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brill.com/emil
Citizenship Deprivation as a Counterterrorism
Measure in Europe; Possible Follow-Up
Scenarios, Human Rights Infringements
and the Efect on Counterterrorism
Maarten P. Bolhuis and Joris van Wijk
Assistant Professor respectively Associate Professor, Center for International
Criminal Justice, Department of Criminal Law and Criminology, Faculty of
Law, VU University, Amsterdam, The Netherlands
m.p.bolhuis@vu.nl; j.van.wijk@vu.nl
Abstract
The departure of substantial numbers of ‘foreign ghters’ and the occurrence of ter-
rorist attacks on European soil have prompted renewed interest in citizenship depriva-
tion as a policy measure. This article aims to contribute to the debate on its utility as a
counterterrorism measure by examining recent developments in citizenship depriva-
tion legislation and its use in Belgium, France, Germany, the Netherlands and the UK;
discussing the wide array of possible scenarios that may follow after an individual is
deprived of citizenship; and analysing to what extent the various outcomes are in-
strumental in countering terrorism. It concludes that most of the outcomes are prob-
lematic from a human rights perspective, or counterproductive in the ght against
terrorism as they may cause further marginalisation and radicalisation and can play
into the hands of terrorist groups, may cause people to disappear from the radar, and
may undermine crucial international cooperation.
Keywords
citizenship deprivation – foreign ghters – counterterrorism – deportation –
statelessness – radicalisation – legal limbo
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1 Introduction
The departure of substantial numbers of ‘foreign ghters’—citizens from
European countries travelling to Islamic State (IS)-controlled territories in
Iraq and Syria—and the occurrence of terrorist attacks on European soil, have
prompted renewed interest in citizenship deprivation as a policy measure.
Especially since the fall of IS in 2019, a erce debate has emerged on what to do
with foreign ghters who are still (believed to be) in Iraq and Syria. While there
have been calls upon European states to repatriate those foreign ghters in
Kurdish and US captivity and deal with them in the domestic criminal justice
system, most European states have so far refused to bring ‘their’ foreign ght-
ers back. Rather, there are clear indications that European governments do
what is in their power to prevent foreign ghters from returning, making use
of legislative reforms that have expanded deprivation powers in recent years,
or initiating new reforms to prevent a similar situation in the future. This rep-
resents a sharp policy turn from the past decades, when European states used
expatriation with great hesitance. Apart from symbolic justications appeal-
ing to the public perception that involvement in terrorism is proof of disloyalty
to the state, politicians have used the counter-terrorism or national security
paradigm to justify the expansion of deprivation powers. However, academ-
ics and civil society have criticized the expansion of deprivation powers very
rmly. The academic discussion focuses on the compatibility of expanded
powers with international nationality and human rights law, the changing
Esbrook, L. (2016). Citizenship Unmoored: Expatriation As A Counter-Terrorism Tool,
University of Pennsylvania Journal of International Law 37(4), pp. 1273–1329, at p. 1275.
Van Waas, L. (2016). Foreign Fighters and the Deprivation of Nationality. National Practices
and International Law Implications, in: A. de Guttry et al. (eds), Foreign Fighters under
International Law and Beyond, The Hague: T.M.C. Asser Press, pp. 469–487; Fargues, E. (2017).
The revival of citizenship deprivation in France and the UK as an instance of citizenship
renationalisation, Citizenship Studies 21(8), pp. 984–998; Pillai, S. & Williams, G. (2017). The
Utility of Citizenship Stripping Laws in the UK, Canada and Australia, Melbourne University
Law Review 41, pp. 845–889.
Apart from Esbrook (2016) and Van Waas (2016), e.g. Zedner, L. (2016). Citizenship
Deprivation, Security and Human Rights. 18(2), pp. 222–242; Mantu, S. (2018). ‘Terrorist’
Citizens and the Right to Nationality. Journal of Contemporary European Studies 26(1), pp. 28–
41; Reyntjens, L. (2019). Citizenship Deprivation under the European Convention-System:
A Case Study of Belgium, Statelessness & Citizenship Review 1(2), pp. 263–282.
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perception on the concept of citizenship and its broader consequences, and
the instrumental value or utility of the measure in the ght against terrorism.
In respect of the latter, an assumption often made in political rhetoric is
that citizenship deprivation will keep the expatriated individual, who poses a
security risk, out of the country’s territory and in that way benets the national
security of the individual state. However, whether this policy measure actu-
ally contributes to countering terrorism—on the longer term and also beyond
the level of the individual state—is strongly disputed in the literature. For
example, the measure may lead to further marginalization and radicalization,
and may drive people back to terrorist groups, rather than away from them,
which may backre on the security of the individual state, as well as other
states. This article aims to contribute to the debate on the utility of citizen-
ship deprivation as a counterterrorism measure by discussing the wide array
of possible scenarios that may follow after an individual is deprived of citizen-
ship, and by analysing whether and to what extent the various outcomes are
instrumental in countering terrorism. It does so by i) examining recent devel-
opments in the scope of citizenship deprivation legislation, and its use against
individuals (allegedly) involved in terrorism, and ii) discussing what is known
about the immigration law consequences of citizenship deprivation for the
individuals concerned, as well as for the depriving state, the state of residual
nationality, and third states. It focuses on ve European countries (Belgium,
France, Germany, the Netherlands and the United Kingdom) and is based on
an extensive review of academic literature, policy documents and available
case law, and media reporting. All selected countries have a considerable num-
ber of (returned) foreign ghters, and have in the recent past been confronted
with alleged threats and actual acts of terrorism within their own borders.
E.g. Macklin, A. & Bauböck, R. (eds) (2015). The Return of Banishment: Do the New Denation-
alisation Policies Weaken Citizenship?, Working papers 2015/14, Florence: Euro-
pean University Institute; Choudhury, T. (2017). The radicalisation of citizenship deprivation,
Critical Social Policy 37(2), pp. 225–244.
Institute on Statelessness and Inclusion (2020). Citizenship stripping as a security measure—
Policy issues and the ‘efectiveness’ question, World Statelessness Report 2020, pp. 227–238, at
p. 228.
Ibid.
Choudhury (2017); Paulussen, C. (2018). Countering Terrorism Through the Stripping of
Citizenship: Inefective and Counterproductive, International Centre for Counter-Terrorism
weblog, 17 October, available at https://icct.nl/publication/countering-terrorism-through-the
-stripping-of-citizenship-inefective-and-counterproductive/.
Europol (2019). EU Terrorism Situation & Trend Report 2019 (Te-Sat), 27 June, The Hague:
Europol, available at https://www.europol.europa.eu/activities-services/main-reports/
terrorism-situation-and-trend-report-2019-te-sat, p. 30, 40.
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All of them thus have a potential incentive to increase the use of citizenship
deprivation.
Section two will discuss developments in the scope of citizenship depriva-
tion legislation, and its use against individuals (allegedly) involved in terror-
ism in recent years. Section three discusses the immigration law consequences
of citizenship revocation for the individuals concerned and especially, what
the consequences are for the ght against terrorism. In the fourth section we
conclude that the increased use of citizenship deprivation, especially against
individuals who are outside the depriving state, is not efective as a counterter-
rorism approach and is likely to create more problems than it solves.
2 Citizenship Revocation of (Alleged) Terrorists in Law and Practice
This section discusses for each of the ve countries studied the legal provisions
on citizenship deprivation in connection to acts of terrorism, relevant legis-
lative developments in recent years, and the nature and scale of citizenship
deprivation. The nal section provides a comparative analysis.
2.1 Belgium
Under Article 23 of the Code of the Belgian Nationality, only citizens who have
not obtained their citizenship from a parent or through birth can have their
citizenship annulled. Loss of citizenship must not lead to statelessness for
the individual involved. Until 2012, the sole grounds for citizenship loss were
fraud during the acquisition of citizenship and seriously falling short of the
individual’s duties as a Belgian national. Terrorist ofences could be seen to
fall under this latter ground, if these actions resulted in a threat to Belgian
security, as can be seen from sporadic executive decisions and litigation that
has occurred. From 2012, a number of changes have broadened the grounds
for citizenship deprivation in Belgium. A new Article 23/1 entered into force
in December of that year, which introduced a number of new deprivation
grounds, conditional on a judge’s approval of a request made by the pub-
lic prosecutor. These include a conviction to at least ve years in prison for
Article 23§ 1 Code of the Belgian Nationality, available at https://www.ejustice.just.fgov
.be/cgi_loi/change_lg.pl?language=nl&la=N&cn=1984062835&table_name=wet.
