Shamima Begum:
Shamima Begum was born in the UK but, at age 15, she went, with two other girls, to Syria allegedly to join ISIS. She later married ISIS member Yago Riedijk. In 2017 she and her husband fled to Baghouz. She wished to come to the UK to have her latest baby.
Two previous children died of malnutrition and illness. Her husband is thought to be held by Syrian forces.
According
to this Daily Mail article she claimed that she "lived a 'normal life' in ISIS' capital Raqqa but was 'not fazed' by the brutal execution of its enemies, recounting how she once found an 'an enemy of Islam's' decapitated head in a bin." It is said that she now wants to 'live quietly' back in the UK and ensure her baby survives with the help of the NHS.
ISIS is beyond any doubt an abomination and has indulged in unspeakable cruelty. It nevertheless remains a crucial fact that the rule of law in the UK has to be upheld and this requires that the law is applied properly and impartially to all.
Two previous children died of malnutrition and illness. Her husband is thought to be held by Syrian forces.
According
to this Daily Mail article she claimed that she "lived a 'normal life' in ISIS' capital Raqqa but was 'not fazed' by the brutal execution of its enemies, recounting how she once found an 'an enemy of Islam's' decapitated head in a bin." It is said that she now wants to 'live quietly' back in the UK and ensure her baby survives with the help of the NHS.
ISIS is beyond any doubt an abomination and has indulged in unspeakable cruelty. It nevertheless remains a crucial fact that the rule of law in the UK has to be upheld and this requires that the law is applied properly and impartially to all.
The Home Secretary - Mr Sajid Javid MP - issued an order depriving Shamima Begum (aged 19) of her British Citizenship - BBC News 20 February. It is far from clear whether she holds any other nationality though it is said that she may hold Bangladeshi citizenship. If she does not hold an alternative citizenship then she will have been rendered "Stateless" by the Home Secretary's decision. This post looks at the relevant law.
Citizenship:
Citizenship is the essential foundation of a
person’s legal identity. It is effectively the right to have rights. Without it, stateless people are unable not
only to vote, hold public office, or exit and enter a country freely, but also
to obtain housing, health care, employment, and education. Citizenship is
necessary in order to live a decent human life. A stateless person is not recognised as a citizen by any
state.
Section 40 of the British Nationality Act 1981 (as amended) provides a draconian power to deprive a person of British citizenship status. British nationality law provides for six different types of British nationality:
• British citizenship
• British overseas territories citizen
• British overseas citizen
• British subject
• British national (overseas)
• British protected person
The deprivation of citizenship powers apply to all six of these categories.
International Law:
The United Nations Convention of Statelessness 1961 aims to prevent statelessness and reduce it over time. It establishes an international framework to ensure the right of every person to a nationality. It requires that states establish safeguards in their nationality laws to prevent statelessness at birth and later in life. Perhaps the most important provision of the convention establishes that children are to acquire the nationality of the country in which they are born if they do not acquire any other nationality. It also sets out important safeguards to prevent statelessness due to loss or renunciation of nationality and state succession.
The Convention (Article 8) permits a State to deprive an individual of nationality in specified situations. The UK became a signatory to this Convention on 30 August 1961 and ratified the Convention on 29 March 1966. Article 8 states:
1. A Contracting State shall not
deprive a person of its nationality if such deprivation would render him
stateless.
2. Notwithstanding the provisions of
paragraph 1 of this Article, a person may be deprived of the nationality of a
Contracting State:
(a) in the circumstances in which,
under paragraphs 4 and 5 of Article 7, it is permissible that a person should
lose his nationality;
(b) where the nationality has been
obtained by misrepresentation or fraud.
3. Notwithstanding the provisions of
paragraph 1 of this Article, a Contracting State may retain the right to
deprive a person of his nationality, if at the time of signature, ratification
or accession it specifies its retention of such right on one or more of the
following grounds, being grounds existing in its national law at that time:
(a) that, inconsistently with his duty
of loyalty to the Contracting State, the person
(i) has, in disregard of an express
prohibition by the Contracting State rendered or continued to render services
to, or received or continued to receive emoluments from, another State, or
(ii) has conducted himself in a manner
seriously prejudicial to the vital interests of the State;
(b) that the person has taken an oath,
or made a formal declaration, of allegiance to another State, or given definite
evidence of his determination to repudiate his allegiance to the Contracting
State.
4. A Contracting State shall not
exercise a power of deprivation permitted by paragraphs 2 or 3 of this Article
except in accordance with law, which shall provide for the person concerned the
right to a fair hearing by a court or other independent body.
UK Declaration:
When the UK ratified the 1961 convention it made a declaration for the purposes of Article 8(3):
" ... the United Kingdom retains the right to deprive a naturalised person of
his nationality on the following grounds, being grounds existing in
United Kingdom law at the present time: that, inconsistently with his
duty of loyalty to Her Britannic Majesty, the person
(i)
Has, in disregard of an express prohibition of Her Britannic Majesty,
rendered or continued to render services to, or received or continued to
receive emoluments from, another State, or
(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty."
