Deporting dissent: what does this mean for dual citizens?

But the US is not alone in considering, or implementing, laws that enable the deportation of dual citizens without offering them course to contest such orders.

In the first week of April, a leaked paper indicated that Germany’s conservative parties, the Christian Democratic Union and Christian Social Union (CDU/CSU), want to amend Germany’s Nationality Law to enable Germany to revoke German nationality from dual citizens if they are found to be “supporters of terrorism, antisemites and extremists”, though none of these terms are defined in Germany’s criminal law and could potentially be open to individual interpretation.

In response to Nazi persecution of Jews and rampant discrimination based upon race, religion and political allegiance, Article 16 of Germany’s Constitution, the Basic Law, was introduced to ensure: “[n]o German may be deprived of his citizenship”. Germany’s Nationality Law provides a very high bar to deportation or stripping a dual citizen of German nationality. Nonetheless, Germany has readily tried to deport foreign residents.

In the first week of April, the state of Berlin issued orders to deport foreign residents from Poland, Ireland and the US for their participation in Free Palestine protests, which has led to allegations that the accused are Hamas supporters, a designated terrorist organisation. None of the foreign residents have been convicted of a crime.

A lawyer, Alexander Gorski, for two of the protesters under deportation orders told +972 Magazine: “What we’re seeing here is straight out of the far right’s playbook. You can see it in the U.S. and Germany, too: political dissent is silenced by targeting the migration status of protesters.”

Gorski added that this is the first time deportation orders – three of the four issued – reference Germany’s national pledge to defend Israel as the reason for deportation, though this is a principle that doesn’t bear constitutional weight according to some lawyers.

Gorski likened the situation in Germany to that of US permanent resident Mahmoud Khalil, who was seized by ICE in March and remains in immigration detention. Louisiana judge Jamee Comans ruled on April 11 that Columbia University activist Mahmoud Khalil can be deported on grounds that he threatens foreign policy. Khalil’s lawyers have until April 23 to file applications for relief to stop his deportation, and if they didn’t make deadline, Comans would file an order of removal to either Syria or Algeria.

Khalil was detained on March 8, purportedly for his leadership role in pro-Palestinian protests at Columbia University in 2024. The Department of Homeland Security was given a deadline of Wednesday April 9 to provide the evidence they have claimed exists for Khalil’s threat to foreign policy. Khalil’s team are also challenging his deportation in a New Jersey federal court.

Also in the US, President Trump exercised the Alien Enemies Act of 1798, which had previously been used only occasionally to detain or deport nationals of an “enemy nation” during invasion or wartime. In February, Venezuelan gang Tren de Aragua was declared a terrorist organisation by the US State Department. The Alien Enemies Act has been invoked to speedily remove all Venezuelan citizens over the age of 14 who are deemed gang members and do not hold US citizenship, nor permanent residency. Though Trump’s proclamation was blocked by US District Judge James Boasberg hours after the proclamation was made. Boasberg ordered deportation flights to be returned and no further flights to leave, Trump’s administration had already deported around 250 people to El Salvador.

Earlier this week, Trump told the media he was considering deporting naturalised and US-born citizens accused of “heinous crimes”, only if it was legal. He said, “We always have to obey the laws, but we also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking, that are absolute monsters.”

University of Notre Dame professor Erin Corcoran, an immigration law expert, told Reuters, “There is no provision under U.S. law that would allow the government to kick citizens out of the country.”

The last time the Alien Enemies Act was used was in World War II, when 31,000 accused enemy aliens – mostly Japanese, Italian and German nationals – were placed in internment camps and military facilities. War must be officially declared for the Act to be effective, and only Congress has the authority to do so.

As the Germany and US governments attempt to deport dual citizens and foreign residents under obscure or new and vague laws, LSJ Online asked Kim Rubenstein, professor of constitutional and citizenship law at the University of Canberra. whether such actions could be taken in Australia.

Australia has pathways to deportation that could be used

Under the Australian Citizenship Act, a dual citizen can be stripped of their Australian citizenship as part of the sentencing process for charges of terrorism and foreign incursions if the court is satisfied the person’s crime was “so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia”.

Rubenstein says that the benchmark for Australian dual citizens may not be as high as many people may believe.

“In essence, the Commonwealth has legislative power over anyone who is an alien, and an alien under the Constitution is anyone who has a foreign citizenship,” she says.