Unless in cases of fraud, see Art. 23§ 1–2°; 23/1 § 2 and 23/2§ 2 Code of the Belgian
Nationality.
P. Wautelet (2016). Deprivation of citizenship for ‘jihadists’. Analysis of Belgian and French
practice and policy in light of the principle of equal treatment. paper, Amsterdam:
Elsevier, p. 2, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2713742.
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specied terrorist acts, if citizenship was obtained less than ten years before
the commission of the act. In July 2015 Article 23/2 was introduced, which
moved the terrorist ofences to a separate provision, broadened the scope of
terrorist ofences covered and removed the temporal limitations regarding the
possession of Belgian citizenship. More recently, there have been attempts to
further broaden the scope by removing some of the conditions set out above,
but so far, they did not obtain sucient support in parliament, the latest at-
tempt being rejected in February 2020.
While it was possible to revoke citizenship in relation to terrorism in Belgium
already before a number of changes were implemented in the legislation from
2012, it was used only very occasionally, as noted above. Based on a search in
media reports, between 2009 and January 2020, a total of at least 21 individu-
als have lost their Belgian citizenship in relation to convictions for terrorist
activities, four of whom are women. Three individuals of Tunisian, and one of
Moroccan descent, lost their Belgian citizenship between 2009 and 2011. The
other 17 individuals lost their Belgian citizenship between November 2017 and
January 2020 and almost all are of Moroccan descent. They include four indi-
viduals who were in Belgium at the time of revocation (the latter two serving
prison sentences): ‘black widow of the jihad’ Malika el Aroud, Bilal Soughir of
Tunisian descent, Enis Sulejmani of Serbian descent, and leader of the radical
Islamist movement Sharia4Belgium Fouad Belkacem. The remaining 13 indi-
viduals are foreign ghters believed to be in Syria.
Wautelet (2016).
‘Wet tot versterking van de strijd tegen het terrorisme’ of 20 July 2015, [C-2015/09385],
Belgisch Staatsblad 05.08.2015, 49326; Wetsontwerp [draft law] of 22 June 2015, doc 54
1198/001.
Beernaert, M-A. (2015). Renforcement de l’arsenal législatif anti-terroriste: entre symboles
et prevention. Journal des tribunaux 134(40–6626), pp. 833–836; Wautelet (2016).
N-VA-voorstel over afname Belgische nationaliteit weggestemd, De Morgen, 18 February
2010,availableathttps://www.demorgen.be/politiek/n-va-voorstel-over-afname-bel
gische-nationaliteit-weggestemd.
Deze vier terroristen verloren hun Belgische nationaliteit, De Standaard, 13 June 2017,
available at https://www.standaard.be/cnt/dmf20170613_02923313.
‘Terreurimam’ uit Berchem krijgt acht jaar cel en verliest de Belgische nationaliteit, ,
12 November 2018, available at https://www.hln.be/nieuws/binnenland/-terreurimam
-uit-berchem-krijgt-acht-jaar-cel-en-verliest-de-belgische-nationaliteit~a1fdf6d9/;
Belgische rechter geeft IS-weduwen bij verstek vijf jaar cel en pakt nationaliteit af, ,
19 December 2019, available at https://www.ad.nl/buitenland/belgische-rechter-geeft
-is-weduwen-bij-verstek-vijf-jaar-cel-en-pakt-nationaliteit-af~a3ad3384/; G. Van Vlierden,
‘Zij zijn geen Belg meer: nationaliteit van zes Syriëstrijders afgepakt’, , 2 January
2020, available at https://www.hln.be/de-krant/zij-zijn-geen-belg-meer-nationaliteit-van
-zes-syriestrijders-afgepakt~a3e2a04c/.
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2.2 France
In France, the possibility to deprive a national of his or her citizenship in rela-
tion to terrorism was introduced already in 1996, in the form of Article 25 of
the Code Civil. The provision lists a number of categories of acts and crimes
that—after a conviction—could lead to citizenship deprivation, and include
convictions for acts against the fundamental interests of the nation or crimes
or ofences constituting acts of terrorism (sub 1 and 2). The deprivation
of citizenship may only be used against naturalized citizens and it may not
lead to statelessness for the individual involved. The deprivation decision is
taken by the Council of Ministers, after the individual has been informed by
the Minister of the Interior and had a chance to respond, and after consulting
the Council of State. Over the years, the provision underwent a number of
changes. In 2003 the scope of the provision was expanded to include terror-
ist acts committed up to ten years before naturalisation, while in 2006 the
temporal scope of Art. 25 Civil Code was expanded to cover crimes committed
15 years before and after the day of naturalisation.
The most recent attempts to change the provision occurred following the
November 2015 Paris attacks. Whereas Francois Hollande’s government had
previously opposed two bills extending deprivation powers to citizens who ob-
tained French nationality by birth, now the President himself called for a change
of the constitution that would extend deprivation powers to French-born citi-
zens, as long as they also held a second nationality. The bill that was proposed
in early 2016 was rejected, something that was seen as a major blow to the
Hollande government. According to Fargues, the core issue in the debate was
that the bill would lay down in the constitution the discrimination between
French dual and mono-nationals; there was not enough support to extend citi-
zenship deprivation beyond the group of naturalized citizens.
Wautelet (2016).
Art. 25 Code Civil, available (in French) at https://www.legifrance.gouv.fr/achCode
.do?cidTexte=LEGITEXT000006070721. According to Mantu (2018: 35), other grounds
are “(3) conviction for crimes considered to be crimes against the public administra-
tion (crimes committed by persons holding a public oce); (4) acts of insubordination;
and (5) engaging, for the benet of a foreign state, in acts that are incompatible with the
quality of French national and commission of acts that are prejudicial to the interests
of France”.
Art. 25 Code Civil reads: “L’individu qui a acquis la qualité de français…”, and “… sauf si la
déchéance a pour résultat de le rendre apatride” (emphasis added).
Wautelet (2016).
Wautelet (2016); Fargues (2017).
Wautelet (2016).
Fargues (2017).
Ibid.
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The Ministry of the Interior reported in 2016 that since 1996, 13 dual na-
tionals had lost their French nationality in relation to convictions for terrorist
crimes. Between 2016 and January 2020, a further three nationals reportedly
lost their French nationality for terrorist crimes. Of these in total 16 cases
from 1996 to 2020, six individuals used to hold the Algerian nationality be-
sides the French nationality, another seven the Moroccan nationality, one the
Tunisian, one the Turkish, and there was one case we could not nd in media
reporting. Diferent from Belgium, it seems France has in recent years rarely
revoked the citizenship of dual nationals believed to be in Syria or Iraq.
2.3 Germany
Similar to Belgium and France, only dual nationals can lose their German
citizenship. Until recently, however, loss of German citizenship was possible
only when a dual national joined the armed forces of a foreign state whose citi-
zenship he possessed, under Article 28 of the German Nationality Act, while
a naturalization decision that resulted from fraud could be revoked under
Article 35; Article 28 was not applicable to members of non-state armed
groups like IS. In June 2019, the German parliament adopted a revised ver-
sion of Article 28 Nationality Act that entered into force on 9 August 2019. The
Qui sont les derniers déchus de la nationalité française?, Le Parisien, 6 January 2016,
available online at http://www.leparisien.fr/archives/qui-sont-les-derniers-dechus-de-la
-nationalite-francaise-06-01-2016-5426243.php.
Sideris, F. (2019). Déchéance de nationalité: une seizième personne depuis 2016 perd
sa citoyenneté, La Chaîne Info, 26 October 2019, available online at https://www.lci.fr/
terrorisme/decheance-de-nationalite-une-seizieme-personne-perd-sa-citoyennete-2135912
.html.
Section 16 Basic Law (Grundgesetz; translation available at https://www.gesetze-im
-internet.de/englisch_gg/englisch_gg.html#p0092); K. Roithmaier (2019). Germany and its
Returning Foreign Terrorist Fighters: New Loss of Citizenship Law and the Broader German
Repatriation Landscape, 18 April, The Hague: , available at https://icct.nl/publication/
germany-and-its-returning-foreign-terrorist-ghters-new-loss-of-citizenship-law-and
-the-broader-german-repatriation-landscape/.
See an ocial English translation of the old version of the Nationality Act, available at
https://wellington.diplo.de/blob/2138368/4aefa3bb3ba4565756275b29723a37/staatsan
gehoerigkeitsgesetz-englisch-data.pdf.
