safeguards in their nationality laws to prevent statelessness at birth and later in life.

Naturalised citizens are more likely than citizens by birth to have some other nationality and thus would be less likely to be rendered stateless, but it can be argued that in that case, there is no necessity for specifically mentioning in the legislation that naturalised citizens can be cancelled even at risk of statelessness.

The House of Lords debates on the amendment proposed that the Secretary of State should have reasonable grounds to believe the deprived persons could acquire another nationality so that people would not be rendered stateless without any safeguards in place. Adding a higher standard of conduct (‘seriously prejudicial to the vital interests’) was also considered an important means of constraining widespread statelessness (Hansard HL Deb 17 March 2014). Yet, under section 10 of the new Nationality and Borders Act 2022, the government is now allowed to strip people of citizenship without giving them notice to appeal against the measure, thereby diluting the earlier protections as people may remain unaware of their loss of nationality while outside the country (Prabhat 2021b). In this manner cancellation powers have morphed into targeted instruments of bordering effective especially against naturalised citizens and multiple nationality holders. These citizens who have links with other countries are also more likely to be of minority ethnicity.

The legal scene shifted once again when British-born Shamima Begum was stripped of her citizenship in 2019. Begum left the UK at the age of fifteen with two school friends to travel to Syria. She married an ISIL (Islamic State of Iraq and the Levant) fighter and had three children, who all died as infants. She was detained in the Al-Roj camp run by the Syrian Democratic Forces, where conditions are very poor, and is still in Syria at the time of writing. Begum wishes to return to the UK but in February 2019 the Secretary of State deprived her of British citizenship due to considerations of national security and refused her leave to enter the UK to challenge that decision. The Home Secretary removed Begum’s British citizenship, arguing that she was eligible for Bangladeshi nationality through her parents and would therefore not be rendered stateless, but this particular proceeding is not about the issue of statelessness but about whether she could enter the UK to challenge the decision to cancel her citizenship.

Begum sought leave to enter the UK so that she could pursue an appeal against this decision, but her application for leave to enter was refused. Begum challenged both the decision to deprive her of citizenship and the decision to refuse her leave to enter the UK. The Special Immigration Appeals Commission found that, as Ms Begum remains detained by the Syrian Democratic Forces in a camp, she cannot give effective instructions or take any meaningful part in her appeal. This means that her appeal cannot be fair and effective. The Court of Appeal agreed, holding that Begum should be granted leave to enter the UK so that she could pursue her appeal. The Secretary of State appealed to the Supreme Court.

In the Begum case, [2021] UKSC 7, the main right at stake before the Supreme Court was the right to a fair trial, as Begum was unable to enter the country to participate in the proceedings before the Special Immigration Appeals Commission (SIAC). Her lawyers submitted that they were unable to contact her and take instructions from her from the camps in war-torn Syria. The Supreme Court refused to let her return. It said that fair trial is subject to public safety. The Supreme Court stayed Begum’s appeal indefinitely and observed that ‘if a vital public interest – in this case, the safety of the public – makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it’. Applying this to Begum’s situation, the court suggested that

[t]he appropriate response to the problem in the present case is for the appeal to be stayed until Ms Begum is in a position to play an effective part in it without the safety of the public being compromised. That is not a perfect solution, as it is not known how long it may be before that is possible. But there is no perfect solution to a dilemma of the present kind.

The court did not focus on the nature and extent to which this right was engaged in the case and eventually decided the case on applicable standards of review (Aolain 2020; Prabhat 2023; 2021a). In the coversheet to the judgment, there is a note on which point 3 is:

The steps taken on behalf of the Secretary of State and Her Majesty’s Government to facilitate Ms Begum’s involvement in the deprivation appeal, as described in the Witness Statements of Lauren Cooper dated 12 October 2020 and 5 November 2020, shall be confidential and no party or other person shall publish or disclose the same.

Given that confidentiality, in the interests of national security, permeates each aspect which could potentially relate to the issue of fair trial, there is only limited information about future possibilities (such as steps that may have been taken or will be taken by the government). Meanwhile there were reports that a Canadian spy aided in trafficking Begum and several others to Syria, thereby raising issues of state complicity in her situation (Baker 2022).