The UK's declaration is interesting given its reference to "duty of loyalty to Her Britannic Majesty." This appears to be an indirect reference to the ancient common law concept of "allegiance" which, amongst other things, lies at the heart of the offence of treason. Only those who owe allegiance to the Crown may be guilty of treason. The concept of allegiance is not supposed to be a one way street since there is a duty on the Crown to provide those who owe it allegiance with protection. The law relating to the idea of protection is by no means fully developed and the precise extent of the duty is unclear. Shamima Begum is British born and therefore owed a duty of allegiance and the Crown therefore owes her a duty of protection.
House of Commons Briefing Paper 06820 - 9 June 2017:
This Briefing Paper summarises the development of domestic law. Some interesting facts emerge.
The deprivation of citizenship powers in the British Nationality Acts 1948 and 1981 - (BNA) - were not used between 1973 and 1 February 2002.
2002 legislation -
The Nationality, Immigration and Asylum Act 2002 (NIAA 2002)
entered into force on 1 April 2003. For the first time people who had acquired
British citizenship through birth were made subject to deprivation of
citizenship powers. A wholly different section 40 was inserted into the BNA
1981 to replace the original section.
The amended provisions applied to all six types of British citizenship status.
Whilst new section 40 (2) applied to persons who acquired British citizenship
through birth as well as to those who had naturalised or registered as British
citizens, the restriction on making a person stateless meant that the power
could be used only on those who had acquired another nationality.
2006 legislation -
Further changes to the deprivation of citizenship powers in
the BNA 1981 were made in the aftermath of the July 2005 London bombings,
through section 56 of the Immigration, Asylum and Nationality Act 2006 .
With
effect from 16 June 2006, the wording of s40 (2) of the BNA 1981 was changed
again so as to allow the Home Secretary to deprive a person of citizenship if
satisfied that “deprivation is conducive to the public good” (rather than on
the grounds that the person had done something “seriously prejudicial to the
vital interests” of the UK and territories, as previously).
2014 legislation -
The Immigration Act 2014 (IA 2014) amended the BNA 1981 by
inserting new subsection 40 (4A), which conferred upon the Home Secretary the
power to deprive a person of British citizenship obtained through
naturalisation even when to do so would render that person stateless. The
introduction of this power was the Coalition Government’s response to its
failure to deprive an Iraqi born, naturalised British citizen named Hilal
al-Jedda of his British citizenship.
During the passage of the IA 2014 the Coalition Government asserted that the power was consistent with both the UK’s international obligations and with the principle of legal certainty, and argued that deprivation of citizenship may, in certain circumstances, be preferable to criminal prosecution.
Nevertheless the disquiet over the proposed change prompted the Coalition Government to make provision for a regular review of the exercise of the section 40(4A) power. A new section 40B was inserted into the BNA 1981 requiring the Secretary of State to arrange for a review after one year and every three years thereafter.
See the Explanatory Notes on the 2014 Act section 66
Doubts and criticism:
The extension of powers to deprive a person of his citizenship and leave him stateless generated considerable external commentary and criticism, including from law practitioners, academics, NGOs and human rights advocates. Liberty and the Immigration Law Practitioner’s Association, amongst others, issued detailed Parliamentary briefings.
A November 2013 post on the European Network on Statelessness blog - Theresa May but the UK shall not - considered some of the questions raised by the Government’s plans, such as whether nationality is a right or a privilege, whether the UK would be in compliance with its international obligations if it rendered a person stateless, and whether depriving a person of citizenship helps to prevent terrorism.
Open Society Foundations published a legal opinion which concluded that there were good grounds to determine that the UK’s declaration under Article 8(3) of the 1961 Convention on the Reduction of Statelessness did NOT prevent a NEW law authorising deprivation where this would make a person stateless.
Other comment at the time includes - New Statesman 3 February 2014 - Don't trust the government's citizenship-stripping policy and Open Society Justice Initiative 11 March 2014- UK proposal threatens to undermine global fight against Statelessness.
The existing law:
The existing law may be summarised:
The Home Secretary may make an order to deprive a person of British citizenship status in any of the following circumstances:
• The Home Secretary considers that deprivation “is conducive to the public good”, and would not make the person stateless - BNA 1981 (as amended) - s40 (2) and s40 (4). Shamima Begum's case appears to come within this category.
• The person obtained his citizenship status through registration or naturalisation, and the Home Secretary is satisfied that this was obtained by fraud, false representation or the concealment of any material fact - s40 (3)
• The person obtained his citizenship status through naturalisation, and the Home Secretary considers that deprivation is conducive to the public good because the person has conducted themselves “in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory”, and the Home Secretary has reasonable grounds to believe that the person is able to become a national of another country or territory under its laws - s40 (4A).