See Wissenschaftlicher Dienst des Bundestages (2016). Verlust der Staatsangehörigkeit
bei IS-Kämpfern—Rechtslage in ausgewählten EU-Staaten. Sachstand WD3-3000-270/16,
Berlin: Bundestag, p. 4, available at: https://www.bundestag.de/blob/493610/4aef9e281154
c0735ecd5dad5d5805ac/wd-3-270-16-pdf-data.pdf.
Bundesregierung (2019). Deutscher Pass kann aberkannt werden, Berlin: Bundesregierung,
ocial website of the Bundesregierung [the Federal Government], 9 August 2019, avail-
ableathttps://www.bundesregierung.de/breg-de/service/gesetzesvorhaben/deutscher
-pass-kann-aberkannt-werden-1596980.
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newly introduced provision requires that the individual in question has “con-
cretely participated in combat operations by a terrorist organization abroad”.
Notably, a criminal conviction for a terrorist ofense is not required. The
clause may not be applied retroactively, and the provision can therefore not
be applied to individuals who travelled abroad to join IS before August 2019.
The decision to revoke is made by a state agency, not by a court.
Since it was adopted recently and cannot be applied retroactively, the new
provision of the Nationality Act has not been applied in practice at the moment
of writing. According to the Federal Criminal Police Oce (Bundeskriminalamt)
of Germany, around 1.050 individuals have travelled from Germany to Iraq and
Syria to join IS. According to the Ministry of the Interior, a “low three-digit
number” of them are dual nationals. It is particularly these individuals who
may be afected by citizenship revocation albeit only for ‘concrete participa-
tion in hostilities by a terrorist organization’ after that law was enacted.
2.4 The Netherlands
Citizenship deprivation in the Netherlands is based on Article 14 of the
Nationality Act. The decision is taken by the Minister of Justice and Security
(or on his behalf by the executive). Deprivation may not result in statelessness
(Art. 14(8)), so it can only apply to dual citizens. Before 2010, citizenship could
be revoked only if nationality was obtained based on fraud or concealment of
relevant facts, whereas voluntary military service in a foreign (state) armed
force could lead to “loss” of citizenship. This provision was never used in rela-
tion to terrorist activity. Since 2010, three changes to the Nationality Act have
Section 28(1) Nationality Act reads: “… sich an Kampandlung einer terroristischen Ver-
einigung im Ausland konkret beteiligt”. Sections 129 and 129a Criminal Code [Strafgesetz-
buch] dene the concept of terrorist organizations.
Bundesregierung (2019). Deutscher Pass kann aberkannt werden, Berlin: Bundesregierung.
Section 28(3) Nationality Act.
: Rund ein Drittel der 1050 deutschen IS-Kämpfer wieder zurück in Deutschland, Die
Zeit, 14 February 2019, available at https://www.zeit.de/news/2019-02/14/bka-rund-ein
-drittel-der-1050-deutschen-is-kaempfer-wieder-zurueck-in-deutschland-20190214
-doc-1df6tp.
51 deutsche IS-Kämpfer in Händen kurdischer Kräfte, Der Tagesspiegel, 7 March 2019,
available at https://www.tagesspiegel.de/politik/syrien-51-deutsche-is-kaempfer-in-haen
den-kurdischer-kraefte/24079152.html.
Rijkswet op het Nederlanderschap, available (in Dutch) at https://wetten.overheid.nl/
BWBR0003738/2018-08-01#Hoofdstuk5_Artikel14.
On the basis of Art. 14(1) and 15(1)(e); see a previous version of the Nationality Act at
https://wetten.overheid.nl/BWBR0003738/2009-03-01.
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been implemented that have broadened the scope of the deprivation powers
in this respect.
In October 2010, a new subsection 14(2) introduced a basis for revocation
when a person has been irrevocably convicted because of certain crimes in
relation to state security and international relations punishable by an 8-year
prison sentence or more, as well as the specifc crimes of terrorism or recruit-
ment for an armed struggle or for an alien armed force. In March 2016, the
scope of terrorist crimes covered was expanded to preparatory acts for terror-
ist crimes. In March 2017, a new subsection 14(4) made it possible to revoke
the nationality without a conviction, “in the interest of national security” of a
person who has reached the age of 16 and who is outside the Kingdom, if his
conduct shows that he has joined an organization that has been placed on a
list of organizations that partake in a national or international armed conict
and poses a threat to national security.
In September 2017, a couple of months after it was introduced, the new com-
petence to revoke the Dutch nationality on national security grounds was used
for the rst time, against four Dutch-Moroccan individuals. Since then, there
were ve more revocations in 2018, ten revocations in 2019, and (so far) four
in 2020. Of these 23 cases in total, however, seven deprivation decisions were
reversed in 2019 because they had been based on retroactive application.
Of the 16 remaining cases, 12 individuals were born in the Netherlands, four
abroad. Most of the individuals are of Moroccan descent, but there are also
individuals of Egyptian, Iraqi and Turkish descent; two of them are women.
14 cases are based on art. 14(4) Nationality Act, which means the individuals
Staatsblad [ocial journal] 2010, 242, available at https://zoek.ocielebekendmakingen
.nl/stb-2010-242.html (translation by authors).
Staatsblad 2016, 121, available at https://zoek.ocielebekendmakingen.nl/stb-2016-121
.html (translation by authors.
Staatsblad 2017, 52, available at https://zoek.ocielebekendmakingen.nl/stb-2017-52
.html (translation by authors). The list is available at https://zoek.ocielebekendmakin-
gen.nl/stcrt-2017-13023.html.
Staatscourant, 2017, 52440, 13 September.
Staatscourant, 2018, 39597, 11 July; 63407, 7 November.
Staatscourant, 2019, 3532, 21 January; 11642, 27 February; 22177, 17 April; 27574, 10 May;
50454, 6 September; 60309, 30 October; 67223, 3 December; 67227, 3 December; 69330,
12 December.
Staatscourant, 2020, 4746, 20 January; 5678, 23 January; 6215, 27 January; 25604, 4 May.
See Council of State, judgment of 17 April 2019, :::2019:990, available
at https://www.raadvanstate.nl/@114910/201806107-1-v6/; judgment of 17 April 2019,
:::2019:1246, available at https://www.raadvanstate.nl/@114911/201806104
-1-v6/; and Staatscourant 2019, 52809, 23 September.
() –
are (presumably) abroad; only one case is based on a conviction for a terrorist
crime and art. 14(2) Nationality Act.
2.5 United Kingdom
Deprivation of citizenship in the UK is currently regulated in Sections 40, 40A
and 40B of the British Nationality Act 1981. On the basis of section 40(2)
British Nationality Act, the Secretary of State may order the deprivation of citi-
zenship if he “is satised that deprivation is conducive to the public good”. The
UK government considers deprivation conducive to the public good when the
individual has been involved in activities involving certain serious crimes, as
well as acts of terrorism and “unacceptable behaviour” such as glorication of
terrorism. The Secretary of State has considerable discretionary room to use
the deprivation power based on this ground, as its use is not contingent on
a criminal conviction for a terrorist ofence, nor on any other kind of judi-
cial approval.
The current provisions result from a number of changes since 2003, which
have signicantly broadened the scope and applicability of the deprivation
powers. First, an amendment implemented in 2003 introduced a general
power, instead of more speci grounds, to deprive a British citizen of citi-
zenship who had done “anything seriously prejudicial to the vital interest of
the United Kingdom or a British overseas territory”, and expanded its reach to
citizenship acquired by birth; however, it also introduced protection against
statelessness. Second, in the aftermath of the 2005 London bombings, the
“seriously prejudicial” standard was replaced by the much lower standard that
deprivation was to be “conducive to the public good”. Third, in July 2014,
Section 40(4A) introduced a unique exception to the protection against state-
lessness: rendering a naturalized citizen stateless is acceptable when he or
she “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
Staatscourant, 2019, 22177, 17 April.
British Nationality Act 1981, available at http://www.legislation.gov.uk/ukpga/1981/61.
E.g. UK Home Oce, HM Government Transparency Report 2018: Disruptive and
Investigatory Powers, London: Home Oce, p. 26.
Anderson, D., Q.C. (2016). Citizenship Removal Resulting in Statelessness. Independent
Reviewer of Terrorism Legislation, April, at 2.9; available at https://assets.publishing
.service.gov.uk/government/uploads/system/uploads/attachment_data/le/518120/David
_Anderson_QC_-_CITIZENSHIP_REMOVAL__web_.pdf, at 3.16–3.18.
Gibney, M.J. (2013). ‘A Very Transcendental Power’: Denaturalisation and the Liberalisation
of Citizenship in the United Kingdom, Political Studies 61, pp. 637–655; Anderson (2016),
at 2.9.
Gibney (2013: 650); Anderson (2016), at 2.14.