The Home Secretary removed Begum’s British citizenship, arguing that she was eligible for Bangladeshi nationality through her parents and would therefore not be rendered stateless. Nationality acquisitions of this kind are termed ‘dormant citizenships’ by scholars (for example, Jedlicki and Lamarche 2020). The SIAC agreed with the Secretary of State and held that Shamima Begum is a citizen of Bangladesh and so would not be made stateless by being stripped of her British citizenship (Begum v Secretary of State for the Home Department [2020] All ER (D) 43; 7 February 2020). Yet, on 20 February 2019, Bangladesh issued a statement saying Begum did not have Bangladeshi nationality and would not be allowed into Bangladesh (Addley and Ahmed 2019). In May 2019, Bangladesh stated it would seek the death penalty for Begum if she ever visited Bangladesh because of her connection with terrorism.

Once again, whether a cancellation measure survives a court challenge largely depends on the text and interpretation of foreign nationality law, in this case Bangladeshi nationality provisions and case law. The Bangladeshi Citizenship Act 1951 grants individuals born outside Bangladesh a right to claim citizenship if at least one parent is a Bangladeshi citizen at the time of their birth. This approach is suspiciously like forced nationalisation as it leaves nothing to individual choice. The provision goes on to say that dual nationality is not permitted, so someone with another citizenship ‘ceases to be a citizen of Bangladesh’ if they are over twenty-one. By now Begum was over twenty-one years of age but she had been stripped of British nationality. Irrespective of a technical residual citizenship, the fact that Bangladesh says she has no claim to Bangladeshi citizenship means that she is now effectively stateless (Gjevori 2019). The Shamima Begum case is as much about the precarity of citizenship as it is about expulsion from the national community.

After protracted litigation surrounding several preliminary issues, Begum lost her appeal against cancellation at the SIAC. In Begum’s case, the preliminary issues were about the alternative nationality and about whether she could be permitted to enter the UK to be present at her appeals proceedings. Begum was stripped of her citizenship while outside the country and thus initially sought permission to enter to be present at her appeal. This permission was denied by the Home Secretary, and she litigated the impact of this decision on her ability to instruct her lawyers and participate in her trial, arguing that it violated her fair trial rights. She lost that round of litigation in 2022 when it went all the way to the Supreme Court. Only after that was the case returned to the SIAC for hearing on the substantive grounds. Yet the court found ‘credible suspicion’ that Begum had been trafficked for the purpose of sexual exploitation, as her lawyers had argued. It also found that there were ‘arguable breaches of duty’ by state authorities in having allowed her to make the journey to Syria. In its decision, the SIAC stated that the case was ‘about fundamental principles, rights and obligations’. It also said that ‘the rule of law is non-negotiable’. But ultimately, it upheld the cancellation order. This decision has survived all domestic proceedings although Begum’s lawyers are bringing it to the European Court of Human Rights for further challenges.

The Begum case and other cancellation cases take place within an opaque setting where national security trumps most other concerns. Cancellation of citizenship is easily done in the UK by a simple executive order (Home Secretary’s order). In the UK ministers are given decision-making authority based on their collective responsibility to Parliament. They are presumed to have superior knowledge and expertise. The Home Secretary appears to have a nearly unlimited degree of discretion in cancellation cases, even when human rights are at stake. There is no judicial oversight at the point of cancellation. The Home Secretary assesses what is a threat to national security and then decides whether to cancel citizenship or not.

Affected individuals do not receive an opportunity to make representations prior to the decision being made. Indeed, at times, the person affected does not even have to be notified of the order. Moreover, challenging a deprivation order is difficult. Appeals are only possible after the order comes into effect, at which point cancellation will have already taken effect. Most people are outside the country when their citizenship is cancelled and are therefore unable to attend any legal challenges to the cancellation. Even when a person does appeal, their appeal is heard in a special court (the aforementioned SIAC). The SIAC holds closed proceedings when required in the interests of national security and gives closed judgments where national security-related material is involved. Special advocates provide legal support to appellants, but they only share the gist of the case with their clients and cannot take instructions once they have had access to any sensitive material.