There is the potential capacity to remove that person to that other country, an idea that was introduced at the end of 2015 [when the Australian Citizenship Act was amended]. I’ve been arguing that this has created an unhealthy second-class citizenship in Australia in that that two people can do exactly the same thing under criminal law, and only one of them can be removed from the country on the basis that they’re a dual citizen, even though they’ve done exactly the same thing.”

Rubenstein explains that the Australian Parliament and decision makers would probably assert that it’s their call to determine if someone is a dual citizen, however “in practical political terms, you’d still need the other country to accept that person back. So, there might be a diplomatic stoush over it, but there are certainly examples, like Neil Prakash.”

Accused of being an Islamic State member and a terrorist, Prakash was alleged by Australia to be a Fijian citizen, stripped of his citizenship, and denied diplomatic protection and assistance when Fiji refused to recognise him as a citizen. Prakash was arrested in Turkey in 2022and extradited to face a Melbourne court under six terrorism-related charges. News since 2024 has been limited.

Under Section 33AA of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015, a person with dual citizenship renounces their Australian citizenship if they engage in conduct that is inconsistent with their allegiance to Australia.

Such conduct is defined as including:

(a)  engaging in international terrorist activities using explosive or lethal devices;

(b)  engaging in a terrorist act;

(c)  providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;

(d)  directing the activities of a terrorist organisation;

(e)  recruiting for a terrorist organisation;

(f)  financing terrorism;

(g)  financing a terrorist;

(h)  engaging in foreign incursions and recruitment.

A dual citizen’s Australian citizenship can be revoked when any such conduct is done with the intention of advancing a political, religious or ideological cause and with the intention of influencing the government or intimidating the public.

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015, according to Parliament, was intended to “address the threat posed by dual citizens participating in serious terrorism-related activities and to remove them from the Australian community or prevent their return.”

The threat of deportation and stripping of citizenship has been politicised for at least a century.

Rubenstein explains that between January 26 1949, when Australian citizenship started, until 1987, Australians were both British subjects and Australian citizens. From 1987, Australians were solely Australian citizens and British subjects faced removal if they hadn’t sought citizenship. Until 2002, if an Australian took up a second citizenship they would lose their Australian citizenship, and until 2015, there was a provision whereby a person could be stripped of their Australian citizenship if they were a dual citizen found to have fought for another country at war with Australia.”

The Citizenship Amendment introduced in 2015 was effectively a weaponisation of migration and border laws that disrupted social cohesion, Rubenstein argues – and there are not substantial protections for citizenship.

She says, “We don’t have a rights framework of protection in our Constitution, and we don’t even have a strong rights protection for citizenship. During COVID, there were thousands of citizens who were stranded, but there really wasn’t a very clear framework saying they had a right of return. The Migration Act revolves around non-citizens… so, there are arguments to say that citizens have a right to be in Australia, but it’s not  written in the constitution.”

Rubenstein says the result is that “there is immense constitutional power if a parliament in Australia wanted to do similar things [to Washington and Berlin] effectively. The Migration Act, as it applies to permanent residents, allows that if you are convicted of certain criminal offenses under that Act, you can have your permanent status cancelled and you can be removed. So, there’s nothing formally in our structure that would prevent a government who believes that it has the mandate or the popular support to effectively do something like [Washington or Berlin].”

Despite Australia being signatory to international treaties, Rubenstein says “government could say, ‘well, we’ve taken that [our obligations under treaties] into account, and we still determine that we’re going to remove this person’. The Commonwealth has immense power to remove those who are not citizens.”

In both the US and Germany, students have been accused of antisemitism and expressing support for a terrorist organisation, Hamas, as a basis for deportation. Rubenstein says that in Australia, “There could be a structure set up so that you define any criminal activity as the basis for removing a citizen from Australia. Protest activity could be determined as criminal, though once found guilty, you’d still have to have a court involved in removal.”

Whether there’s political and public support for making a show of deporting Australians with dual citizenship is dubious. As Rubenstein points out, the Australian Bureau of Statistics indicates that more than half of Australians were either born outside of Australia or their parents were. Rather than wielding legislation to craft a wedge between Australian citizens and dual citizens, or permanent residents, the focus of politicians ought to be fostering conditions that prevent crime and favour cohesion, Rubenstein suggests.