Shamima Begum: is stripping her of her citizenship the right response?
1 March 2019
Michael Spencer is a pupil barrister at One Crown Office Row.
The fate of Shamima Begum, the British teenager who joined the Islamic State in Syria (ISIS) and has asked to return home, has divided opinion.
Home Secretary Sajid Javid’s decision to deprive the 19-year-old mother of her citizenship is apparently popular: a recent poll found that 78% support the move.
But others have raised concerns about the propriety of using such a draconian power against a British citizen by birth in circumstances where she may be rendered stateless, also leaving the fate of her child uncertain.
From Bethnal Green schoolgirl to ISIS bride
Ms Begum was born in the UK to parents of Bangladeshi heritage. She was one of three 15-year-old schoolgirls from the Bethnal Green Academy who travelled to Syria via Turkey in 2015 to join ISIS.
The Metropolitan Police subsequently apologised to the families for failing to warn them that the schoolgirls were at risk and suggested that they would not face criminal charges if they returned to the UK.
After arriving in Raqqa, Syria, Ms Begum married ISIS fighter Yago Riedijk, a Dutch national. She had three children with him, two of whom died. Her youngest son, Jarrah, was born in a Syrian refugee camp in February 2019.
The press caught up with Ms Begum just before she gave birth and she has given a series of incendiary interviews. She claimed that she had been “just been a housewife for the entire four years” and that she had not done anything “dangerous” or made propaganda. However, she also said she had “no regrets” about joining ISIS and suggested that the Manchester Arena bombings were justified because of the bombing of civilians in Syria.
Conducive to the public good
The Home Secretary’s power to deprive Ms Begum of her citizenship derives from section 40(2) of the British Nationality Act 1981. The scope of this power has expanded greatly in recent years. As currently in force, it permits the Secretary of State to deprive any person of their citizenship status if he is “satisfied that deprivation is conducive to the public good,” provided in doing so he does not make them stateless.
Mr Javid does not have to be satisfied that Ms Begum poses a current threat to national security. In Pham v The Secretary of State for the Home Department  EWCA Civ 2064, the Court of Appeal held that deprivation may be conducive to the public good where the citizen has through past conduct
breached his duty of loyalty so fundamentally that it cannot be reasonable to expect the state to continue to provide him with the protection which flows from citizenship .
The facts in Pham were very different – Mr Pham had been convicted of participating in violent terrorist crimes. Ms Begum, by contrast, maintains that she personally had no involvement in terrorism apart from being a “housewife” to an ISIS operative. Nevertheless, many would consider that by leaving the UK to join ISIS and refusing to express remorse she has deprived herself of the right to call herself a British citizen.
Article 15 of the Universal Declaration of Human Rights provides that “no one shall be arbitrarily deprived of his nationality.” In K2 v the United Kingdom 42387/13 (inadmissible)  ECHR 238, the European Court of Human Rights held that while the revocation of citizenship could “raise an issue” under Article 8, because of its impact on private and family life, the use of the s40 power against a participant in terrorism was neither arbitrary nor disproportionate.
A further distinguishing feature of Ms Begum’s case, however, is that she is the sole carer of a new-born child, who is likely to hold British and Dutch nationality. The Home Secretary is required to have due regard to Jarrah’s best interests under s55 of the Borders, Citizenship and Immigration Act 2009. It is difficult to see how his best interests could be served by either separating him from his mother or leaving him with her in a Syrian refugee camp. That factor is likely to weigh heavily in the proportionality assessment.
Citizen of nowhere
Even if he is entitled to be satisfied that deprivation is conducive to the public good, Mr Javid’s decision will not be lawful if it renders Ms Begum stateless. A stateless person is defined by reference to the UN Conventions on Statelessness as
a person who is not considered as a national by any State under the operation of its law.
Mr Javid’s decision appears to have been taken on the basis that Ms Begum holds Bangladeshi citizenship. Whether that is so is a question of foreign law which will need to be established through expert evidence. But the case law establishes two relevant principles.
First, Ms Begum must be a Bangladeshi national by operation of law at the time of the Home Secretary’s decision (Al Jedda v Secretary of State for the Home Department  UKSC 62). It would not be enough for her have an option to acquire Bangladeshi citizenship in the future, for example through application or registration.
