Shamima Begum: a case of discriminatory ‘conditional’ citizenship?

Shamima Begum: a case of discriminatory ‘conditional’ citizenship?

Shamima Begum: Stripped of her UK citizenship (Credit: BBC)

A backlash is growing against the decision of the Home Secretary that the teenager who travelled from east London to Syria to join Islamic State in 2015 could be stripped of her UK citizenship. Lawyers for Shamima Begum are likely to appeal to the Special Immigration Appeals Commission (SIAC). The central issue is whether Begum has been rendered stateless, which would breach the British Nationality Act 1981. Sajid Javid’s decision may also be judicially reviewed on grounds of ‘reasonableness’ and ‘proportionality’.

Section 40(2) of the Nationality Act 1981 provides that: ‘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.’ However this is subject to a restriction in Section 40(4) that an order cannot render someone stateless.

Indeed, in 2013 the Supreme Court held in the case of Al-Jedda (where an individual was deprived of his citizenship for national security reasons) that the fact an individual might be able to easily become a citizen elsewhere is not enough.

The Home Office contends that Begum is a dual national of Bangladesh by virtue of her mother’s Bangladeshi nationality. The nationality law of Bangladesh says citizenship passes through bloodline (jus sanguinis), irrespective of the place of birth. However, citizenship would lapse at the age of 21 should an individual make no active effort to retain that citizenship.

This has now been denied by the Bangladeshi government which maintains that Begum has been ‘erroneously identified as a holder of dual citizenship’.

In the case of E3 and N3, two British citizens of Bangladeshi origin were stripped of their UK citizenship when they were in Bangladesh and Turkey, respectively. The SIAC allowed their appeal in 2018, however, because they had not sought to retain their Bangladeshi citizenship, which meant that it automatically lapsed after they turned 21.

It would appear, therefore, that 19 year old Begum is not stateless. Fahad Ansari of Duncan Lewis on Free Movement, however, has argued on the Free Movement blog she has been rendered ‘de facto stateless’ firstly because, being in Syria, it is virtually impossible for her to prove her Bangladeshi citizenship. Secondly, even if she can prove it, it is not practically possible for her to exercise any citizenship rights. Should she make no effort to retain her citizenship, moreover, might she become stateless by default in two years’ time? The answer is unclear.

Even if Begum has not been rendered stateless, it could be argued the Home Secretary’s decision is unfairly discriminatory. The former Independent Reviewer for Terrorism Legislation, David Anderson QC, told the Press Association that the decision ‘effectively brings about two classes of citizenship’. This is because only the children of immigrant dual nationals could ever be deprived of citizenship in this way: an individual whose parents only had British nationality would retain a right to return to this country. Indeed, former chief prosecutor Nazir Afzal has asked whether the citizenship rights of dual nationals are ‘conditional’. There is further ambiguity over the nationality of her new-born child, who may be entitled to British nationality.

This relates to a wider discussion about the reasonableness and proportionality of depriving Begum of her British citizenship. As the immigration barrister behind Free Movement Colin Yeo has noted, deprivation powers were not used at all between 1973 and 2002. Between 2006 and 2016, the power to deprive citizenship if ‘conducive to the public good’ was used 50 times. In 2017 alone, it happened 104 times. Unlike in the 2015 Supreme Court case of Pham, where the appellant was deprived of citizenship for being a direct participant in terrorism abroad, it is not clear if Begum’s actions meet that severity threshold.

A proportionality assessment, for the purposes of judicial review, would involve an assessment of reasonable alternatives. The barrister blogger Matthew Scott, for example, has argued the Home Secretary could use a ‘Temporary Exclusion Order’ under the Counter-Terrorism and Security Act 2015.

What is certain, in the words of Lord Carlile, former Independent Reviewer of Terrorism Legislation, is that this is a ‘complex issue’ that ‘could run for a very long time through the courts’, and Begum could stay where she is ‘for maybe two years at least’.

Morally, at least, Voltaire offers food for thought: ‘It is as if we threw into our neighbours’ fields the stones which incommode us in our own.’ Alternatively expressed, if the UK government evades responsibility for those who grew up in this country but accidentally have another citizenship, it could face the same tactic being used against it – people who grew up elsewhere but happen to be entitled to UK citizenship.