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overseas territory” and if 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”.
Before the citizenship deprivation powers were broadened from 2003
onwards, these powers were used only occasionally. From then, the num-
bers started to rise slowly. Gibney reports that the early case in 2003 of Abu
Hamza, who successfully appealed his deprivation but was later extradited to
and convicted in the US, was followed by thirteen deprivation decisions be-
tween January 2006 and May 2011, “almost all because of suspected links with
Islamist terrorism”. The Home Oce’s Transparency Reports on Disruptive
and Investigatory Powers provide numbers of deprivations on the ‘condu-
cive’ ground over the period 2010–2018: 24 between May 2010 and the end of
December 2013; four in 2014; ve in 2015; 14 in 2016; 104 in 2017; and 21 in
2018. The numbers for 2019 and 2020 are not available yet. It is important to
note that these are not necessarily terrorism cases, as the Transparency Reports
point out the UK government also sees war crimes and other serious crimes to
fall under Section 40(2).
Information from the ‘Bureau of Investigative Journalism’, which has
tracked citizenship revocations in the UK between 2002 and 2016, in combi-
nation with other public information reveals some background information
about these cases. Considering the very considerable numbers of citizenship
deprivations since 2016, however, the picture is very incomplete. The measure
Section 40(4A) British Nationality Act.
Gibney (2013: 646); Anderson (2016), at 2.8.
Abu Hamza: Home Secretary Theresa May hails guilty verdict, , 20 May 2014, available
at https://www.bbc.com/news/world-us-canada-27478998.
Ibid.
UK Home Oce (2015). HM Government Transparency Report 2015 (November), London:
Home Oce, available at https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/le/473603/51973_Cm_9151_Transparency_Accessible
.pdf.
UK Home Oce (2017). HM Government Transparency Report 2017 (February), London:
Home Oce, available at https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/le/593668/58597_Cm_9420_Transparency_report
_web.pdf.
UK Home Oce (2018). HM Government Transparency Report 2018 (July), London:
Home Oce, available at https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/le/727961/CCS207_CCS0418538240-1_Transparency
_Report_2018_Web_Accessible.pdf.
UK Home Oce (2020). HM Government Transparency Report: Disruptive Powers 2018/
19 (March), London: Home Oce, available at https://www.gov.uk/government/pub
lications/transparency-report-disruptive-powers-2018-to-2019.
() –
touches individuals who hold (or are believed to be able to obtain) a wide va-
riety of nationalities, including Afghan, Australian, Bangladeshi, Canadian,
Iraqi, Lebanese, Moroccan, Nigerian, Pakistani, Somali, Sudanese, Syrian,
Turkish and Vietnamese.
2.6 Comparative Analysis
All of the ve countries studied above have recently implemented changes to
existing nationality legislation that have created or broadened possibilities for
citizenship deprivation in relation to terrorist ofences or national security. As
depicted in Table 1, however, the grounds and conditions are highly diverse. A
number of diferences stand out. In Germany, citizenship deprivation in rela-
tion to terrorist activity has only been possible since August 2019 and only non-
retroactively, which explains why there have been no cases so far. The scope
of the German provision on deprivation in relation to terrorism is relatively
narrow as deprivation has to be based on evidence that the individual has par-
ticipated in combat operations by a terrorist organization abroad; this means
it cannot target terrorist acts unrelated to combat operations or that occur
domestically. In Belgium and France, deprivation (or loss) of citizenship has
already been possible for over ten years and can be imposed as an additional
measure following a conviction for terrorist crimes (in Belgium to at least a
ve-year-prison sentence). In the Netherlands and the UK, however, citizen-
ship deprivation in relation to terrorist acts is not necessarily (and in practice
almost never) connected to a criminal conviction. In the Netherlands, most
deprivation decisions concern individuals outside the country and are made
‘in the interest of national security’. As discussed above, the reach of the citi-
zenship deprivation provisions is the broadest in the UK.
When looking at the number of citizenship deprivations, as summarised in
Table 2, it is notable that Germany (which is not included as it has no cases)
and UK are the two extremes. The UK has had a limited but stable number of
deprivations for a longer period of time, but this exploded in 2017, although
the number of deprivation decisions ‘conducive to the public good’ in the fol-
lowing year was considerably lower. Overall, the total number of cases in the
UK is much higher than in the other countries. The total numbers of cases
in Belgium, France and the Netherlands are comparable, but when looking at
developments over time, it seems that France is lagging behind recently. While
in Belgium and Netherlands numbers have substantially increased in the last
three years, we do not (yet) see this in France. This, together with the rejection
of further expansion of deprivation powers in 2016, may signal that there is
recently more hesitance in France to use this measure—although it may be
too early to draw conclusions, because there may be a delay in deprivations
() –
Grounds and conditions for citizenship deprivation for acts linked to terrorism in the
countries studied
Belgium France Germany Netherlands United Kingdom
Relevant
legal
provisions
Art. , / Code
of the Belgian
Nationality
Art. Civil Code Art.
Nationality
Act
Art.
Nationality Act
Section British
Nationality Act
Relevant
grounds
Falling short of a
Belgian national’s
duties ();
conviction to a
prison sentence of
at least ve years
for listed terrorist
ofences (/)
Conviction for
acts against the
fundamental
interests of the
nation (());
crimes or ofences
constituting acts of
terrorism (())
Evidence
of concrete
participation
in hostilities
by a terrorist
organization
abroad
Conviction for
listed terrorist
acts (()); ‘in
the interest of
national security’
if joined listed
organization
abroad (())
Secretary of
State is satised
that deprivation
is conducive to
the public good
(())
Key
moments in
expansion of
deprivation
powers in
relation to
terrorism
: Introduction
: Expansion
of terrorist acts
listed
: Further
expansion of
terrorist acts listed
: Introduction
: Extension of
time limits between
commission of
crime and moment
of naturalisation
: Further
extension of time
limits
:
Introduction
:
Introduction
: Expansion
of terrorist acts
listed
: ‘In
the interest
of national
security’ ground
: ‘Seriously
prejudicial’
standard
: ‘Conducive
to the public good’
standard
: Exception in
protection against
statelessness
Criminal
conviction
required?
Yes, to at least ve
years in prison
Yes No Not if based on
art. ()
No
Who takes
the decision
Art. : Court
of Appeal on
request of public
prosecutor; art.
/ and Art. /:
civil or criminal
court on request of
public prosecutor
Council of
Ministers, after
consulting Council
of State
Regional
or national
state
authority
Minister of
Justice and
Security
Secretary of State
Only natural-
ized citizens?
Yes Ye s No No No
Can the per-
son become
stateless after
deprivation?
No No No No Naturalized
citizens: Yes, if
believed to be
able to acquire
another state’s
citizenship;
natural-born
citizens: No
a In the UK, before 2003, deprivation was also hypothetically possible in relation to terrorism, but did not
occur in practice.
() –
because decisions are still under appeal, or because criminal convictions
have not yet materialised (which is a condition for citizenship deprivation in
France, as in Belgium).
3 Follow-Up Scenarios to Citizenship Deprivation for Acts Linked
to Terrorism
A decision to deprive someone of citizenship has far-reaching direct and in-
direct consequences for the individual concerned. This section discusses the
direct immigration law consequences for the individuals deprived of citizen-
ship: how deprivation impacts their residence status, what measures are taken
towards removal or preventing entry, and what follow-up scenarios may occur.
It is important to note that someone who loses citizenship does not neces-
sarily also lose legal residence; in practice, however, citizenship deprivation
will often be followed by a decision or act declaring someone’s stay illegal and
stating an obligation to ‘return’ to a country of origin, (residual) nationality or
habitual residence (a ‘return decision’ in EU law), and/or a measure prevent-
ing legal entry, such as an entry ban. Indirect consequences can take many
Art. 3(4) and (6) of Council Directive 2008/115/EC (Return Directive).
Number of citizenship deprivations for acts linked to terrorism in the
countries studied
Belgium France Netherlands United Kingdom
< – +
– –
– –
– – –
–
–
?
– ?
Total +
a It has to be noted that this information is drawn from public sources and may therefore be
incomplete or inaccurate. Decisions may not be denitive, or may have been reversed with-
out this being reported in public sources. It is also possible that there are cases which have
not (yet) been reported or are otherwise known to the public.
() –
forms; if the ties with a country where someone may have lived all his life are
severed, this has serious consequences in all domains of the individual’s per-
sonal life, in more and less tangible ways: from access to their family, social or
professional life, to their identity and sense of belonging.
