On 19th February 2019, the Home Secretary, Sajid Javid, signed an Order which revoked British nationality from Shamima Begum, a 19 year old girl wishing to return to the UK from Syria. Shamima left the UK aged 15 and travelled to Syria where she married into the Islamic State (“IS”) and reportedly gave birth to two children who subsequently died. On 14th February 2019, Shamima told British media that she wanted to return home, to the UK, with her third child who was born in February in a Syrian refugee camp. Sadly, it was reported on 8th March 2019 that Shamima’s son had died. As at the time of writing, Shamima remains in the refugee camp.
Deprivation of British Citizenship
Section 40(2) of the British Nationality Act 1981 (“the Act”) (as amended) allows the Home Secretary to deprive a person of their British citizenship if “…that deprivation is conducive to the public good” but not if such deprivation of citizenship “…would make a person stateless” (Section 40(4)).
“Conducive to the public good” is defined in Chapter 55 of the Nationality Policy Guidance (published 27th July 2017) as: “…in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours”.
Whilst Section 40(4A) of the Act allows the deprivation to render a person stateless where the person’s conduct “…is seriously prejudicial to the vital interests of the United Kingdom…” and there are “…reasonable grounds for believing…” that the person can obtain another nationality, this only applies to naturalised British citizens. It cannot, therefore, be applied to Shamima Begum who was born a British national.
Therefore, the Home Secretary can only deprive Shamima of her British citizenship if she is not rendered stateless as a result.
Statelessness
To satisfy Section 40(4) of the Act, the Home Secretary believes Shamima automatically has Bangladeshi citizenship by descent. Despite having never been to Bangladesh, it has been reported that, under Bangladeshi law, Shamima is automatically Bangladeshi unless she fails to confirm her Bangladeshi nationality by the age of 21. As Shamima is 19 years of age (which distinguishes her from the E3 and N3 cases in 2017 where the two men were aged over 21 (E3 and N3 v SSHD SC/138/2017 and SC/146/2017)), she still has time to confirm her Bangladeshi nationality. Therefore, the Home Secretary believes, she is not rendered stateless through deprivation of her British citizenship.
However, on 21st February 2019, Bangladesh’s ministry of foreign affairs denied that Shamima is a Bangladeshi citizen and said that she would not be allowed into the country.
Appeal
As has been widely reported, Shamima intends to pursue an appeal against the Home Secretary’s decision, as is her right. Given that Shamima’s actions are related to terrorism, matters of national security are involved and it is likely that any appeal will be heard by the Special Immigration Appeals Commission (SIAC) where the hearing is unlikely to be public. During the hearing, Shamima and her lawyer may not be permitted to hear “secret” evidence – hence why the SIAC is described as a “secretive court”. If the ruling of the SIAC maintains the Home Secretary’s decision, Shamima will only be able to appeal the ruling (to the Court of Appeal) on a point of law.
There has been much criticism of the Home Secretary’s decision not to pursue alternative action against Shamima. There are a number of alternative measures which the Home Secretary could have pursued, with proper procedural safeguards, such as prosecution, Temporary Exclusion Orders, Terrorism Prevention and Investigation Measures (TPIMs), or other measures under terrorism legislation, but none of these appear to have been considered in the Home Secretary’s decision to deprive citizenship. By revoking her British citizenship without a hearing, he has convicted her of offences without a trial or proper scrutiny.
Children
Deprivation of British citizenship means that person is no longer British (as at the date given in the Order). It does not mean they were never British (that would be nullification, which can affect the British nationality of children or spouses), only that their citizenship has been terminated.
Consequently, Shamima’s children were British because when they was born their mother was a British citizen – prior to deprivation thereof. In addition, Shamima was born in the UK (otherwise than by descent) so she was able to pass on British nationality to a child born outside of the UK. There has been much criticism of the Home Secretary for failure to consider the human rights and welfare of Shamima’s British child when depriving her of her British citizenship.
On 11th March 2019 the Home Secretary said that there are no “easy answers” and recognised that the death of the baby was a tragedy, but that he could not set a “precedent” to allow ISIS fighters to return to the UK.
Shamima Begum is one of many mothers living in Syrian refugee camps whose children are dying from the harsh conditions. This is not an isolated case of citizenship deprivation – many countries are refusing to permit former ISIS members returning. However, as some have commented, this approach transfers the problem onto another country’s doorstep and may not be a successful means of preventing future terrorism. It is surely a situation which requires wider, coordinated effort to resolve.