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The Shamima Begum Case: A Just Decision?

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About The Author

Ayesha Bhatti (Guest Contributor)

Ayesha is a final year law student from the University of Nottingham, looking to establish a career in the world of corporate and commercial law. After graduation she hopes to obtain a training contract with a City firm and begin her professional studies en route to qualification. Her other interests include playing squash and badminton, and going to the cinema.

It is against international law to make someone stateless, and now an innocent child has died as a result of a British woman being stripped of her citizenship. This is callous and inhumane.

Diane Abbott

Public opinion has been greatly divided over whether Shamima Begum should be allowed to re-enter the UK, with strong arguments in favour and against. The rise of terrorist attacks has triggered the need for the UK to appear strong against such vulnerabilities. However, the primary response of the UK Government to revoke citizenship in the case of Shamima Begum is incredibly problematic, and has the potential to set a dangerous precedent for future cases. 

This article will explore the legal framework surrounding the UK Government’s decision to revoke Shamima Begum’s citizenship, and will attempt to explain why doing so goes against the constitutional makeup of our country.

Shamima Begum's situation

At 15 years old, Shamima Begum (SB) left the UK to join terrorist group ISIS in Syria. She left alongside two others, during which time she got married and gave birth to three children, all of whom have since died. Now aged 19, SB wishes to return to the UK, but the UK Government has prevented this by taking the drastic decision to revoke her UK citizenship. The controversial decision taken by Home Secretary Sajid Javid, which has triggered responses all over the country, shows a total disregard to basic human rights, and has the potential to break UK law.

The SB case is undeniably difficult. It is hard to empathise with someone who shows very little remorse or emotion generally towards her actions, particularly since those actions were of a terrorist nature with an organisation made infamous for orchestrating tragedies such as the 2017 Manchester bombings. Even more so, there are clear arguments as to why she should not be allowed to return. At a basic level she is a known terrorist threat, so refusal of entry would be the most logical solution to reducing terrorist threats within the UK. Mass media has also portrayed SB in a very particular light, which engenders a justifiable mistrust in her.

Therefore, it is easy to come to a conclusion that she should not be allowed to return. But, do these considerations warrant the drastic decision of deprivation of citizenship? Such a punishment should necessarily follow the seriousness of the crime, and deprivation of citizenship is one of the more extreme measures a State can inflict on an individual, affecting both individual freedom and identity.

When terrorist acts occur, or threats thereof, the law affords partially widened powers to authorities where consent is obtained. Among other powers, suspects can be detained for longer periods of time and certain stop and search powers can be extended. However, these powers are not unfettered; the law still operates to regulate the powers entrusted with authorities such as the Police and the Home Office.

This is seen in A and Others v SSHD [2004] - the well-known “Belmarsh Nine” case - which concerned the indefinite detention of nine foreign nationals suspected of terrorism within the UK. The importance of this case is not lost on lawyers, particularly as nine judges heard the case, and it serves as a good example of how the law protects every individual’s rights, not just those of the majority. A [2004] had massive human rights implications, determining that the law allowing for indefinite detention of foreign nationals was incompatible with the European Convention on Human Rights (ECHR). This demonstrates that Government discretion can still be limited by the courts, even in extreme circumstances such as terrorism.

However, the law is only effective if people believe, follow and respect it. If those in power disregard it for want of convenience, respect for the rule of law is threatened, which in turn threatens the fundamental rights of individuals. Therefore, the decision taken by the Secretary of State has implications that go beyond the case of SB. This decision to deprive SB of her British citizenship sets a dangerous precedent since it demonstrates how an individual in authority can disregard human rights without much opposition. If this is the immediate reaction the UK takes towards such difficult cases, where do we draw the line between combatting terrorism and respecting an individual’s basic human rights? At what point is it possible to say that it is unfair to deprive someone of their birth right to be a citizen of their home country? 

In a sense, this decision may have the effect of opening Pandora’s box. The current makeup of the British population includes first and second generation immigrants, many of whom have never visited the country of their parents or grandparents. As discussed below, the sheer absurdity of Javid’s decision thus reflects a rising tide of fear, and a “knee-jerk” extreme reaction in the fight against terrorism.

The current laws and their competing obligations

This case is multi-jurisdictional and of constitutional importance. At a human rights level, the first point of call is the Universal Declaration of Human Rights (UDHR). Although it merely acts as a guidance, there is significant political sway to view the UDHR as more than aspirational. What the UDHR therefore achieves is a resolution to which countries can adhere without being forced into compliance. The willingness of states to aspire to the UDHR’s values demonstrates a positive attitude towards human rights protection. More specifically to SB’s case, the UDHR is relevant because it acknowledges a right of every human being to have a nationality – this is accompanied by a prohibition of arbitrary deprivation of that nationality. In layman’s terms, it means a human being can never be stateless.

Compare this with our national law. Section 40(2) of the British Nationality Act 1981 (‘the 1981 Act’) allows the Secretary of State to deprive a person of citizenship status if they are satisfied that the deprivation is conducive to the public good. This is subject to Section 40(4) of the same act, which states the Secretary of State may not make such a deprivation if it has the effect of leaving the person stateless.

Perhaps most relevant to this case is Section 40(4A) of the 1981 Act, which is not subject to Section 40(4). This allows the Secretary of State to deprive citizenship on grounds of conduciveness to the public good where-

  1. the citizenship status results from the person’s naturalisation,
  2. that citizen has conducted themselves in a manner “seriously prejudicial to the vital interests of the United Kingdom”, and
  3. there are reasonable grounds for believing that person is able to obtain citizenship outside of the UK.