What consequences a deprivation decision has—and to what extent this
decision benets domestic national security—to a large extent depends on
where the individual is at the time of the deprivation: inside the depriving
state, or (presumably) outside the depriving state. In principle, there are
always two, and possibly three or more state parties in the equation: the de-
priving state, the state of residual nationality, and possibly one or more third
states. How citizenship deprivation can theoretically play out is outlined in
Figure 1 below. Sections 3.1 and 3.2 describe the diferent scenarios more ex-
tensively, illustrated with concrete examples of cases that have occurred in the
ve countries studied. Possible outcomes are independent departure, extradi-
tion, expulsion, or ‘legal limbo’: the latter being a situation where someone for
a considerable period of time is unremovable from the host state, without a
dened immigration status and attendant access to basic rights.
3.1 Deprivation in the Depriving State
If the individual is on the territory of the depriving country at the time of the
deprivation decision, and the decision becomes nal, he will typically also lose
legal residence and be ordered to leave. The state can enforce this through
diferent modalities: by encouraging independent departure (voluntary re-
turn), by means of facilitating extradition for the purpose of criminal prosecu-
tion elsewhere, or by pursuing forced return in the form of expulsion (possibly
with diplomatic assurances).
Independent departure—whereby the individual after deprivation ‘vol-
untarily’ and/or independently returns to the state of residual nationality or
a third state willing to receive him—is an ideal scenario from the depriving
state’s perspective. In practice, it is unlikely that someone will just accept such
a far-reaching decision and leave to another state. On the other hand, it is not
If a foreign ghter’s last known whereabouts are Iraq or Syria, but no recent or reliable
information is available, authorities in the depriving state will typically assume the indi-
vidual is abroad.
See the special issue on “Undesirable and Unreturnable” Aliens in Asylum and
Immigration Law (Oxford University Press 2017), Refugee Survey Quarterly, 36(1).
In the Netherlands, for instance, revocation decisions are often accompanied by persona
non grata declarations (based on art. 67 Dutch Aliens Act 2000), rendering expatriated in-
dividuals illegal aliens. Furthermore, that expatriated individuals typically lose legal resi-
dence can be inferred from the examples of attempts to deport them that we will discuss.
() –
Overview of follow-up scenarios to citizenship deprivation for acts linked to terrorism
Note: i) Obstacles blocking expulsion or extradition (such as concerns regarding the human
rights situation in, or cooperation from the receiving state) may be temporary, and therefore,
so is a situation of limbo; the dotted arrows show possible follow-ups to limbo. Despite their
temporary nature, in practice limbo situations often last for many years.
ii) Our assumption is that ‘legal residence in the depriving state’ is not a possibility, because it
is unlikely that an expatriated individual has or will be given legal residence; from the moment
he loses legal residence, he is in limbo.
iii) The removal and departure options are not necessarily nal outcomes. They can be followed
by legal residence or limbo, but also by subsequent expulsion or extradition.
Deprivation while
inside depriving state
Limbo
in depriving state
Removal/departure
Independent
departure
to state of residual
nationality/third state
Extradition
to state of residual
nationality/third state
Expulsion
to state of residual
nationality
Deprivation while
(presumably) outside
depriving state
In state of residual
nationality
Independent
departure
to depriving state/
third state
Extradition
to third state
Independent
departure
to depriving state/state
of residual nationality
Extradition
to state of residual
nationality/third state
Expulsion
to depriving state/state
of residual nationality
In third state
Limbo
Legal residence
in state of residual
nationality
in third state
Removal/departure
Removal/departure
() –
impossible that someone chooses to ‘cut his losses’ and leaves through the
‘back door’, especially if an environment is created that makes it very unat-
tractive to stay. It is dicult to refer to examples of this option, because such
cases are unlikely to draw public attention. In particular from a global coun-
terterrorism perspective, this scenario is not ideal as this may cause (alleged)
terrorists to disappear from the radar.
Extradition is in principle only possible if three conditions are met. First, it
has to be requested by a state that wants to prosecute the person, substanti-
ated with evidence. Second, it is only possible if prosecution relates to con-
duct for which the individual has not already been prosecuted (otherwise
extradition would violate the right not to be tried or punished twice under
Article 4 of Protocol no. 7 to the ). Third, extradition should not violate
the individual’s rights, e.g. based on Article 3 (non-refoulement) or 6 (fair trial)
. Since citizenship deprivation may follow on a criminal conviction in
the depriving state, or a new criminal trial may violate Articles 3 or 6 , it
can be expected that expatriated individuals will challenge their extradition in
court. Extradition could be seen, however, to (temporarily) neutralise a secu-
rity threat.
The threshold for expulsion appears to be lower compared to extradition, as
it does not require another state to make a request. However, deportation can
also be expected to lead to extensive legal and political wrangling, as we will
show below. In this respect, a revocation decision is not a ‘quick win’ in terms
of counter terrorism policies; depriving states can expect long and tedious pro-
cedures to actually efectuate forced removal. In our analysis of case law we
have come across various illustrations in this regard.
Expulsion may be (temporarily) prevented from being executed pending
the outcome of a legal challenge of the deprivation itself, or if it would violate
the individual’s human rights, causing the individual to end up in legal limbo.
This can be because the individual argues the act of deprivation violates his
rights. For instance, in a pending case at the ECtHR, the expulsion of four indi-
viduals of Moroccan and one of Turkish descent has been suspended because
they challenged the deprivation of their nationality as an infringement of their
right to identity, based on Article 8 (right to respect for family and private life)
of the European Convention on Human Rights (), and as a “disguised
penalty” for conduct for which they have already served a sentence, based on
Article 4 of Protocol no. 7 to the . Expulsion can also be suspended
ECtHR, Ghoumid and 4 others v. France, application no. 52273/16, communicated on
23 May 2017, available at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-1744
79%22]}; ECtHR (2020). Factsheet Deprivation of citizenship, Strasbourg: Council of
() –
if there is a risk that the act of expulsion violates the individual’s rights. In
Daoudi v. France, the court concluded that deportation to Algeria would violate
Article 3 (non-refoulement), as it was likely that Daoudi would be tar-
geted by the Algerian Department for Information and Security and could be
arrested, detained and subjected to ill-treatment, including torture. Another
case where deportation was suspended due to pending appeal procedures con-
cerns the ‘black widow of the jihad’ Malika el Aroud of Moroccan descent, and
Bilal Soughir of Tunisian descent, who were both convicted in Belgium for acts
related to terrorism in 2010 and 2008 respectively, and whose Belgian national-
ity was revoked on 30 November 2017. They claimed their deportation would
violate Article 8 , as well as Article 2 of Protocol no. 7 to the (denial
of the right to appeal). El Aroud had earlier fought here deportation based on
Articles 3 and 8 , but in February 2019, the Belgian Council for Alien Law
Litigation decided that she could be expelled. At the time of writing there
were no public records that she has actually been expelled since.
Apart from the above mentioned legal procedures, expulsion may also be
suspended or fail due to ‘practical’ obstacles (which may encompass legal as-
pects), such as lack of willingness from the state of residual nationality to ac-
cept the person back or provide the necessary travel documents. In an article
in the French newspaper L’Express, observers note that countries of residual
nationality may take diferent strategies in this regard: Algeria and Morocco
are generally willing to accept individuals back who are sought for prosecu-
tion or when the presence of the individuals on their soil can ‘contribute’ to
the ght against terrorism, whereas Tunisia, for instance, is hesitant to accept
Europe, available at https://www.echr.coe.int/Documents/FS_Citizenship_Deprivation
_ENG.pdf. On Art. 8 and citizenship deprivation, see e.g. ECtHR, Ramadan v. Malta, ap-
plication no. 76136/12, 21 June 2016, and K2 v. the United Kingdom, 7 February 2017, applica-
tion no. 42387/13, under 49–51; see also Reyntjens (2019).
The prohibition of refoulement is absolute—see ECtHR, Saadi v. Italy, 28 February 2008,
application no. 37201/06.
ECtHR, Daoudi v. France, 3 December 2009, application no. 19576/08. See also X. v. Sweden,
judgment of 9 January 2018, application no. 36417/16 (expulsion to Morocco). In A.M. v.
France (29 July 2019, application no. 12148/18) the ECtHR concluded, however, that expul-
sion to Algeria would not violate Article 3.
ECtHR, El Aroud v. Belgium, application no. 25491/18, and Soughir v. Belgium, application
no. 27629/18, communicated on 8 November 2015. See also ECtHR Press unit, Press coun-
try prole on Belgium, version updated January 2020, available at https://www.echr.coe
.int/Documents/CP_Belgium_ENG.pdf.
