Journal

‘ISIS bride’ stripped of citizenship: what are her prospects on appeal?

By on
22

In the Shamima Begum case, statelessness is the key legal issue

📸 Shamima Begum – credit: Sky News

When it was announced last week that the Home Secretary, Sajid Javid, had made the decision to strip Shamima Begum of her British citizenship, national newspapers were all asking the same question: can the Home Secretary legally do this? And I’m afraid I have to give a true lawyer’s answer of “it depends.”

Under section 40 of the British Nationality Act 1981 a British citizen can be stripped of their citizenship status if the Home Secretary is satisfied that the deprivation is “conducive to the public good”. However, the act also provides that the Home Secretary cannot deprive a British citizen of their citizenship if the result would be to leave that person stateless, i.e. without citizenship of any country.

Therefore, one of the main questions before the Special Immigration Appeals Commission (SIAC), if she does appeal, will be “if Ms Begum’s citizenship is stripped away, will she be stateless”?

Begum herself says that she does not have any other citizenship. It seems clear that she holds no other passport. But holding a passport is distinct from the legal fact of citizenship, and there is a query over whether she does have Bangladeshi citizenship via her parents. The law in Bangladesh seems to be that if you are born to Bangladeshi parents, you automatically have Bangladeshi citizenship. That said, the government of Bangladesh is currently saying that Begum is not a Bangladeshi citizen.

SIAC is a court not many will be familiar with, but it is tasked with reviewing immigration appeal cases where there is a national security element. In SIAC hearings there are both open and closed proceedings.

In open proceedings, the appellant has a solicitor working on the case and barrister tasked with advocating before the commission in the usual way. Cross-examination often involves members of the security services who trot out the line “I can neither confirm nor deny” to a high percentage of the appellant barrister’s questions.

However, in closed SIAC hearings a special advocate is appointed. A special advocate is a highly controversial being: a senior qualified barrister who is able to meet with the client and take instructions but is then able to see all the secret material that has been deemed by the government too sensitive for the appellant to see. The special advocate, once they have seen this evidence, is no longer be able to communicate with the appellant or their legal team.

The special advocate will review this information and participate in the closed hearing in a way that is in the best interests of the appellant. That could involve refusing to partake at all, or advocating that some of the closed material should be disclosed in open proceedings.

Want to write for the Legal Cheek Journal?

Find out more

What this means for Begum is that, if the decision is certified as involving national security, she will never truly know the case against her. Her best chance is to provide as much information as possible to the special advocate in the hope that, should she be found to not be rendered stateless if deprived of her British citizenship, she can provide sufficient evidence for her open and closed counsel to rebut the government’s evidence and convince the commission that stripping her of citizenship would not be conducive to the public good. The secret evidence will likely focus on how deeply ingrained in ISIS the government believe Begum was and her thoughts on her previous conduct: if her TV interview is anything to go by, she may not have helped herself in this regard.

Once a decision has been made, the committee will deliver both open and closed judgments, releasing only the open judgment to the public. Therefore, the public, along with Begum will only know the result of the appeal together with a brief rationale contained in the open judgment. The closed judgment will only be available to those privy to the closed evidence.

As an aside, there has been a hefty hike in the number of applications made by the government to strip people of their citizenship. In 2017, 104 people were deprived of their British citizenship under section 40(2), a 600% hike on the previous year. The infamous ‘ISIS Beatles’ are among those to have had their British citizenship revoked.

Looking to Begum’s newborn son, what, if any, protection should be afforded to him?

Under section 2(1)(a) of the British Nationality Act 1981, a person born outside the UK is a British citizen “if at the time of his birth his mother or father was a British citizen otherwise than by descent”. Begum’s son was born prior to her being stripped of citizenship and therefore, it is possible, depending on how Begum came to be afforded citizenship, that her son is entitled to British citizenship. As she is reportedly British born, that would make her a British citizen “otherwise than by descent” and her son British by descent.