Apart from these hurdles for appellants, the judges ordinarily only apply a very light-touch standard of review in national security cases. However, section 6 of the Human Rights Act 1998 requires courts and tribunals to act compatibly with the rights found in the ECHR. As a result, when rights are at stake, courts usually apply the more searching proportionality analysis while reviewing ministerial discretion. They are supposed to examine whether rights were considered and attributed the appropriate weight by the decision maker. An example of how this operates is seen in immigration law where a person may challenge their deportation from the UK based on their right to a private and family life (Article 8 of the ECHR, for example: House of Lords in Huang [2007] UKHL 11 on Article 8 and proportionality). Courts try to determine through proportionality analysis whether individual rights are sufficiently protected.

While proportionality analysis is about the balance of factors, in the context of Begum’s appeal (and others like it), it ought to be possible for courts to engage in a deeper analysis of the Home Secretary’s decision making should the court have been so minded. Appellate courts (such as the SIAC) are not confined by the relatively narrow standards of review of decision making that ordinarily apply in judicial review proceedings. Instead, they can undertake what is called a ‘full merits review’ of a case. While this does not empower them to simply substitute their own views for those of the decision maker, they should examine how the rights components as well as other relevant information formed a part of the original decision. Considering this, the SIAC’s reluctance to narrow down the Home Secretary’s ministerial discretion in Begum’s case, despite serious concerns about statelessness, issues of fair trial or trafficking issues, is surprising and raises concerns.

A wider implication of Begum’s case is that anyone with any other national connection is now at greater risk of losing their British citizenship and becoming effectively stateless. The situation singles out naturalised citizens and other second-generation migrants born as British in terms of their holding a less secure citizenship status in the country. The SIAC noted in its decision that

many right-thinking people in this country’s Muslim communities (and beyond) feel that they are being treated as second-class citizens, and/or that their welcome is somehow contingent. The Commission has received a considerable body of evidence on that topic, and it raises important issues. It is not an answer to that concern to say that the Secretary of State has paid regard at a general level to inter-community relations or was given advice that the deprivation of Ms Begum was strongly supported by a majority of public opinion [para 397].

It then says that it has seen closed evidence that such an issue has been duly considered by the Home Secretary [para 398]. These contradictions cannot be explained to the public without transparency in proceedings.

Attribution of nationality, such as in the Begum case, is simply a mechanism of avoiding the creation of statelessness in the eyes of the law, while people are left stateless without any effective nationality.

An immediate implication of the Begum case is that for many, an appeal from outside the country is inaccessible. There are also many symbolic elements of cancellation, especially in Begum’s deprivation (Gjevori 2019). As mentioned before, the situation worsened in 2022, as the Borders Act 2022 has now removed the requirement to provide notice of deprivation. People are even less likely to be able to challenge cancellation of their British citizenship while overseas when they are unaware of the decision to deprive them. There are also severe consequences of loss of citizenship for individuals. For instance, some British nationals were stripped of citizenship and then killed by drone attacks (Woods and Ross 2013). The lack of transparency about citizenship stripping means there is very little data on how many people are actually losing their citizenship for national security or other reasons of conduct and how many for fraud.

The situation raises concerns for migrants who naturalised to citizen ship and other second-generation migrants born as British. In many instances migrants may not even be aware of any eligibility they may have to their parents’ countries of origin. Some South Asian countries have provided increased access to their national citizenships to descendants of their overseas nationals in order to facilitate greater links with their diaspora. Diasporic citizenship introduces a layering of citizenship rights. Sending countries/countries of origin may restrict political rights, inheritance and property rights but they usually leave open the right to return and reside (International Organization for Migration 2013). For example, dual citizens or people possessing Overseas Citizenship of India have no voting rights in Indian elections and the main benefit of holding overseas citizenship is increased travelling rights. The diaspora is a source of remittances and return migration or continued business links, so such changes incentivise continued investment in the Global South. Unlike in India, in the Philippines there are more extensive rights for the diaspora residing abroad such as voting rights, especially in recognition of their importance to the economy. The north–south differences in diasporic citizenship are also apparent. While the north, when accepting multiple nationality, has devised comprehensive rules, similar initiatives for Global South diaspora have not always been received well in economically powerful countries. In the past, European countries such as Ireland have maintained nationality links with their diaspora but now there is a rollback from such links with poorer countries (as noted in the chapter on the European Union and the rollback of Irish citizenship). Changes in nationality measures to enhance links with parental countries of origin in the Global South now place British ethnic minority nationals at higher risk of losing their British citizenship.