Belga, ‘Zwarte weduwe van de jihad’ Malika El Aroud mag naar Marokko worden uit-
gewezen, Nieuwsblad, 22 February 2019, available at https://www.nieuwsblad.be/cnt/
dmf20190222_04197996.
() –
back Tunisian jihadists. However, too much eagerness to accept back nation-
als may also prevent deportation. Deportation to Algeria and Morocco has for
example repeatedly been ruled to violate Article 3 . Governments that
seek to expel an expatriated individual may try to obtain diplomatic assur-
ances or enter into memoranda of understanding (s) to address possible
violations. Another example where lack of cooperation from the country
of residual nationality prevented expulsion is the case of Minh Quang Pham,
whose expulsion from the UK was blocked as the Vietnamese government did
not recognize his Vietnamese citizenship. Other practical circumstances that
may be an obstacle to removal are for instance health reasons.
What happens to individuals like Kamel Daoudi, Bashir Ghoumid and
Malika el Aroud, who have lost their nationality and legal residence, but can
for a considerable period of time not be deported? All ve countries studied
have diferent measures in place to deal with such legal limbo-situations and it
goes beyond the scope of this paper to elaborate on all these diferences. It suf-
ces that governments generally continue to monitor the whereabouts of the
individuals concerned and may restrict their movement. Individuals typically
lose their right to work, may be temporarily placed in immigration detention,
and their access to insurances or social welfare may be blocked. The above-
mentioned Kamel Daoudi has been in a limbo situation in France for the past
thirteen years; he has been put under the measure of ‘assigned residence’ and
has to live away from his family and report to the police several times a day.
Goupil, M. (2019). Déchéance de nationalité des binationaux: une source de ten-
sions diplomatiques?, L’Express, 25 October 2019, available at https://www.lexpress.fr/
actualite/monde/decheance-de-nationalite-des-binationaux-une-source-de-tensions
-diplomatiques_2105005.html.
Apart from the cases El Aroud (Morocco), Daoudi and Arous (below), see e.g. , BB and
others v. SSHD, 18 April 2016.
See Giufré, M. (2017). Deportation with Assurances and Human Rights. The Case of
Persons Suspected or Convicted of Serious Crimes, Journal of International Criminal
Justice 15(1), pp. 75–95.
UK Supreme Court, Pham v Secretary of State for the Home Department, [2015]
19, 25 March 2015, available at https://www.supremecourt.uk/cases/docs/uksc-2013
-0150-judgment.pdf. Instead, in February 2015 the man was extradited to the US, where he
was convicted to 40 years imprisonment for his support to Al Qaida in the Arab Peninsula.
UK citizen Minh Quang Pham jailed for Heathrow suicide plot, , 27 May 2016, avail-
able at https://www.bbc.com/news/uk-36403825.
Amnesty International (2018). Punished without trial. The use of administrative control
measures in the context of counter-terrorism in France, London: Amnesty International,
available online at https://www.amnesty.nl/content/uploads/2018/11/Punished-without
-trial-The-use-of-administrative-control-measures-in-the-context-of-counter-terrorism
-in-France.pdf?x58099.
() –
He also has been imposed with a duty to request other countries (that do not
have an agreement with Algeria to expel him) to accept him; over 40 coun-
tries turned down his request. As we and others have pointed out before,
creating an environment that makes it very unattractive to stay can be coun-
terproductive to counterterrorism, because it may cause people to disappear
from, or move under, the radar, or promote further alienation, and possibly
radicalization.
However, the fact that expulsion or extradition is not allowed under inter-
national law, for instance because it violates human rights or when an entry
ban is in place, does not necessarily mean that it does not happen in prac-
tice. Ahmed Sahnouni el-Yaacoubi, for example, was deprived of his French
citizenship and expelled from France after serving a prison sentence there.
Upon arrival in Morocco he was immediately detained and later sentenced to
a ve-year prison sentence for the same conduct he had been convicted of in
France. While the ECtHR acknowledged in 2018 that his swift expulsion made
it impossible to request an ‘interim measure’ suspending his expulsion (under
Article 39 of its Rules of Court), his appeal to Article 3 was dismissed because
the ECtHR ruled that the Moroccan authorities had made sucient eforts to
prevent treatment referred to in that provision. In the meantime, a Moroccan
appeals court had ruled he had already served a sentence in France for the
same acts and should be released. In other recent case law—not concerning
individuals whose nationality was revoked—we have come across examples
of expulsion and extradition related to (alleged) terrorists where in hindsight
a violation of Article 3 was established by the ECtHR, without severe sanction-
ing for the expelling country as a consequence. For example, in the case of
Mohamed Ali Arous—an Algerian deported to his country of origin because he
was linked to terrorism—the violation of Article 3 merely resulted in an order
to the French government to obtain assurances from the Algerian government
that he would not be subjected to treatment prohibited under Article 3.
Interview with Kamel Daoudi, conducted by researcher in ‘In Limbo’ project (see https://
cicj.org/research/in-limbo/) on 16 March 2017.
Special issue “Undesirable and Unreturnable” Aliens in Asylum and Immigration Law
(above note 63); and Lutz, F. (2018), Non-removable Returnees under Union Law: Status
Quo and Possible Developments, 20(1), pp. 28–52, at p. 45, who refers in this context
to the concept of ‘hostile environment’ promoted by (at the time) UK Home Secretary
Theresa May.
Choudhury (2017); Paulussen (2018).
ECtHR, A.S. v. France, judgment of 19 July 2018, application no. 46240/15.
ECtHR, M.A. v. France, judgment of 2 July 2018, application no. 9373/15. As for extradi-
tion; see ECtHR, Trabelsi v. Belgium, 4 September 2014, application no. 140/10; Boutagni v.
() –
3.2 Deprivation Outside the Depriving State
From the perspective of the depriving state, challenges to deal with individu-
als in limbo are altogether avoided if the deprivation decision is taken while
the individual is outside the country. Depriving someone of citizenship while
abroad will likely block his or her return and thus has the apparent advan-
tage that the person is less likely to pose a threat domestically. Our analysis
shows that most of the recent deprivation decisions (at least in Belgium, the
Netherlands and the UK) are taken while the individuals are (believed to be)
outside the depriving state. This development is not surprising, as de facto
many of the recently convicted and/or alleged terrorists happen to be foreign
ghters who (presumably) live abroad, in particular in Syria or Iraq. It suggests
that in these instances citizenship deprivation is especially used to prevent
the return of these foreign ghters. The UK, however, has already for years—
seemingly purposefully—deprived citizens of British citizenship while they
are abroad. Indeed, the UK government is even known to wait for individuals
to be abroad before it revokes their British nationality. In the case of a man
known as ‘L1’, the Bureau of Investigative Journalism found evidence that the
Secretary of State “deliberately waited for [L1] to leave the country before re-
voking his British citizenship”. One reason why the UK uses this strategy may
be that the government wants to avoid another ‘Abu Hamza’, whose expatria-
tion, under the old legislation, took eight years to materialize. In the mean-
time, Egypt had revoked his Egyptian nationality, which made the appeals
court conclude he could no longer be deprived of British citizenship as this
would render him stateless.
Some available examples show that depriving someone’s citizenship while
he or she is abroad complicates appeals, and may endanger the individual’s
personal security. The prohibition of arbitrary deprivation of citizenship under
international law entails inter alia that the decision is open to efective admin-
istrative or judicial review. In the case of the UK it is especially problematic
that the decision is efective immediately, and can be challenged only after the
France, 18 February 2011, application no. 42360/08; and Ouabour v. Belgium, 2 June 2015,
application no. 26417/20.
Fargues (2017, 990).
Ross, A. & Galey, P. (2014). Home Secretary waited until terror suspect was abroad before
stripping citizenship, The Bureau of Investigative Journalism, London, 13 February 2014,
available at https://www.thebureauinvestigates.com/stories/2014-02-13/home-secretary
-waited-until-terror-suspect-was-abroad-before-stripping-citizenship. See also the case
of ‘M2’ below.
Pillai & Williams (2017: 857).
UN Human Rights Council (2013). Human rights and arbitrary deprivation of nationality,
Report of the Secretary-General, A/HRC/25/28, 19 December 2013, Geneva: .
