28th February 2021
There is something wrong – very wrong – about the legal situation of Shamima Begum.
That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.
The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.
So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.
Is the fault with the substantive law and general government policy? Or with the particular decisions made by home secretaries? Or with the lower courts and tribunals? Or with the higher appeal courts?
Of course, one easy answer is say ‘all of them’ – but even then: what is the allocation and distribution of wrongness in the system?
Previous posts on this blog on the case have put forward some initial impressions on the supreme court judgment of last week and, yesterday, compared the case in general terms with the 1941 decision of Liversidge v Anderson.
Today’s post is on the general subject of the power of the home secretary to deprive a person of British citizenship, subject to the (supposed) prohibition on rendering a person ‘stateless’.
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The power of a home secretary to deprive a person of British citizenship is set out in section 40 of the British Nationality Act 1981.
Note, however, that this is not about powers that actually date back to 1981 – as this provision and the act generally have been heavily amended by successive governments.
This legal power, like many other powers that can be used illiberally, is a legal work-in-progress – constantly being tuned (if not finely) by home office lawyers by legislative amendment so as to make it ever-more difficult for a home secretary’s decisions to be checked and balanced.
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The key power in the Begum case is at section 40(2):
‘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.’
This is it – this is the deprivation power.
On the face of section 40(2) alone, any person can be deprived of citizenship not by a decision of an independent court or tribunal but at the simple discretion of a cabinet minister.
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But.
There is then section 40(4), which provides:
‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’
(The ‘he’ here also means ‘she’ under section 6 of the Interpretation Act 1978.)
On the face of it, section 40(4) would thereby prevent the deprivation power being used so as to render a person stateless.
Yet note, the deft use of the words ‘he is satisfied’.
Read the provision again without those three words to see the difference those words make: ‘The Secretary of State may not make an order under subsection (2) if […] that the order would make a person stateless.’
The direct legal test is thereby not whether a person is made stateless, but (again) the ‘satisfaction’ of the home secretary.
As we come to look more closely at the Begum case in particular, you will see what rides on words and phrases like this.
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Turning now to the Begum case, we can now see the legal basis of the decision by the then home secretary Sajid Javid of 19th February 2019 (emphases added):
‘As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.
‘The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.’
As you can see, the notice of 19th February 2019 ticks the boxes for both (1) the basic deprivation power and (2) avoiding the statelessness exception.
This determination being made by the home secretary – and given the evidence on which the home secretary purports to rely – the only immediate avenue of appeal of Begum was to the special immigration appeals commission.
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The next post in this series of posts on the Begum case will set out the relevant law on ‘statelessness’.
Further posts will then show how the home office and the courts dealt (and did not deal) with important issues in this case.
The purpose of this Begum series of posts is to promote the public understanding of law.
The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.
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Should be an interesting series.
Thank you David, looking forward to the next episodes!
I was wondering about indirect consequences of this decision.
In the future, if a criminal or terrorist has dual citizenship UK and country X, country X now has a strong incentive to deprive that person of his/her country X citizenship (assuming this is legally possible in that country) as quickly as possible, before Britain does the same?
So we might see a citizenship deprivation competition, rather than an international cooperation to deal with such criminals?
This legislation appears to create 2 classes of British citizenship. One class encompasses several million people who are entitled to dual nationality (usually based on the place of birth of a parent or grandparent). Many of these people may not even be aware of their entitlement. They appear to be potentially at risk of being deprived of their British citizenship by executive order. The other class are those citizens without dual nationality (or the eligibility to claim it) who are not subject to such risk. I suspect there are a lot of people who may be suprised to discover that (perhaps unknown to them) they could become aliens at the stroke of a ministerial pen.
The possibility of finding oneself with potential dual nationality extends very wide. It could include any British National who has one Irish grandparent, perhaps about 1/3 of the UK population. I think it would even cover someone who has a NI, ‘Protestant’ ,100% British grandparent, since being born anywhere on the island fits the bill. Of course removal of British nationality could not stop such a person coming to the UK since there is no restrictions on movement of Irish citizens. The current law seems a bit of a mess, too much opinion involved.
Entitlement to citizenship is not the same as actual citizenship: as a Jew I am entitled to claim citizenship of Israel under Israel’s Law of Return (1950). But I am not an Israeli citizen: and the right is in any case not absolute, being revocable say in the case of dangerous criminals.
Shamima Begum is, according to the Home Secretary, a citizen of Bangladesh: she does not need to claim citizenship of that country.
The statement “you are a dual national” seems to be contradicted by statements made by the government of Bangladesh. If that statement is incorrect there can be no satisfaction.
Except that the Supreme Court rejected that argument in Pham v Secretary of State for the Home Department [2015] UKSC 19, holding that “stateless” in s.40(4) means that no national *law* regards you as a citizen, and it is insufficient that no national *government* regards you as a citizen – the Home Secretary is entitled to take the view that such national governments are wrongly interpreting their national laws, and thus is entitled to make people “de facto” but not “de jure” stateless. As you and I will probably agree, it is another rather illiberal decision, but for now it stands. It is currently under challenge in the European Court of Human Rights though – see https://hudoc.echr.coe.int/eng#{“itemid”:[“001-206794”]}.
Seems that the distinctions being being a citizen of X vs being entitled to take citizenship of X via registration process vs being able to apply for citizenship of X which may be refused, could be quite important here. It is unclear to me which applies in this case.
“conducive to the public good” – does this mean the SoS can deport any dual national who plays loud music of a sort that most people don’t like? Also, in what way is Shamima Begum “a risk to the national security of the United Kingdom”? Has she threatened that if allowed back into the UK she will reveal the Army’s main battle plan or the Trident launch codes? Of course not. Perhaps she might attempt to cause some people harm, but this is no different from the hundreds of people we release from prison each day, who at least have faced trial and lost.