It was argued by Javid that SB has dual nationality. However, the circumstances in which SB’s dual nationality was founded are somewhat dubious, and its finding perhaps offered a convenient way around the Section 40(4) provision, whilst satisfying Section 40(4A). Of course, the fact of SB’s dual citizenship, as of yet, is not unfounded. Section 3 of Bangladesh’s The Citizenship Act, 1951 states that a person shall be deemed a citizen if their parents or grandparents were born in Bangladesh. Therefore, on the face of it, the Secretary of State is not acting outside of his powers in depriving citizenship, since SB has a clear alternative: her mother was born in Bangladesh.

Issues arise when one considers the obligations imposed on the Secretary of State under Sections 40(2) and 40(4) of the 1981 Act. The Nationality Guidance on Deprivation and Nullity of British Citizenship defines ‘conduciveness to the public good’ as:

[D]epriving [citizenship] in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviour.

With this definition in mind, can it really be said that depriving SB of her British citizenship is truly conducive to the public good? Research indicates little by way of clarification on how the Secretary of State reaches a decision. The very phrasing of these guidelines is vague, and provides opportunity for abuse, although SB does satisfy “conduciveness to the public good” on such a definition, falling either into the category of terrorism or unacceptable behaviour.

However, this definition disregards external factors such as the circumstances of terrorist behaviour, and fails to elaborate on what “unacceptable behaviour” means. Further to this, the Secretary of State’s decision is wholly dependent on the legitimacy of SB’s Bangladeshi nationality. Although by law SB may be eligible, it has been reported that Bangladeshi authorities refuse to acknowledge this, claiming that nationality and citizenship can lapse when a person reaches the age of 21 unless active efforts are made to retain it. SB herself does not claim any other citizenship than to the UK, so even if Bangladeshi nationality is obtained, it is highly likely SB will not pursue her nationality after she reaches the age of 21, in which case there is potential for her to be left stateless.

The consequence of being left Stateless   

If SB were to be left stateless, this would reflect very poorly on the UK and their treatment of individuals, as SB would be deprived of a whole host of rights and remedies.

For example, every human being is entitled to basic human rights, but often these rights are dependent on State action. States put in place laws that respond to the obligations imposed by their human rights obligations. Whereas the right to life may be easily sustained in a country like the UK, the right to adequate housing may not be so, since its enforceability requires the State to actively engage with the right. If a State then operates in a way to disregard that right, or fails to adequately protect it, a human being that is left stateless has no legal recourse to seek remedies for its infringement. In short, an individual who is not stateless has the right to hold a state accountable where it fails to adequately protect their rights, whereas an individual who is left stateless has no such entitlement. 

According to the United Nations High Commissioner for Refugees, the significance of being left stateless not only affects individuals, but society as a whole, increasing tension and hindering socio-economic development.

What next?

There seems to have been a recent, steady rise of Islamophobia in the West, with the media reaction to recent horrific events such as the shooting in Christchurch, New Zealand, clearly contributing to this issue. One study based in Sydney, Australia conducted research into how newspapers can contribute. It found that in almost 3,000 stories relating to Muslims or Islam, they were also associated with words such as “terrorism” or “radical”. Other mediums, such as social media, also play a significant role, particularly as it can reach wider audiences. Therefore, Javid’s decision to deprive SB of her nationality is a sure way of feeding fuel to the fire, and perhaps highlights the risk of the decision being made emotionally rather than fairly or logically. It could be interpreted that taking such a hard line approach is a response to building public bias rather than taking the facts at an objective level.     

If we were to look at her case more generally, the treatment of SB as a serious terrorist threat fails to acknowledge the reality that, as a fifteen year old girl, she was groomed and brainwashed into following a particular ideology. There are many other people who fall into the same category who still hold their British nationality and are under no risk of losing it. If the law is truly blind and impartial, why is one being stripped so publicly of her citizenship whilst others are not?

One third of SB’s entire life was dominated by this ideology, beginning at a very impressionable age. Her life became violent, extremist. She became a mother three times, and mourned the death of her children three times. She is not even twenty years old. Is it so hard to see how she may be physically unable to show any kind of emotion at all? When our mind and body undergoes significant trauma, emotionally they can shut down.

Ultimately, although SB’s case may be a difficult one to empathise with, a certain level of compassion is required, and certainly her circumstances are such that immediate deprivation of citizenship seems disproportionate. The most logical solution in such a novel case is to extradite her back to the UK to be tried for her crimes and dealt with accordingly. This is better than the current solution of the UK ridding itself of all legal responsibility.

The fundamental question to ask here is as follows: what kind of precedent is the UK Government setting for future terrorist instances? Our Government is known for its quick responses to threats that, coupled with judicial accountability, ensure those responses are proportionate. In such times of political disarray and national division, it is now more important than ever to ensure the UK does not fall foul of the rule of law to meet an inconvenience. Legal accountability is at its most pertinent when minority protection is threatened. We may not want to afford such protection to people like SB, but in such difficult circumstances as these, it is a necessity.   

To quote the now President of the UK Supreme Court, Baroness Hale, in the Belmarsh Nine case:

Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities.

The UK Government may not wish to see SB back in the UK, but even in acts of terrorism, the rule of law must be respected. This does not begin with an immediate deprivation of citizenship.

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Tagged: Anti-Terror, Constitution, Human Rights, International Law, Rule of Law

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