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The “hostile environment” seeps into criminal trials: defendants must state nationality or face prison


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From this week, defendants in the criminal courts must state their nationality. Anyone who fails to do so can be jailed for up to a year.

The Criminal Procedure (Amendment No. 4) Rules 2017 (2017 No. 915 (L. 13)) came into force on 13 November 2017. They stipulate that:

5. The court

(a) at the first hearing in the Crown Court must require a defendant who is present―

(i) to provide, in writing or orally, his or her name, date of birth and nationality, or

(ii) to confirm that information by those means, where the information was given to the magistrates’ court which sent the defendant for trial; and

(b) at any subsequent hearing may require such a defendant to provide or confirm that information by those means.

Similarly, the magistrates’ court:

(a) at the first hearing in the case must require a defendant who is present to provide, in writing or orally, his or her name, date of birth and nationality; and

(b) at any subsequent hearing may require such a defendant to provide that information by those means.

In other words, as the accompanying explanatory note puts it, this information will generally be collected at “the beginning of each case in each court”.

These rules are made possible by section 162 of the Policing and Crime Act 2017. It stipulates a prison sentence of up to 51 weeks for someone who fails to comply “without reasonable excuse”. Failure to comply can be providing “false or incomplete information”, as well as outright refusal. This is supposed to

provide an added incentive for suspected foreign nationals to comply with the police in establishing their identity on arrest. It will also provide a second opportunity to capture this information for those who failed to give these details to the police.

What none of these instruments tell us is what degree of enquiry the courts will undertake. On its face, the law seems to require only that a defendant state what nationality he or she is. What happens if a judge has doubts? At the last census, 9.5 million people had no passport, many of whom will be British citizens. Are they to be tried and sentenced for that crime?

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And what about people who genuinely do not know their nationality or all their nationalities? If the information on nationality is incomplete without reasonable excuse, the defendant will be committing a criminal offence. As we have seen with the remarkable Australian dual citizenship saga, though, it is no simple thing to declare all of one’s nationalities. Many countries, including the UK, confer citizenship automatically with or without the knowledge of the person concerned. Eight Australian law makers have had to resign their seats in recent months because the Australian constitution forbids foreign citizens from holding public office and it turned out that, without really knowing it, they had automatically acquired the citizenship of other countries at birth. Australia’s highest court held that the office holders in question should have known better. It is not inconceivable that a UK court might reach the same conclusion, depending on the facts.

What about a Palestinian born in Syria, for example? There is no nation state of Palestine capable of conferring citizenship and while the person may think of themselves as Syrian they may well not have acquired Syrian nationality either. What about a Kuwaiti Bidoon who is no doubt Kuwaiti but who cannot prove it because the Kuwait authorities refuse to document Bidoons? What about an Eritrean who the Home Office wants to send to Ethiopia?

These are all examples from my own cases.

That said, it should not particularly matter one way or the other to judges and magistrates in the criminal courts, who have quite enough to worry about as they struggle with a creakingly under-resourced criminal justice system. As Martha Spurrier of Liberty says:

Most offences have absolutely nothing to do with immigration, let alone nationality. Bringing border controls into our courtrooms is simply another manifestation of this government fuelling anti-migrant sentiment, division and suspicion.

It is hard to improve upon those sentiments.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.