Cancellation and new frontiers for multiple nationality holders

Citizenship stripping demonstrates how there is a resurgence of national scrutiny over multiple nationality holders and the creation of aliens out of citizens. According to Jurgen Habermas (1996), globalisation ‘signifies transgression, the removal of boundaries and thus, a danger for the nation state which almost neurotically watches its borders’. Part of this process of being a global citizen has been the capacity to hold multiple nationalities. However, it does not necessarily indicate any decline in state sovereignty, as states have to recognise this capacity and multiple nationality holding. Britain has been very open to the retention of multiple nationalities by its citizens yet allegiance which was associated with kings and queens has now emerged as critical to nation-state belonging in law, both in cases of naturalisation and in cancellation of citizenship. Cancellation cases appear to illustrate a decreasing tolerance of multiple nationality holding (albeit in the guise of protecting against statelessness) and a further de-recognition of minority ethnicity/racialised citizens.

Questions of nationality are normally within the competence of national tribunals, and further national law determines whether nationality attaches or is lost. Dual nationality may cause practical problems which cannot be resolved if the two states adopt a strictly national attitude in the matter. The confusion from the application of multiple nationality principles and rules which increased with increasing migration and rights of nationality in different nation states led to the drafting and adoption of the 1930 Hague Convention, which sets out a multilateral approach to multiple nationality. The Hague Convention allows non-recognition so far as the rules are inconsistent with ‘international convention, international custom’ or ‘principles of law generally recognized with regard to nationality’. Nationality cannot be forced on an unwilling individual, but the convention does not cover the kind of situations of loss of citizenship for multiple nationality holders. There is also a 1963 Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality.

The idea of predominant nationality is of great importance in resolving this problem. In a hierarchy of the two nationalities of the claimant, the ranking nationality would be the principal or dominant nationality and the next in rank would be the other nationality, seen as the subsidiary nationality. A new legal concept, namely, that of effective and dominant nationality has emerged as a solution in international law but if this is only about emotive elements of citizenship it can become arbitrary in nature (Kannof 2011). Given formal legal requirements for naturalisation, it is also unlikely there are any emotive requirements for acquisition of citizenship in the UK (such as having to demonstrate patriotic fervour or allegiance in deeds and words). A determination which is being made at the point of cancellation where a person has already held a citizenship with all its connections for long, cannot be only about emotive aspects. Indeed, it is unclear why greater loyalty (or lack of disloyalty) is expected from naturalised citizens or multiple nationality holders.

The process of cancellation facilitates the further shoring up of the nation state’s borders, as jurisdiction is removed from the bodies of former citizens who are effectively expelled from the borders in direct contrast to assuming jurisdiction, as in the Calvin case on subjecthood discussed in Chapter 1. Apart from keeping people outside the country, cancellation powers make expressive statements about who does not belong. As Bosniak writes, racial subordination has distorted formally egalitarian polities to create ‘second-class citizens’ who enjoy status of citizenship but who are nevertheless denied the enjoyment of citizenship rights or ‘equal citizenship’ (Bosniak 2000, 465). Through cancellation, certain – usually non-White – populations are managed outside the borders. The symbolic effects of cancelling citizenship have created a class of permanent ‘alien citizens’ or ‘second class citizens’ who now remain subject to additional border controls. By being considered potentially ‘problematic’, such citizens are rejected from full inclusion into membership.