() –
order has been made. Furthermore, the time frame to appeal a decision may
be very short, and means of communication inadequate (especially if the evi-
dence is non-public), limiting options to organize an appeal. Take the case of
‘E2’, who claims the letter containing the deprivation decision was sent to his
UK address after he left for Afghanistan and Pakistan in January 2012 for fam-
ily visits, and only learned of the decision in Dubai in late May, when he was
on his way back to the UK and it was already too late to le an appeal. ‘K2’
submitted that he could not properly appeal his expatriation from Sudan, as
he feared his communication about this would be intercepted by the Sudanese
intelligence service and they would target him. When it comes to the per-
son’s invidual security, apart from the case of ‘K2’ we already mentioned, ‘E2’
claimed that he was in danger in Pakistan, because people knew his national-
ity had been revoked and this made him look guilty, while he claimed he also
could not return to Afghanistan because people by then also knew his British
citizenship was revoked and he was accused of working with the Taliban.
When someone’s citizenship is deprived while he stays in the state of re-
sidual nationality, he likely has legal residence there, which could mean he can
continue to live there and be left alone. However, there is also a real possibility
that the individual will be subjected to (another) criminal trial there (as the
cases of Sahnouni and Arous show; see section 3.1), or triggers the interest of
authorities of other states who may request for extradition. It is, however, also
possible that the expatriated individual tries to travel independently to anoth-
er third state or back to the depriving state. The citizenship of ‘M2’, a man born
in Afghanistan who obtained British citizenship in 2011, was revoked while he
was in Afghanistan in May 2014. Two months later, the man managed to travel
to London via Pakistan, using his Afghan passport. While his appeal was still
serving, the Special Immigration Appeals Commission () put him under
strict bail conditions in London.
Zedner (2016: 234, 237).
Although a Special Immigration Appeals Commission () judge concluded he was
likely aware of the decision; see Galey, P. (2014). My British citizenship was everything to
me. Now I am nobody—A former British citizen speaks out, The Bureau of Investigative
Journalism, London, 17 March 2014, available at https://www.thebureauinvestigates.com/
stories/2014-03-17/my-british-citizenship-was-everything-to-me-now-i-am-nobody-a
-former-british-citizen-speaks-out.
The dismissed the appeal on this point; the ECtHR agreed (see K2 v. the United
Kingdom).
Ibid.
Parsons, V. (2016). Tracked by MI5 to world: London minicab driver ‘highly prob-
ably’ an Al Qaeda courier, The Bureau of Investigative Journalism, London, 22 January
2016, available at https://www.thebureauinvestigates.com/stories/2016-01-22/tracked-by
() –
When the individual is in a third state at the moment of deprivation he
might leave independently, be forcibly removed (extradition or expulsion), or
end up in a limbo situation. Depending on the circumstances, independent
departure from a third state is quite a likely scenario. The expatriated individu-
al might try returning to the depriving state by irregular means, or travelling to
the state of residual nationality or another third state; unless he is in detention,
as we will elaborate below.
Several available examples suggest that extradition from a third state may
happen, not exceptionally, under questionable circumstances. Somalian-born
Mahdi Hashi, for example, was rendered stateless by the deprivation of his
British citizenship, and when he crossed from Somalia into Djibouti to contact
the British consulate, he was arrested by local security services and reportedly
held in incommunicado detention and interrogated for three months, before
being transferred to the United States to face terrorism charges. He is reported
to have spent three years in pre-trial solitary connement and in 2015 entered a
guilty plea on the charge of providing material support to terrorism, for which
he was sentenced to nine years. Another case is that of Alexanda Kotey and
El Shafee Elsheikh, two of the IS militants known as ‘the Beatles’, who were in
Iraq or Syria when their British nationality was reportedly revoked. They are
currently said to be in US custody and in the process of being transferred to the
US, but the legal status of such a possible transfer is unclear.
The question of expulsion by third states to the state of residual nationality,
currently comes up in particular for Turkey, Syria, Iraq and the Kurdish au-
thorities in Northern Syria and Iraq, as they host a considerable number of
expatriated European foreign ghters on territory under their control. Given
that Algeria and Morocco are generally quite willing to accept individuals back
(section 3.1), and that many expatriated European foreign ghters originate
from those countries (section 2), it is striking to note that we have not come
across a single case in which Turkey, Syria, Iraq or the Kurdish authorities
-mi5-to-pc-world-how-judges-and-theresa-may-deemed-london-minicab-driver-very
-highly-probably-an-al-qaeda-courier; the decision of 22 December 2015 is available
at http://siac.decisions.tribunals.gov.uk/Documents/M2-July2015.pdf.
Additionally, there is also the possibility the individual is tolerated or even promoted
to stay, as for example happened with expatriated foreign ghters residing in IS-held
territory.
K. Shamsie, ‘Exiled: the disturbing story of a citizen made unBritish’, The Guardian,
17 November 2018, available at https://www.theguardian.com/books/2018/nov/17/unbe
coming-british-kamila-shamsie-citizens-exile.
B. McKernan, J. Borger & D. Sabbagh, ‘US takes custody of British Isis pair’, The Guard-
ian, 10 October 2019, available at https://www.theguardian.com/world/2019/oct/10/us
-reportedly-takes-custody-of-two-british-isis-beatles.
() –
expelled IS ghters deprived of citizenship by a European country to Algeria
or Morocco. This is not because these countries of residual nationality per-
tinently refuse IS ghters back. Turkey, for example, expelled two suspected
IS ghters with Moroccan nationality to Morocco in 2019. Earlier that year
Morocco itself repatriated eight foreign terrorist ghters from Syria. We can
only speculate what explains this, but it would not be surprising if countries
like Morocco and Algeria dismiss any responsibility for individuals who often-
times are born and raised in the depriving state.
A telling and much publicized case in this regard is that of Shamima Begum,
who had left the UK at the age of 15 to travel to Syria in February 2015. She was
a British-born citizen and did not have dual citizenship; her parents are from
Bangladesh. In February 2019 she asked for leave to return to the UK from a
Syrian refugee camp, which was answered with a revocation of her British citi-
zenship, because of her links to IS and because the Secretary of State reasoned
she was entitled to Bangladeshi citizenship through her mother’s descent.
The Bangladeshi Foreign Minister told the that Bangladesh would not ac-
cept her back and she was the responsibility of the UK. While the ruled
in February 2020 that under the law and practice of the Bangladeshi govern-
ment she was not stateless, it also acknowledged that she was at risk of torture
or degrading treatment in the Kurdish-run Al Roj camp in Syria.
Indeed, when independent departure or forced removal does not occur, the
expatriated individuals end up in a situation of legal limbo, forcing the third
state authorities to somehow deal with them. Like Begum, most of the men
and women deprived of their European citizenship have so far been held in
enclosed camps or detention centres, accompanied by thousands of other
(European) foreign alleged IS aliates and their children whose citizenship
may not have been revoked, but who also cannot be extradited or expelled by
F. Tasdemir, ‘Turkey deports Moroccan national for terror links’, Anadolu Agency,
16 December 2019, available at https://www.aa.com.tr/en/turkey/turkey-deports-moroc
can-national-for-terror-links/1675345.
, ‘Morocco repatriates eight alleged militants from Syria’, Arab News, 10 March 2019,
available at https://www.arabnews.com/node/1464661/middle-east.
S. Knight, ‘If Shamima Begum, the ISIS bride, is no longer British, what does citizenship
mean?’, The New Yorker, 15 February 2020, available at https://www.newyorker.com/news/
letter-from-the-uk/if-shamima-begum-the-isis-bride-is-no-longer-british-what-does
-citizenship-mean.
Shamima Begum: IS bride ‘would face death penalty in Bangladesh’, , 3 May 2019,
available at https://www.bbc.com/news/world-asia-48154781.
, Shamima Begum v. SSHD, 7 February 2020, appeal no. SC/163/2019, available at
http://siac.decisions.tribunals.gov.uk/Documents/outcomes/documents/Shamima%20
Begum%20OPEN%20Judgment%20-%2007.02.2020.pdf.
() –
the authorities holding them. They typically have no residence permit and can
thus be regarded undocumented migrants. Releasing these individuals is not
a viable option, as they are considered to pose a security threat. Third states,
supported by the United States, have on numerous occasions called upon
European countries of origin to either start extradition procedures, or cooper-
ate in expulsion procedures, but these calls have so far largely been ignored.
As a consequence, third states who are ‘stuck’ with European and other foreign
ghters have taken diferent approaches to nd a way out of this deadlock.