With this, her son would be entitled to the protections afforded by the UN Convention on the Rights of the Child (as the UK is a member of that convention) and the UK would owe a duty of care towards the child. This convention is bought into domestic law through the Human Rights Act 1998 and therefore, domestically, the duties of the government towards children lie in European Court of Human Rights (ECHR) Article 8 ‘the right to respect for family and private life’. It is interesting to note that the UK has not ratified the convention’s optional protocol which would allow a child to bring a case for breach of convention rights before the convention itself (once they have exhausted the domestic legal system). The UK not only has a responsibility of protection toward Begum’s newborn son but also had a responsibility of protection toward Begum from the age of 15 when she was being indoctrinated by ISIS, a duty the family solicitor argues was neglected.

In 2017 the UK successfully facilitated the return of an estimated 425 ISIS members to the UK. Evacuation is clearly an option for Begum’s newborn son — even if the government is unwilling to facilitate the return of Ms Begum herself.

Michelle Moore is currently completing an LLM in human rights law at University College London while practising as a solicitor at a law firm in Lincolnshire.

Comments on this journal are now closed.

Want to write for the Legal Cheek Journal?

Find out more

Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

22 Comments

Anonymous

“The UK … also had a responsibility of protection toward Begum from the age of 15 when she was being indoctrinated by ISIS, a duty the family solicitor argues was neglected.”

How, practically, could the UK have done any more to prevent Miss Begum from being indoctrinated and deciding upon the course of action she took without having taken an active interest in the internet/communication habits of every single individual they consider “at risk” of indoctrination and flight to IS?

Only if the UK was more invasive in it’s interception of communications and monitoring of such individuals, would it ever hope to prevent them being able to leave the country and join IS.

This would raise multiple, serious human rights concerns relating to informational privacy, imprisonment/detention legality (given that you would need to actively prevent these individuals leaving the country) and many, many more.

Long story short: I feel that Miss Begum’s solicitor is full of shit. She’s better off making an emotional appeal and saying she is fully sorry for her actions and that she denounces ISIS, with the hope that at least her son will have a good upbringing in the UK.

Happy for people to disagree, but just remember that she feels beheading is justifiable and before ISIS went into collapse she would have been happy for it to happen to you, your family and friends and anyone else who stood in the way of ISIS’ agenda.

(48)(0)

Anonymous

ALSO – really well written article, Michelle. In comparison to the shite we see about YouTubers, articles written off of social media posts and promotion of new “influencers”, this is truly a breath of fresh air.

(62)(0)

Anonymous

She needs to pinky swear she won’t kill us first.

(28)(0)

Anonymous

She joined IS.

She is still loyal to IS.

Keep. Her. Out.

If the law says otherwise, ignore it.

Any law that says we have to endanger our own citizens by letting back in unrepentant terrorists is plainly wrong and should not be followed.

(26)(5)

Anonymous

The same is true of Brexit voters. Dangerous, violent and attempting to traitorously destroy the country for their twisted ideology. Everyone I don’t like should have their citizenship revoked. If the law says otherwise then ignore the law. Any law that says we have to tolerate the destruction of our country should not be followed.

(11)(25)

Anonymous

Hahaha – what exactly are you calling for via your asinine comment?

(2)(2)

Anonymous

Except Brexiteers aren’t fanatical terrorists seeking to kill everyone who does not follow their barbaric Dark Age ideology.

Try again.

(14)(4)

Anonymous

I wouldn’t be too sure that ALL of them aren’t…

(7)(6)

Anonymous

Brexit supporters have done an infinite amount more damage to the UK than Islamic terrorists (and certainly more than Shamina Begum) and therefore are dramatically more dangerous. Throw them out. If they want to live in a country with no trade agreements so much they can go and live in Somalia.

Alternatively maybe citizenship is a right that the government shouldn’t be able to arbitrarily take away from people no matter how terrible they are.

(9)(22)

Young, Kim

Hang, drawn and quarter her, any way you like. But Begum is the UK’s responsibility.
Begum must be accepted back in the UK, not for the sake of Begum herself, but due to implication, it will have to Britain in general.