International law prohibits statelessness but there is a greater risk for dual nationals of deprivation as they are not rendered stateless through cancellation of their British citizenship. As different kinds of citizens are affected in different ways through citizenship stripping, and specifically because it affects people with migration connections (in other words, mostly ethnic minorities), it is likely to violate the principles of non-discrimination and equality. This may appear to be an accidental effect of stripping rather than its intention, but it violates the basic principles of equality amongst all in a nation’s citizenry. The European Convention on Nationality has explicitly provided for non-discrimination between nationals, including between nationals by birth and those who acquired nationality subsequently, but the UK has not signed up to this framework, thereby again dragging its feet on human rights that are accepted in neighbouring countries. International law to a large extent is not taken seriously in this area, and there is only lip service paid to the idea of statelessness. Instead, what we see is a view of citizenship as most protected for a mono-national British citizen by birth, whereas everyone else can be stripped of it for a wide variety of conducts. This creation of various tiers of citizenship results in a second-class citizenship (Bosniak 2006). Ngai, while studying the treatment of East Asians in the US, writes that when ethnic minority citizens continue to remain aliens over generations, they can be called alien citizens (Ngai 2000). Ngai’s work was in the context of migrants acquiring citizenship rights, but as regards cancellation the focus shifts to treating citizens as problems. The idea appears to be simply to prevent re-entry, and the restrictions act to banish people. Apart from the punitive effect of banishment, there is also the symbolic effect of such laws, which make some citizenship-holdings of lesser value than others and foster an idea of lingering foreignness.

Based on facts that are known so far, the Begum case is particularly challenging in the context of citizenship cancellation because Begum was born in the UK and had done nothing to acquire another citizenship herself. She merely had an eligibility which she had acquired through her ancestral heritage. This eligibility has been granted by a country which was cultivating relations with its diaspora. Begum could not have avoided this eligibility as it operated automatically through Bangladeshi nationality laws. This is an issue that has come up in other contexts of nationality laws when children of naturalised parents automatically acquire derivative secondary citizenships or eligibility for citizenships of their parental countries of origin. It can also come about if the state of origin refuses to recognise expatriation or derivative acquisition for their nationals, or grants one without requiring surrender of other nationalities. For example, Israel extends citizenship to foreign nationals of Jewish origin without requiring them to surrender their previous nationality. Many countries provide ‘external citizenships’ (Dumbrava 2014) or ‘compensatory citizenships’ (Harpaz 2018) to the descendants of their citizens, often to correct historical disassociations between people of similar ethnic origins. People may return through these links to their countries of ethnic origin or diasporic links in what has been called ‘ethnic return migration’ (Tsuda 2009; Kulu 2000) or ‘diasporic return’ (Olsson and King 2014; Mueller 2022). This can be driven by nostalgia and may or may not have merely a symbolic effect. For instance, these can be very contentious in regions like the former Yugoslavia or in regions of the former Soviet Union as identity projects, but mostly it may simply be a choice made by individuals to reconnect with ancestral ‘homelands’ (Waterbury 2014). Although this has been termed ‘kin-state politics’ (Waterbury 2020), that pursuit of opportunities through diasporic links is the choice of an individual rather than being one that is unilaterally imposed on them as a punishment by another state.

The nationalistic politics in these types of projects are often about neighbouring countries competing for member citizens. Taken to its extreme, such projects can become about forcing nationals of other states to accept a foreign nationality – a measure that can be about forcibly occupying a territory and enforcing an identity on its inhabitants. An example of this was when Russia occupied Crimea and made Russian citizenship automatically applicable. It became mandatory for people living there to hold Russian passports to access healthcare, housing or other necessities (Hinnant et al. 2024). In recent times, people in occupied territories in Ukraine have been similarly forced to accept Russian citizenship and even to swear oaths of allegiance. They even had to undertake to fight for Russia. Yet such measures are in direct violation of the Geneva Convention on Civilians, 1949, Article 45, which states, ‘It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power’. Some of these measures taken by Russia have been presented as welfare measures for the benefit of Ukrainian children, for example, by fast-tracking children’s citizenship if their parents are detained or if they are orphans because of the invasion. Almost 20,000 Ukrainian children have disappeared into Russia or Russian-held territories, according to the Ukrainian government, where they are given passports and adopted as Russian citizens (Burkhardt 2023). Clearly this is an extreme example of forced nationality acquisition, different from the equally extreme situation of citizenship cancellation, which forms part of the political arsenal of state power play. Yet these measures are also taken when an emergency such as war, invasion or national security threat is ongoing or imminent.

