How should the United Kingdom deal with British citizens that left to join ISIS and now wish to return to the UK? This complex question includes a number of legal, moral and political issues. It has been at the heart of the recent coverage regarding Shamima Begum (the so-called “ISIS bride”) and others who have been stripped of their nationality. The decision to strip Begum may be questionable in terms of moral and political leadership, but some of the key legal issues are clearer. As far as the law is concerned, one of the principal legal arguments against the government’s action – that Begum has been rendered stateless – will turn on Bangladeshi law and whether Begum was a Bangladeshi citizen at the relevant time.
Begum fled the UK to join ISIS in Syria when she was 15. Once there, she married an ISIS fighter, the Dutchman Yago Riedjik. They had two children; both of them have died. Now aged 19, she recently gave birth to their third child in a refugee camp. The child died last week. Begum has said that she wants to return to the UK, and she is a British citizen by birth. However, on 19 February, her parents were notified that the Home Secretary decided to strip her of her British citizenship (the Decision). The letter stated that “the order removing her British citizenship has subsequently been made.” Begum has 28 days to appeal the Decision.
The Decision is based on the power in the British Nationality Act 1981. Section 40(2) of the Act provides, “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” (a Deprivation Order). Section 40(4) contains an important proviso: “The Secretary of State may not make [a Deprivation Order] if he is satisfied that the order would make a person stateless.”
The key underlying treaties of relevance to section 40 are the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. The UK has ratified both treaties.
Article 1(1) of the 1954 Convention defines “stateless person” as, “a person who is not considered as a national by any state under the operation of its law.” Article 8(1) of the 1961 Convention prohibits the deprivation of nationality, “if such deprivation would render [the person] stateless.” Article 8 goes on to specify a number of grounds on which nationality may be lost.
Note that the UK has not ratified the 1997 European Convention on Nationality which goes further than Article 8 of the 1961 Convention by prohibiting any deprivation of nationality if the person concerned would thereby become stateless, with the sole exception of cases where the nationality of the State Party has been acquired by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant (Article 7(3)).
The question of whether the Decision is lawful involves a number of issues including: (a) the scope of the section 40(2) power; (b) the application of that power on the facts of Begum’s case, including, in particular, whether the power has been exercised compatibly with the Home Secretary’s obligations under the European Convention on Human Rights (as scheduled to the Human Rights Act 1998) and (c) the operation of the section 40(4) statelessness limitation.
The key points to note on the last of these, the statelessness condition, are as follows.
First, the need for another nationality: section 40(4) essentially asks, “whether the person holds another nationality,” as outlined by the Supreme Court in Secretary of State for the Home Department v Al-Jedda in 2013. Thus, “[t]he effect … is that, in a section 40(2) case, establishing that the person would not be made stateless is a condition precedent to the making of a deprivation order,” as the Court of Appeal recently stated. This means that a Deprivation Order cannot be justified on the basis that the person in question could potentially reacquire a former nationality or acquire a new nationality. In rejecting the Government’s argument to this effect in Al-Jedda, the Supreme Court noted:
“a facility for the Secretary of State to make an alternative assertion that, albeit not holding another nationality at the date of the order, the person could, with whatever degree of ease and speed, re-acquire another nationality would mire the application of the subsection in deeper complexity. In order to make his argument less unpalatable to its audience, [the Government]… limited it to the re-acquisition of a former nationality, as opposed to the acquisition of a fresh nationality. But, with respect, the limitation is illogical; if valid, his argument would need to extend to the acquisition of a fresh nationality.”
Secondly, the other nationality must exist on the date of the Deprivation Order: the critical time for assessing the question of whether a person has another nationality is the date when the Home Secretary makes the Deprivation Order (Supreme Court in Pham v Secretary of State or the Home Department (2015), §§38; 64; 101). In Begum’s case, the letter notifying her parents of the Decision suggests that a Deprivation Order had been made by February 19, 2019.
Thirdly, whether there is another nationality is assessed primarily by reference to the relevant foreign law governing that nationality: “stateless” in section 40(4) has the same meaning as in Article 1(1) of the 1954 Convention (Pham, §§20; 64). When deciding whether a person is considered a national of a state under the operation of its law, that question is “not necessarily to be decided solely by reference to the text of the nationality legislation of the state in question, and … reference may also be made to the practice of the government, even if not subject to effective challenge in the courts,” (Pham, §§31; 38) although it remains questionable whether “practice can stand for law” (Pham, §101). The primacy of foreign law is apparent from the decision in Pham. The Supreme Court upheld the Home Secretary’s Deprivation Order since Mr Pham had Vietnamese nationality, as a matter of Vietnamese law, at the time the Order was made. This conclusion was not altered by the fact that, after the Deprivation Order had been made and the UK was seeking to deport Pham, the Vietnamese Government declined to accept that Pham was a Vietnamese national.
It should be noted that a different provision, and not section 40(4), applies where the person in question is a naturalized British citizen. The conditions for naturalization are set out in the 1981 Act. In such cases, the Secretary of State may make a Deprivation Order where, among other factors, he has “reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory” (section 40(4A)(c)). I considered the history of this provision in my earlier articles on Just Security, but it is not relevant to Begum’s situation because she is British by birth.
It follows – from the three points above – that a critical question in Begum’s case is whether, contrary to statements by Bangladeshi officials, she held Bangladeshi nationality, as a matter of Bangladeshi law, on or before February 19. As one commentator has pointed out, there appears to be some basis for the conclusion that she did. A November 2018 judgment of the UK Special Immigration Appeals Commission explains that the Bangladeshi Citizenship Act 1951 confers Bangladeshi citizenship on a person by descent if his/her father or mother was a citizen of that country at the time of his birth – even where that would make the person a dual national, provided s/he is under the age of 21 (see, for example, §§4;10-11). Begum is not yet 21, and it has been widely reported that her mother is a Bangladeshi citizen. However, as the November 2018 SIAC judgment illustrates, the relevant Bangladeshi law is not clear. For example, it is not clear whether Bangladeshi citizenship must, in all cases, be applied for. This appears to be so from §10 of the judgment, but compare, for example, §§17; 76-80. If so, this would explain the statements of Bangladeshi officials which emphasize that there has been no application by Begum or contact with her family. It would also cast doubt over the lawfulness of the Decision: as the Supreme Court pointed out in Al-Jedda, a Deprivation Order cannot be justified on the basis that the person in question could acquire a new nationality. This aspect of the Decision is, therefore, likely to involve a dispute regarding Bangladeshi law. In addition, as noted above, the question of whether the Decision is lawful involves a number of issues, including application of the European Convention on Human Rights, and there may be other arguable legal challenges to the Decision.