On 7 February 2020, the Special Immigration Appeals Commission (SIAC) upheld the Home Secretary’s decision to deprive Shamima Begum of her British citizenship. The SIAC dismissed the claim that she was made stateless, ruling that she could apply for Bangladeshi citizenship through her parents, despite the statement of the Bangladeshi government that she is not a Bangladeshi citizen and that there is “no question of her being allowed to enter into Bangladesh.” Her legal representatives have said she intends to appeal the ruling.
The SIAC ruling, like other British court rulings on the deprivation of citizenship, is inconsistent with international law, while the Home Secretary’s original decision is a violation of the rule of law. The ruling continues a worrying trend of British courts slavishly deferring to the executive on matters of national security to the detriment of the rights and freedoms of ordinary Britons. [1] [2]
RECENT DEVELOPMENTS IN THE UK LAW ON DEPRIVATION OF CITIZENSHIP
The British Nationality Act 1981, subsection 40(2), empowers the Home Secretary to remove a person’s citizenship for “the public good”. In S1 and others v SSHD [3], the SIAC clarified that the decision to remove a person’s citizenship would be for the public good if the person posed a threat to national security, which would be assessed on their past and present conduct. Worryingly, the Court of Appeal has recently ruled that “break[ing] the obligations which apply to… a citizen”[4] is sufficient grounds for removing a person’s citizenship. As Dr Joshua Kerr has pointed out, this ruling is dangerous because “the fundamental obligations of the British citizen qua citizen are not explicitly spelled out anywhere.”[5]
Prior to the Immigration Act 2014, subsection 40(4) of the British Nationality Act 1981 did prohibit the Home Secretary from removing a person’s citizenship if it would make them stateless. In SSHD (Appellant) v Al-Jedda (Respondent)[6], the Supreme Court held that it was no defence that the Respondent could apply for Iraqi citizenship; the Home Secretary had stripped him of his British citizenship and made him stateless, which was unlawful.
In response, Parliament passed the Immigration Act 2014, which inserted subsection 40(2A) into the British Nationality Act 1981. The subsection allows the Home Secretary to remove a person’s citizenship if he believes that “the person is able… to become a national of [another] country or territory” notwithstanding that the person does not have any other citizenship at the time he loses his British citizenship. As most African, Asian and European nations have a path to citizenship for persons born of descendants of that country, subsection 40(AA) puts at risk the British citizenship of many young immigrants, who have come to the UK with their families and acquired citizenship through naturalisation.
This risk was made plain by the decision of the Court of Appeal in Pham v SSHD[7]. In that case, the Respondent was a British citizen of Vietnamese descent and could apply for Vietnamese citizenship. It was accepted by the Court of Appeal that the Vietnamese government did not always follow its own laws and that Vietnamese citizenship, although de jure in the hands of the courts, was de facto at the discretion of the Vietnamese government, which had already stated that it would not accept the Respondent as a citizen. Nevertheless, the Court of Appeal upheld the Home Secretary’s decision to remove the Respondent’s British citizenship, making him stateless.
The Court of Appeal reached the decision in Pham by incorrectly interpreting the definition of “stateless person”. Article 1 of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as “a person not considered as a national by any [s]tate under the operation of its law.” The Court of Appeal decided to interpret “under the operation of its law” as meaning “under the letter of the law”, ignoring the question of whether the law operated in practice. That the Court of Appeal erred is evident from the United Nations High Commissioner for Refugees’ Handbook on the Protection of Stateless Persons, which states at paragraph 23 (emphasis added) that:
“Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice and any review/appeal decisions that may have had an impact on the individual’s status. This is a mixed question of fact and law.
Applying this approach of examining an individual’s position in practice may lead to a different conclusion than one derived from a purely formalistic analysis of the application of nationality laws of a country to an individual’s case. A State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to “law” in the definition of statelessness in [a]rticle 1(1) therefore covers situations where the written law is substantially modified when it comes to its implementation in practice.”
THE SIAC’S DECISION ON STATELESSNESS IN SHAMIMA BEGUM’S CASE
The SIAC ruled that under Bangladeshi law, Shamima Begum was entitled to Bangladeshi citizenship through her parents. That alone was sufficient to dismiss her claim that she had been made stateless.[8] However, the SIAC also dismissed the comments of the Bangladeshi government that Shamima Begum was not a Bangladeshi citizen, ruling that this did not make her de facto stateless because any decision by the Bangladeshi government was reviewable by the Bangladeshi courts (although this was not the case in Pham).
While Shamima Begum does have a theoretical path to Bangladeshi citizenship, as the SIAC believed, if she is required to fight for citizenship through the Bangladeshi courts from a Syrian refugee camp, she will be de facto stateless for months or years. This violates article 8 of the 1961 Convention on the Reduction of Statelessness, which prohibits states from removing a person’s citizenship prior to their acquisition of an alternative.
THE DECISION TO REMOVE CITIZENSHIP VIOLATES THE RULE OF LAW
The UK constitution is based on the rule of law. The first principle of the rule of law is that no person “is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law.”[9] This requires that everyone has a fair hearing to determine whether they have breached the law. These closely related principles can be traced to article 39 of the Magna Carta:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
Both principles now have statutory force in article 6 and article 7 of the European Convention of Human Rights thanks to the Human Rights Act 1999.
Shamima Begum is accused of committing atrocious acts, including possible war crimes. However, she has not stood trial or been convicted of any crime yet. As a British citizen accused of serious crimes, she should stand trial in the UK and, if convicted, punished accordingly. Until she has been tried and convicted, she is presumed innocent and she should not be punished by an executive decision to remove her citizenship. The decision to do so is a violation of the most fundamental principles of the rule of law.
CONCLUSION
At present, the government has the power to deprive citizens of their citizenship if they break their obligations to the UK state. But no one knows what these obligations are. And if a person is abroad when they are deprived of their citizenship, they are effectively exiled. Not only does this invite arbitrary and unaccountable actions by ministers, wanting to appear “tough on terrorism”, but it is an unsafe way of dealing with the threat posed by homegrown terrorists, who have gone abroad. While abroad they remain free to coordinate attacks against the UK’s national interests.
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Legal citations
[1] Secretary of State for the Home Department v E and another [2007] UKHL 47 and Secretary of State for Home Department v MB (FC) [2007] UKHL 46 ruled respectively that 12- and 14-hour curfews were lawful
[2] Re: M (Children) [2019] EWCA Civ 1364 ruled that the public interest in investigating terrorism outweighs a person’s right to silence during child care proceedings
[3] [2012] UKSIAC 106-109
[4] Pham v SSHD [2018] EWCA Civ 2064 [51]
[5] Kerr, J. 2019. “Take heed what thou doest: for this man is Roman" - the arbitrary use of deprivation of citizenship as a public relations management. J.I.A.N.L. 33(4), 332-354
[6] [2013] UKSC 62
[7] [2018] EWCA Civ 2064 [51]
[8] Begum v SSHD SC/1563/2019 para. 123
[9] A.V. Dicey, Introduction to the Study of the Law of the Constitution, E.C.S., Wade (ed.), 10th edn (Macmillan, 1959), p. 187-196
Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.