For a well-rounded picture on how nationality operates it is important to acknowledge that nationality is not just a state prerogative over an individual, but also comes with concomitant duties and responsibilities which can be imposed on the state. Cancellation appears to be a measure that absolves a nation state of its duties towards citizens, but this raises the question of who bears responsibility for these people? Provision of diplomatic protection to nationals who are in need in foreign territories is a state responsibility (Foreign, Commonwealth and Development Office 2022). Under international law the UK and other nation states can grant diplomatic protection to their citizens if it is shown that another country has committed an intentionally wrongful act against them. In such situations, if a dual/multiple nationality holder is involved, the main enquiry becomes who is the nation state responsible. The challenging scenario is where a dual national brings a claim against one of their states in their other state of nationality. Article 4 of the 1930 Hague Convention declares that ‘a State may not give diplomatic protection to one of its nationals against a state whose nationality that person possesses’. In other words, an individual traditionally cannot invoke the protection of one of their states against the other. In its 2006 Articles on Diplomatic Protection, the International Law Commission adopted a more flexible rule, which relied on a test of predominant nationality; Article 7 provides that:

A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.

In recent times, the UK Government decided to exercise diplomatic protection over Nazanin Zaghari-Ratcliffe, a dual UK-Iranian national imprisoned in Iran (and one of a number of people who have been in such a position over the past few years). Zaghari-Ratcliffe was subject to human rights abuses, such as denial of fair trial and being tortured. All diplomatic remedies had been exhausted. It was then decided that Zaghari-Ratcliffe, although a dual national, was predominantly British (Foreign, Commonwealth and Development Office 2019). Zaghari-Ratcliffe was in imprisoned in Iran from 2016, and she was eventually released only in 2022 and flown back to the UK to be reunited with her family (Farrer 2022). Her situation serves as a cautionary tale on the challenges of multiple nationality as well as the scope and limits of diplomatic protection. The suspicion with which multiple nationality holders are perceived (despite often being inadvertent nationality holders) is based on the same concerns about loyalty and allegiance as underlining the cancellation cases examined in this chapter. Perhaps there is concern about political loyalties and patriotism when there may be multiple allegiances.

Targeting multiple nationality holders for cancellation is regressive in a world where the number of people holding at least two citizenships is constantly increasing, because of increasing mobility and different nationality regimes across countries. Despite the prevalence of assessment of foreign nationality in cancellation cases, and the wider reach of cancellation powers over citizens with dual/multiple nationality, the UK has one of the least restrictive regimes in terms of permitting as many other nationalities as anyone desires. Upon acquiring other nationalities, one does not lose British nationality (Hansen 2002, 179). The Home Office does not assist other countries in enforcing prevention of double nationality (182). Historically this liberal stance to multiple nationality holding was linked to a soft power strategy for British nationality: it was considered beneficial for British nationality to remain with people even if they subsequently obtained other ones (186).

The phenomenon of dual citizenship has spread across geographic and demographic borders to become a normal status for millions of individuals and a legislative practice in approximately half the countries of the world. Several global developments and individual state changes have impacted on this trend. Regional differences in this development indicate that Asian countries have been more hesitant to allow dual citizenship than European and American countries. Despite a previously hostile stance on dual citizenship, it is clear that there has been a major shift in global attitudes toward it and that more and more countries are allowing their citizens to hold dual citizenship.

By contrast, in the 1980s very few countries allowed dual citizenship. In the past, citizenship generally coincided with an individual’s national centre of gravity (practical and affective), precisely because mobility across nations was limited and the individual had to choose sole primary residence. While some states have now changed their legislation in order to accommodate citizens abroad, others have changed their legislation in order to incorporate migrants as citizens in their country of residence in order to facilitate integration and political participation. These different aims of allowing dual citizenship can be categorised as an ‘emigrant’ or an ‘immigrant’ approach to legislation change. These terms are in no way exclusive and do not illustrate the specific paths taken to allow dual citizenship by different states. Many poorer countries strengthen diasporic connections to ensure remittances from abroad can boost their economy. Apart from the refusal to recognise expatriation by states, dual nationality may also take place at birth if there is both nationality by birth on territory (jus soli) and through blood-links (jus sanguinis) (De Padua 1985). To avoid the problem of children of citizens born abroad becoming aliens in the country of their parents’ nationality, some amount of link through descendance was added to the mix.