Under its broad anti-terrorism laws, Iraq already in 2018 started prosecut-
ing suspected IS members, foreign ghters included. The resulting ‘ten-minute
trials’ often lead to the death penalty and have been highly criticized for vi-
olating fair trial rights. After becoming exasperated by the failure to reach
international agreements over what to do with them, the Kurdish authorities
in Syria in February 2020 said that they too would start prosecuting foreign
ghters. Turkey, on the other hand, in autumn 2019 started threatening that
it would expel European foreign ghters to European states, even if European
states were unwilling to cooperate and the suspected IS ghters’ nationality
had been revoked. As a Turkish ocial noted: “Countries can’t just revoke the
citizenship of such ex-terrorists and expect Turkey to take care of them; this
is unacceptable to us and it’s also irresponsible”, adding that “Turkey is not
a hotel for foreign terrorists”. Some commentators questioned whether de-
porting individuals whose citizenship was revoked was ‘practically feasible’,
while others noted that, for instance if an airline is under state control, a
third country could deport such individuals despite an entry ban or in the ab-
sence of travel documents, basically presenting the depriving state with a fait
accompli. The latter proved to be right; strong diplomatic pressure by The
B. Hubbard, ‘Wives and Children of ISIS: Warehoused in Syria, Unwanted Back Home’,
New York Times, 4 July 2018, available at https://www.nytimes.com/2018/07/04/world/
middleeast/islamic-state-families-syria.html.
UN Assistance Mission for Iraq (2020). Human Rights in the Administration of Justice in
Iraq, Geneva: , available at https://www.ohchr.org/Documents/Countries/IQ/
UNAMI_Report_HRAdministrationJustice_Iraq_28January2020.pdf.
D. Sabbagh, ‘Syrian Kurds to put Isis ghters from dozens of countries on trial’, The
Guardian, 6 February 2020, available at https://www.theguardian.com/world/2020/
feb/06/syrian-kurds-to-put-isis-ghters-from-dozens-of-countries-on-trial.
B. McKernan, ‘Turkey threatens to send foreign Isis suspects home from next week’, The
Guardian, 8 November 2019, available at https://www.theguardian.com/world/2019/
nov/08/turkey-isis-suspects-repatriation-islamic-state.
Ibid.
G. Dahhan, ‘Turkije kan niet zomaar alle IS’ers het land uitzetten’, Trouw, 11 November
2019, availabe at https://www.trouw.nl/binnenland/turkije-kan-niet-zomaar-alle-is-ers-het
-land-uitzetten~b6640fa5/.
() –
Netherlands did not prevent the deportation of Fatima H. from Turkey to the
Netherlands on 19 November 2019. Interestingly the Dutch authorities had re-
voked her citizenship only weeks before, immediately after she had reported
herself to the Dutch Embassy on 30 October 2019. In response to this illegal ex-
pulsion, the Dutch Minster of Justice and Security expressed disappointment,
but also condence to deal with the matter pragmatically: “She has not been
allowed access to the Netherlands and has been put in immigration detention.
The basic assumption is that, if she is prosecuted and convicted, she serves
her sentence here [in the Netherlands] and will subsequently be deported
to Morocco.”
4 Conclusion and Discussion
This contribution shows that the grounds for citizenship deprivation in rela-
tion to terrorist ofences or national security are diverse in the ve countries
studied, but have in all cases expanded in recent years, and that there is a wide
variety of possible scenarios expatriated individuals could end up in as a conse-
quence. In Belgium, the Netherlands and especially the UK, the gures suggest
the expanded deprivation powers have also resulted in an increase in their use,
especially against foreign ghters who are (presumably) abroad. Interestingly,
France has so far not followed the same trend as the other countries, although
this could still change if more individuals are convicted.
Our analysis demonstrates that in cases were citizenship was revoked while
the individual was inside the depriving country, this typically leads to extensive
legal wrangling. If an individual successfully challenges a subsequent extradi-
tion or expulsion, or cannot be deported, this causes a legal limbo-situation,
which could result in further radicalisation or drive the individuals to terrorist
groups, rather than away from them. We have identied various cases where
extraditions and expulsions of convicted or alleged terrorists from European
states in hindsight violated the non-refoulement or ne bis in idem principles.
Such breaches of human rights are in and of themselves already unaccept-
able, but are arguably also problematic from a counterterrorism perspective,
as they can play into the hands of terrorist groups which can use them for
propaganda purposes.
The increasing use of citizenship deprivation while the individual is outside
of the depriving country is a worrying trend. Our analysis shows that especially
‘Hoe Fatima H. zonder Nederlands paspoort toch naar Nederland kwam’, RTL Nieuws,
20 November 2019, available at https://www.rtlnieuws.nl/nieuws/politiek/artikel/492
8791/islamitische-staat-syriestrijders-fatima-xaviera.
() –
in those cases, there is a risk that the expatriated individual’s human rights
are violated: they may not be in the position to efectively challenge the re-
vocation decision, they may be extradited under dubious circumstances (as
our examples of suspects disappearing and being held incommunicado before
reappearing in the US show), or they may be prosecuted, possibly in violation
of due process standards.
More specically, the trend to revoke citizenship of individuals who cur-
rently stay in third countries is troubling from a human rights, as well as a coun-
terterrorism perspective. If they are not detained, they may easily disappear
from the radar, with the risk that neither the depriving state nor the state of
residual nationality takes up the task of monitoring their whereabouts. If they
are detained—as is the case for most European foreign ghters deprived of
citizenship staying in Turkey, Syria or Iraq—they continue to be imprisoned
in a deadlocked limbo situation with the perspective of eventually facing a
possibly unfair trial in the region, or illegal expulsion back to the country of
deprivation (where they might be prosecuted, but are likely to still end up in
limbo eventually, either because the country or residual nationality does not
want to cooperate with expulsion, or because expulsion might violate the non-
refoulement or ne bis in idem principles).
Given the above, it is questionable to what extent citizenship deprivation of
individuals linked to terrorism is ‘efective’ in contributing to national security.
If the intention is to exclude someone from society who poses a threat, the
deprivation of his citizenship may from the perspective of the depriving state
temporarily be an efective measure. On the longer term, however, citizenship
deprivations may in less direct ways also be counterproductive as a counter-
terrorism approach for the depriving state. Although the Council of Europe
stressed the importance of criminal prosecution of alleged foreign ghters,
citizenship deprivation complicates such prosecutions. In this regard, it is
telling that the Dutch prosecutor even requested the Minister of Justice and
Security not to deprive dual-citizen foreign ghters of their Dutch citizenship,
but to repatriate them instead.
Judging from the responses of the Turkish, US and Kurdish authorities,
citizenship deprivation—in particular while the individual stays in a third
Institute on Statelessness and Inclusion (2020), (note 6), p. 228.
Council of Europe Counter-Terrorism Strategy (2018–2022), Strasbourg: Council of
Europe, available at https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900
0016808afc96.
W. F eenstra and A. Stofelen, ‘Justitie ziet Syriëgangers wél graag in Nederland verschij-
nen’, De Volkskrant, 24 October 2019, available at https://www.volkskrant.nl/nieuws
-achtergrond/justitie-ziet-syriegangers-wel-graag-in-nederland-verschijnen~bd43aba3/.
() –
country—is likely to be judged as an insular counterterrorism approach
that contradicts international solidarity. It upsets other governments, causes
diplomatic tensions and may frustrate bilateral relationships with the very
countries that have a strong information position in the ght against global
terrorism. Citizenship deprivation has understandably been criticized as ‘risk
exportation’. Unsurprisingly, there are signs that states of residual national-
ity and third states are increasingly refusing to accept being burdened with
other states’ problems. In line with Bangladesh’s response to the Begum case,
the Canadian government recently even accused its long-time ally the UK of
“ooading its responsibilities” in the case of Jack Letts. If relying on other
states to “clean up the mess” is the new norm, as Esbrook noted, this raises the
question “what happens if all countries want to strip a threatening individual’s
citizenship?” A “race […] to see which country can strip citizenship rst”, as
Macklin put it, will not only lead to increased human rights infringements,
but certainly also not benet counter-terrorism on both national and interna-
tional levels.
Acknowledgements
The authors want to thank the anonymous reviewer for the valuable feedback
on an earlier version, and Caroline Opperman and Malte Stedtnitz for their as-
sistance in writing this article.
Paulussen (2018).
Letts was deprived of British nationality while he was detained in a Syrian prison, but
qualies for a Canadian passport through his father; see D. Sabbagh, ‘Jack Letts stripped
of British citizenship’, The Guardian, 18 August 2019, available at https://www.theguardian
.com/world/2019/aug/18/jack-letts-stripped-british-citizenship-isis-canada.
Esbrook (2016: 1306).
Macklin, A. (2015). Kick-Of Contribution, in: Macklin, A. & Bauböck, R. (eds), The Return
of Banishment: Do the New Denationalisation Policies Weaken Citizenship?, Florence:
European University Institute, pp. 1–6. at p. 6.