First, Ms. Begum cannot be deemed a citizen of Bangladesh automatically. Deciding to accept one as a citizen or not is a matter of national sovereignty. Although the law may state that one is automatically a citizen of the state, it does not mean that the State must accept her as one of her citizens.

Here, we see that Ms. Begum never applied for any citizenship in Bangladesh. While she may be automatically qualified for citizenship in Bangladesh, accepting her into one lies solely on the decision of Bangladesh’s government. Bangladesh made it clear that it will not consider Begum as their citizen, and will deny her entry.

The issue here is more complicated than other 100s former British nationals who had dual citizenship. If the British government makes a precedent that one can be deprived of citizenship for the reason of “public conducive good,” and “good possibility of getting another citizenship” makes one not stateless, what implication will it have to tens of thousands British citizens who are qualified for dual citizenship?

For example, we have thousands of British citizens rushing into Irish embassy to get Irish citizenship before Brexit. Can their citizenship be deprived on a whim without a formal hearing? This raises serious questions.

The second issue is related to the first issue. There is a great danger that this will create “second class citizenship”.

We can all agree that Ms. Begum committed a serious crime by voluntarily signing up in a terrorist organization. So did hundreds of other UK nationals. They have to be punished. But punishment has to be proportional, and one cannot be punished harsher because they happen to have a more diverse background. Deprivation of citizenship is a form of punishment. It can be deemed harsher than a substantial jail term due to its implication.

If one group of jihadists is punished by deprivation of citizenship due to their immigration background while the other group does not, this creates impartiality issue on its own. One cannot be punished more severely than others because of their parents or heritage.

These are the reasons why Ms. Begum has to be returned to the UK. It will be also very unfair to Bangladesh and Syria to deal with Ms. Begum when they have tons of problems on their dish as well. Ms. Begum was born in Britain, raised and educated in Britain before she left. She is the responsibility of the UK, not Syria or Bangladesh. She is the product of British failure, whether it might be an educational, social or immigrational failure.

I am not saying that Ms. Begum deserves sympathy. I think she deserves the opposite. But depriving her of citizenship has a wider implication than her own. Therefore, such a decision has to be decided with care than it seems.

Sajid Javid made a popular decision by stripping her the UK citizenship. But he made a mistake by doing so.

(26)(14)

Anonymous

Zero sympathy

None

(16)(1)

Tommy

Even more concerning is the appeal will be behind closed doors in secret… deprivation of a fair hearing, evidence we shall never see light of….

Another strange fact is the Rotherham victims were classified as groomed, similar age range. This young girl left the UK aged 15… yet grooming has been completely disregarded. I shall never condone her actions but, grooming is very likely.

As for her comments she does not appear to be the sharpest tool in the box, she appears to be brainwashed and is also possibly surrounded by a few isis supporters in those camps, so outright condemnation maybe difficult for her.

Just saying…

(9)(7)

Anonymous

Don’t forget the Manchester bombings, the Westminster attack, 7/7, 9/11….

(2)(6)

A Pierrepointed

Gallows time for traitors (not Begum as she was underage at the time)?

Only outlawed in 1998- time to bring it back?

(4)(2)

Anonymous

Agreed. JRM, Boris and May should at least get life in prison for destroying our great country and making us the laughing stock of the entire world.

(4)(3)

Anonymous

Why hasn’t Sajid St John-Javid started revoking the British passports of Unionist and Republican terrorists in NI since all NI people are entitled to Irish passports. Seems his power as Home Secretary to revoke citizenship only works for people with a certain skin colour/religion. Or is he really only using it to get into No.10?

(7)(12)

Bank of Grievance PLC

Sorry, your race card has expired.

(13)(4)

Anonymous

Any NI convicted terrorists had their British citizenship revoked ?

(5)(1)

Anonymous

Old.

(0)(0)

Anonymous

Like your mum.

(1)(0)

Anonymous

Even older.

(0)(0)

I.H.

LC, who have deleted LOADS of satirical posts without acknowledgment here, have clearly not seen the latest cover of Private Eye…

(3)(0)

Comments are closed.

Related Stories