Multiple nationality holders may have varying degrees of foreignness (based on external bonds) which may make them less integrated in homogeneous communities. Even with inadvertent nationality holding, people may be disqualified from public office. In a key Australian case, Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon (commonly referred to as the ‘Citizenship Seven case’), the Australian High Court decided that a dual citizen, irrespective of whether they knew about their citizenship status, will be disqualified from Parliament unless they are irremediably prevented by foreign law from renouncing the foreign citizenship and have taken all steps that are reasonably required to renounce that foreign citizenship (Crock 2017).

Citizenship laws often combine ethnic, cultural or civic elements, but in practice tend to incline towards one or another (Honohan 2007). Birthright citizenship entered the common law tradition with Calvin’s Case (1608), 77 ER 377, which invoked the concept of ‘ligeance’ to legitimise the bonding of subjects to monarchs from birth (King 2007). Yet in more recent times, jus soli citizenship had been pejoratively described as accidental citizenship, for example, citizenship of individuals who were born on US territory to non-citizen parents (Nyers 2009). Nyers looks at the case of Yaser Esam Hamdi who was born in the US and was captured in Afghanistan in 2001 and designated an ‘illegal enemy combatant’ by the Bush administration. He was a birthright citizen but was detained for almost three years without charge. The United States government claimed that he was fighting with the Taliban against the US, and he was eventually released on the condition that he renounce his US citizenship and commit to travel prohibitions and other conditions. He was deported to Saudi Arabia, where he had been raised. Nyers points out that the discourse of ‘accidental citizenship’ was used for stripping Hamdi of his citizenship because an accidental citizen can be a risky one. In the past American citizens of Japanese descent were interned similarly as ‘accidental’ and enemy citizens. As mentioned in Chapter 5 on the family, such citizens are also called ‘anchor babies’, and their parents ‘birthing tourists’, because they are seen as expedient means to access the benefits of American citizenship while not really ‘deserving it’.

Irrespective of these criticisms of jus soli, people can now gain and maintain multiple nationalities. Does this make citizenship less emotive and more instrumental? Spiro argues about the importance of location and shared space (birth or naturalisation) in creating identity in citizenship regimes and adds that dual citizenship creates a slow but sure move away from nation-state membership (Spiro 2008). Perhaps easy access to citizenship devalues formal citizenship because it makes it easy to acquire citizenship without emotional stirrings. This takes away from patriotism, a fundamental concept in the global order of states. But the difference in power equation between nation states and individuals is so great, that while people may be permitted to make these choices about their state affiliations, nation states should not be permitted to arbitrarily dissociate from individual citizens. With cancellation, this is the trend that threatens individual liberties and human rights.

Conclusion

This chapter on law and emergency frameworks demonstrates how re-bordering has taken place both between, and within, nation states and regions during the global Covid pandemic and in the interests of national security. The already wide executive discretion on who enters national borders becomes even wider when a health or security emergency prevails. It is also clear that those who are already vulnerable are the ones most affected by new measures that curtail entry and movement. Taking a long view of developments in times of emergencies, it becomes evident that legal exceptionalism on the basis of public health and national security has been a recurrent theme in migration control, and not just a modern manifestation.

Law centralises discretion in times of extended emergencies, and it is difficult to identify the parameters and limitations of that discretion. It becomes protected from most legal scrutiny by others such as courts. Although proportionality can be a check on the discretionary powers of the executive in times of emergencies, states are given considerable constitutional latitude in the face of immediate crisis. The pre-emptive nature of bordering, in such circumstances, is to prevent movement and journeys, in the first place through the use of technology. If such movement still takes place, the law provides scope for further detention and deportation from national territories. This can operate to exclude both foreigners and citizens.

Offshored or externalised borders produce new categories and distinctions such as between citizens and migrants, and between different categories of migrants (refugees, economic migrants, expats) and their corresponding forms of mobility and immobility. The pandemic and citizenship-stripping in their own unique ways signal the decline of cosmopolitanism, because they both affected people with multiple loci in their lives more than they did the non-migrant populations. The pandemic also reveals how pre-existing inequalities are reified during times of emergencies. The use of technologies such as Covid passes, which formed part of the biometric database and were used at local, regional, national and global levels, indicates that law and technology will likely become further intertwined, thereby relocating borders from border checkpoints to people’s persons and nearby physical entities, or even no longer requiring the involvement of other immigration personnel in monitoring them.

