Begum still barred from returning to UK or reclaiming British citizenship

7 February 2020 by Marina Wheeler QC

Shamima Begum v Home Secretary, Special Immigration Appeals Commission, 7 February 2020

When she was fifteen Shamina Begum slipped unimpeded out of the country to join ISIL. Only her image, walking with two school friends, was captured as she made her way through Gatwick Airport onto the aircraft. Her return to the UK, five years on is proving more difficult. 

After the collapse of ISIL’s stronghold in Raqqa, Ms Begum appeared, heavily pregnant, in a camp in northern Syria, held by the Syrian Democratic Forces. In an interview she said she wanted to return but did not regret having gone to Syria. 

On 19 February 2019, the Secretary of State, Mr Javid, informed Ms Begum’s family he considered she posed a threat to national security and issued an order depriving her of her nationality. 

As was her right, Ms Begum issued an appeal against the deprivation order to the Special Immigration Appeals Commission (SIAC). Permission to enter the UK to pursue the appeal was refused by the Secretary of State. 

Today, after an important Court Judgment, the prospect of Ms. Begum’s return recedes but the legal contest is by no means over. 

 SIAC decided the three preliminary issues before it in the Government’s favour. 

The first issue concerned statelessness.  

Section 40(2) of the British Nationality Act 1981 empowered the Secretary of State to deprive Ms Begum of her citizenship having determined that she posed a threat to national security. However this was subject to section 40(4) which prevented an order being made if it would make the person stateless. “Stateless” derives from article 1(1) of the 1954 Convention relating to the Status of Stateless Persons and means “not considered as a national by any state under the operation of its law”.  

The question for the Court was whether at the time of the Secretary of State’s decision Ms. Begum was a citizen of another state.  

Ms. Begum’s parents were born in Bangladesh, married there and remained Bangladeshi citizens. Her father came to the UK in 1975 but had since returned to Bangladesh. Ms Begum was born in the UK in 1999. She was a British citizen at birth because at that time one of her parents – her father – had Indefinite Leave to Remain. 

The Secretary of State’s case was that as both Ms Begum’s parents were citizens of Bangladesh at the time of her birth, under Bangladeshi law (section 5 of the Citizenship Act 1951 (as amended)) Ms. Begum was a citizen of Bangladesh by descent.  

The Court heard experts on foreign law, disputing the effect of the Constitution, statute and Presidential orders. On Ms. Begum’s behalf it was argued that in practice citizenship was a matter of discretion for the government and in view of her terrorist affiliations and they would not grant it. Further, it was said that as a result of political pressure the Supreme Court of Bangladesh would decide any case involving Ms. Begum in favour of the Government.  

The correct approach ruled SIAC was for it to consider what view a Bangladeshi court would take if it correctly applied the law of Bangladesh. On this basis it upheld the Secretary of State’s case and ruled that his decision to deprive her of British citizenship did not make Ms Begum stateless. 

The second issue was whether the Secretary of State’s decisions exposed her to a risk of death or inhuman treatment, and thus breached the Government’s extra-territorial human rights policy. 

The Secretary of State was only required to consider foreseeable risks and those which arose as a direct consequence of the decision. So while conditions in the camp were wretched, she was in that situation as a result of her own choices and the actions of others not because of anything the Secretary of State had done. As to the argument that she would face mistreatment if sent to Bangladesh or Iraq, the Secretary of State was entitled to view these possibilities too speculative. 

The third preliminary issue concerned the effectiveness of the appeal, in circumstances where being outside the UK she could not communicate fully or confidentially with her advisors. The Court accepted that in her current circumstances, Ms Begum could not play any meaningful part in her appeal, and to that extent, the appeal would not be fair and effective. But it rejected the argument that this obliged it to allow the appeal.  

There was, it said, no universal rule in the statutory scheme that every deprivation appeal had to be effective in this sense. If there were, it would convert an appeal into an automatic way to overturn a decision. In such a scenario, a terrorist might deliberately put themselves beyond reach. 

Ms. Begum, said the Court, would have to consult advisors and decide what to do next. She might continue with the appeal, presumably doing the best she can or ask for a stay “in the hope that at some point in the future she will be in a better position to take part in it”. 

Where does this leave the parties? 

For the moment, Ms Begum remains a Bangladeshi but not a British citizen, with a pending merits appeal and no prospect of an imminent return to Bethnal Green.

On the Government side, officials tasked with tackling terror can return to the next item on their agenda: preventing those convicted of terrorist offences being released automatically at the half-way point in their sentences.