Second, however, it does not matter whether Ms Begum can in fact exercise her rights as a Bangladeshi citizen, provided she is a national by operation of Bangladeshi law (see Pham Secretary of State for the Home Department  UKSC 19). Therefore, the fact that the Bangladeshi Government refuses to accept that Ms Begum is a citizen or may in the future take action to deprive her of her Bangladeshi citizenship is not determinative.
The Special Immigration Appeals Commission (SIAC) recently considered the relevant provisions of Bangladeshi nationality law in E3 and N3 (Exclusion: Preliminary Issue)  UKSIAC SC_146_2017. It held that two British ISIS operatives who were born to Bangladeshi parents automatically held Bangladeshi nationality until the age of 21, after which age their citizenship lapsed. Assuming Ms Begum’s parents have Bangladeshi nationality, this suggests that she will also until the age of 21.
It is an indication of the arbitrary nature of nationality law that Ms Begum’s youth may be the reason why she can be deprived of her British citizenship, while the older appellants in E3 and N3 could not. Further, regardless of the strict legal position, it is highly unlikely that Ms Begum will ever be able to exercise any rights as a Bangladeshi citizen, leaving her and her child in a perilous state of limbo in one of the most unstable regions in the world.
Return and prosecution
Some commentators have suggested that Ms Begum and others who travel to ISIS should be returned to the UK to face justice here. This includes US President Donald Trump, who has tweeted that the UK should “take back” ISIS fighters captured in Syria and “put them on trial.”
Mr Javid has a number of powers which would enable him to manage Ms Begum’s return. Provided he reasonably suspects she has been involved in “terrorism-related activity” and poses a threat to security in the UK, he could impose a temporary exclusion order under the Counter-Terrorism and Security Act 2015. This would permit her return only on strict licence conditions. If on her return Ms Begum is still considered a threat to national security, further restrictions on her liberty could be imposed through a Terrorism Prevention and Investigation Measure (TPIM).
Prosecuting Ms Begum, however, may be more problematic. It is extremely unlikely that Ms Begum could be prosecuted for treason, an offence whose core elements have remained unchanged since 1351 and for which there have been no successful prosecutions since ‘Lord Haw-Haw’ in 1945.
It may be possible to prosecute under the Terrorism Act 2000, which includes offences of being a member of or aiding and abetting a proscribed terrorist organisation, though it may prove difficult to establish that Ms Begum has been involved in any such activity.
The Counter-Terrorism and Border Security Act 2019 introduced new offences targeted at those who travel to Syria and Iraq, including an offence of entering a designated area without reasonable excuse. However, this could not be applied to prosecute Ms Begum retrospectively.
The UK has been described as being in the “vanguard of citizenship deprivation”. A freedom of information request reveals that between 2010 and 2015 the deprivation power was used on 81 individuals and since then this number is likely to have risen to the hundreds. The UK’s approach contrasts with other European countries such as France or the Netherlands which have returned their citizens from Iraq and Syria to face justice at home.
Ms Begum’s case is an illustration of the alarming scope of the power and a potentially disturbing precedent in itself.
First, while historically the deprivation power applied only to naturalised citizens, s40 as currently worded permits its use against those who like Ms Begum were born with British citizenship. This risks creating a two-tier form of citizenship whereby second or third generation immigrants of foreign descent may be deprived of their citizenship, even if they hold no other discernible link with their ‘country of origin’.
Second, the discretion given to the Secretary of State is extremely broad – citizenship may be deprived in any circumstances that would be “conducive to the public good.” This raises a difficult question about the extent to which citizenship should be considered as a privilege or a right, particularly in circumstances where Ms Begum may not have personally engaged in any violent activity.
Third, by exercising the power while Ms Begum is outside of the UK and in circumstances where she has not been charged or convicted of any criminal offence, the Home Secretary has left her with little opportunity to defend herself. While the SIAC procedure provides some safeguard, the appeal may be conducted in secret and in her absence without her seeing the evidence against her. She and her child will effectively be condemned to a form of banishment by trial in absentia. Hence (in the words of Shakespeare’s star-crossed lover Romeo, when facing the prospect of banishment from Verona) they are “banish’d from the world … And world’s exile is death.”