When the border is an automatic and integrated entity, migrants do not need to actually move borders, and the violence of borders is internalised. Although othering occurs during both emergencies and ‘normal’ times, emergency bordering creates additional layers of ‘foreignness’ due to the nature of these threats crossing borders. Governments acquire new functions which range from the conferring or withdrawing of status, creating exceptional legal frameworks which suspend rights, the privileging of immigration powers as nation-state and executive privileges, and the confining of discretion with individuals holding power, as well as the removal of scrutiny from decision making by those in power.

Cancellation cases are increasingly used to prevent re-entry of ‘problematic’ citizens for purposes of counter-terrorism. The manner in which the legislative provisions for cancellation of citizenship are structured results in placing ethnic minority citizens at greater risk of loss of citizenship. As seen in previous chapters, the history of legislative changes to free movement of erstwhile Commonwealth citizens from the 1960s onwards as well as the juxtaposition of ‘hostile environment’ legislation and Brexit rules, already creates a process of continued colonisation over internal ethnic minority populations. The worsening inequalities of the pandemic resulted in hardened exclusions. Racialised effects could haunt future law regimes, especially should more pandemic variants or infections come back. Cancellation operates in normalised exceptionalism and absolves nation states of the responsibility for their citizens, ushering in a new way of migration control.

Far from being the archetypical post-national global movers and shakers, many multiple nationality holders have been adversely affected by conflicts of national jurisdictions and laws. These manifest in various ways, not least in their not being able to obtain diplomatic protection in certain countries and, in the case of citizenship cancellation, in their losing primary nationality. Yet, many dual nationals are either inadvertent nationality holders or wish to maintain connections of meaningful kinds to more than one country because of their life situations. In either instance, making their rights conditional comes across as a penalty imposed on some for retaining connections that transcend borders. When diasporas of the Global South, who have already experienced colonisation in the past, become subject to these new restrictions, global power inequalities are perpetuated inter-generationally through this new pattern of bordering.

While on the surface nationality appears to lose much of its relevance in a global world, the framework of ‘exceptionalism’ in national security has further extended state powers of immigration control to spill over into nationality. Cancellation takes place against a backdrop of normalised emergencies, and the law transforms citizens into foreigners, often without any right of appeal or any notice of the cancellation. Arbitrary distinctions are made between birth citizens (a mix of where people are born and how their parents link to being British) and naturalised citizens (migrants who are long-term residents and undertake the legal process to become citizens). Thus, the wide discretion exercised by the Home Secretary over cancellation cases enables the state to avoid international law duties, such as preventing trafficking, avoiding statelessness and providing a fair trial.

Counter-terrorism measures operate to create differentiated border controls, which are not so much about the location of people but which specific set of people these are and their likely affiliations. In this sense, the case of national security and its logic is different because it probes deeper into people’s conduct, and even their ideas and speech, to potentially exclude them through movable border controls. The two kinds of bordering are different in terms of national security, focussing more closely on conduct and leaving people permanently outside of borders (in some instances) while pandemic-era bordering was linked more closely to time and location. Yet the two are connected, because pandemic bordering becomes security linked at times, particularly towards the end of the pandemic.

As seen in the previous chapters, even the right to seek asylum has been eroded through various measures, such as blocking arrivals of those seeking asylum and through the denial of basic human rights and humanity. Yet all is not bleak in terms of the role of the law in these situations. Law is also used to challenge state action as being disproportionate in response to the threats. What renders most of these challenges ineffective, however, is the wide discretion given to the executive in most jurisdictions whenever an emergency framing of the law is adopted. In order to make legal scrutiny more efficacious, judicial oversight of these measures should be preserved and there should be more accountability as regards the measures that are adopted, including the provision of better data and evidence to endorse the necessity of certain steps.

Notes

1. 1.  UK Visas and Immigration (n.d.) Tuberculosis tests for visa applicants. https://www.gov.uk/tb-test-visa. Accessed 22 October 2025.