In the second and third scenarios, deprivation of citizenship is permissible even if the person would be left stateless.
According to the government's document Deprivation and Nullity of British Citizenship; Nationality Policy Guidance (27 July 2017) the following definitions apply:
‘False representation’ means a representation which was dishonestly made on the applicant’s part.
‘Conducive to the public good’ means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.
The meaning of the phrase "unacceptable behaviours" is extensive - see
and this judgment of the Upper Tribunal (Immigration and Asylum Chamber)
and also Citizenship in times of terror: citizenship deprivation in the UK
Right of appeal against deprivation of citizenship:
Before making a deprivation of citizenship order the Home Secretary must give the person concerned written notice, setting out:
• The decision to make an order
• The reasons for that decision
• The person’s right of appeal.
Appeals are made to the First Tier Tribunal (Immigration and Asylum Chamber). Any further appeals are made to the Upper Tribunal and Court of Appeal (or Court of Session in Scottish cases).
However, if the Home Secretary certifies that the decision was taken wholly or partly in reliance on information which he considers should not be made public in the interests of national security, the interests of the UK’s relationship with another country, or otherwise in the public interest, the right of appeal is to the Special Immigration Appeals Commission (SIAC) instead of the First -Tier Tribunal. In such cases onward appeals are to the Court of Appeal or Court of Session.
Appealing against the decision to make a deprivation order is ‘non-suspensive’ – ie the deprivation order can be made (and the person deported from the UK, if they are not already outside the UK) whilst the right of appeal is being exercised.
In the event of a successful appeal, the Tribunal (or SIAC) may make a direction that a deprivation order be treated as having had no effect.
European Convention on Human Rights:
In K2 v United Kingdom (Application 42387/13) the European Court of Human Rights ruled that an application by K2 was inadmissible. The decision is final. K2 was suspected of taking part in terrorism-related activities in Somalia. In 2010, the Secretary of State for the Home Office deprived him of his UK citizenship and barred him from re-entering the country. K2 claimed that these decisions had violated his right to respect for private and family life under Article 8, and had been discriminatory.
Final:
"The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good" - BNA 1981 s40(2). This does not mean that he has to do so. Shamima Begum presents a difficult case and we have to accept that the Home Secretary probably has more detailed information than is available to us. Nonetheless, given that the case appears to fall with section 40(2), the Home Secretary is not permitted to make such an order if to do so would make her stateless. Given the obvious doubt over whether she holds any alternative citizenship it would appear that the deprivation order is probably unlawful. [21 March 2019 - it is reported that the Home Secretary's decision is to be challenged in the courts - The Guardian 21 March 2019].
In any event, there is strong argument that Begum could have been allowed to return to the UK where she could be prosecuted for any relevant criminal offences. Other action might also be possible such as terrorism prevention and investigation measures under the 2011 Act. This is probably the more proportionate response. It would also be a humanitarian response given that Begum's baby would be a British citizen by descent and the baby's rights are unaffected by the Home Secretary's decision.
The deprivation power is a draconian power exercisable solely by a politician. It would be preferable that a requirement for judicial approval be introduced. This would, at least, bring an element of objectivity to the decision-making. Unsurprisingly, it has been said that the Home Secretary's decision is "wrong and smacks of racism" and that his decision has "demeaned his office" and exposed his "political ambitions.
Articles:
Drystone Chambers - Julian Norman - 1 March 2019 - Shamima Begum: Applicable Law on Trafficking, Prosecutions and Citizenship
UK Human Rights Blog - Michael Spencer - 1 March 2019 - Shamima Begum: is stripping her of her citizenship the right response?
Further:
a) Hansard Online - Urgent Question 18 February - UK Nationals returning from Syria
b) The UK has not signed the Council of Europe Convention on Nationality
Article 7 of this Convention permits states to withdraw citizenship on the grounds of “conduct seriously prejudicial to the vital interests of the State Party”, but not if the person would be made stateless.
c) Freemovement 9 August 2018 - How is the government using its powers to strip British people of their nationality?
d) Deport Deprive Extradite - Removing Citizenship
ICS Legal Immigration and Visa Specialists - Deprivation and Nullity of British Citizenship and Appeal Rights
*** POSTSCRIPT ***
It is reported that Shamima Begum's baby died - BBC News 9 March 2019. Home Secretary Sajid Javid is facing criticism after the baby son of Shamima Begum died in a Syrian camp. Ms Begum left London to join the Islamic State group aged 15. Mr Javid revoked her British citizenship when the teenager asked to return.
A family friend said the UK had failed to safeguard the child while Labour said his death was the result of a "callous and inhumane" decision.
A UK government spokesman said the death of any child was "tragic".
The spokesman said the government had consistently advised against travelling to Syria and would "continue to do whatever we can to prevent people from being drawn into terrorism and travelling to dangerous conflict zones".
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