Would it be open to an illiberal government to create a category of citizenship of (say) the Falkland Islands separate from citizenship of the UK, and then to enact that any citizen of the UK is also entitled to citizenship of the Falkland Islands?
As I understand it, that’s almost exactly what the act in question, the British Nationality Act of 1981, in fact did. It created at least three (by some reckonings, as many as eight) distinct classes of British citizenship.
This is going to be an interesting series, although of course we don’t yet have a court decision on the merits of Shamima Begum’s appeal against the ministerial order depriving her of British nationality, just the recent one upholding another decision preventing her from returning to the UK to advance that case. There is a paradox in the use of such extreme executive measures in a purported effort to protect our freedom and democracy.
‘of course’
This should be interesting series of posts. I am troubled by the ruling as it seems to create two different classes of British citizens: those who can have their citizenship revoked and those that can’t. The difference between them is an accident of birth and entirely rests on where their parents were born.
We might have a situation in which British citizens with legal ‘difficulties’, whose parents were not born in the UK, will lose their dual citizenship status to prevent the British Home Secretary from revoking their British citizenship and deporting them to the only country in which they have citizenship.
The answer for those who gain some other citizenship by accident of birth (e.g. a person born of an Irish parent) is to renounce that citizenship.
Can you renounce citizenship to which you are entitled but do not currently have? Can, for instance, a Jewish person renounce citizenship of Israel which they do not have but, under Israel’s Law of Return, they could claim?
If so, there would be thousands of people whose parents or grandparents were born in other countries and may have to renounce citizenship of several countries in case the Home Secretary revokes their British citizenship while they are abroad on holiday.
All people born in Northern Ireland or the children or grandchildren of people born in Northern Ireland can choose Irish citizenship.
Add these to others who could potentially claim another another nationality and there’s millions of us.
And what about citizens of odd anomalies like the Isle of Man or Guernsey?
There are two distinct situations: someone who is automatically a citizen by accident of birth (e.g. a person born of an Irish parent) and someone who is able under the law of a country to become a citizen of that country (e. g. a person born of an Irish grandparent).
The first situation seems straightforward though there are a few points:
– someone might not know they have dual nationality. A few years ago several Australian politicians had to resign when their dual status, unknown to them, was revealed;
– there may be some requirements to meet before citizenship can be renounced, e.g. a minimum age (18, 21 etc.)
– some countries, like Argentina, do not allow a citizen to renounce their citizenship.
In terms of the second situation it appears that the government can only act on this if the person is a naturalized British citizen. I don’t know if you can renounce citizenship that you don’t have, but in the example above of an Irish grandparent, when I researched it, if such a person actually obtained an Irish citizenship and then renounced it they couldn’t reapply for citizenship.
As to your final point, I don’t see many renouncing their dual citizenship (or potential citizenship). I have three citizenships and don’t feel compelled to renounce two of them over this judgment.
How do you renounce something that you do not positively hold?
The legislation does not rely on a person having extant dual citizenship, but only that:
“the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.”
But isn’t that from section 40(4A)(c), which applies only if the condition in 40(4A)(a) holds as well:
‘the citizenship status results from the person’s naturalisation,’
the three conditions being joined by the `and’ at the end of 40(4A)(b)?
In some cases, it may practically impossible to renounce a foreign citizenship. Some countries, such as Taiwan, can require a “citizen” to fulfil military service obligations before renouncing citizenship. The U.S. can require substantial tax payments. (Consider how long it took Boris Johnson to renounce his U.S. citizenship).
In any case, this assumes that the person is aware of the second citizenship. That may well not be the case (for example, in the case of a citizenship acquired from a grandparent). In principle, any country in the world can claim any person in the world as its citizen.
Oh, not just “whose parents were not born in the UK”. As a comment above indicates, Irish citizenship is open to those with a parent or grandparent born anywhere on the island of Ireland before Partition. Thus, it would be possible to remove the British citizenship of someone who had been born and lived all their life in the UK and whose grandparents had also been born in what was at the time an integral part of the UK.
If a substantial part of the population should find themselves living in steady apprehension that their conduct now or past could attract the attention of the Govt and, being conducive to the public good, result in their exile – would this be regarded as a legislative bug, or a feature?
Excellent point. I know people who are entitled to Irish passports (and have successfully applied for them) to facilitate post-Brexit travel. Their British citizenship is now at risk if the Home Secretary ‘is satisfied that deprivation is conducive to the public good.’
This very policy is discriminatory against “generally” migrants heritage. It creates two classes of British Citizens. One is absolute, other dependant upon “behaviour” in accodance with the Law.
Begum is Britain’s problem and she should be treated as per the law for her crimes. She was born in UK. She is more British than Bangladeshi. Only thing that’s Bangladeshi is her parents.
This very remark that she’s entitled to Bangladeshi Citizenship is vague.
Being entitled to a citizenship doesn’t mean one can attain it. Bangladesh has outrightly refused her claim to the citizenship and furthermore she cannot turn up at Bangladesh as she is likely to get hanged. So, in essence one has to question how the incumbent Home Secretary was “satisfied” in this regard.
This policy is problematic, it creates division. There are many people who are entitled to apply for different passports but since this very policy is only triggered where the crime is extraordinary, then real question is why would other Nations accept the peoblematic individual in question?
Self-centred policy by the self-centred parliamentarians.
For a comparative perspective, one might look to countries which disdain the idea that the government can involuntarily deprive a citizen of their citizenship—this is easily done using the indispensable comparative tool at https://www.constituteproject.org; see, for instance, the Czech Constitution, Art 12(2); Slovak Constitution, Art 5(2); Hungarian Constitution, Art G(3); Albanian Constitution, Art 19(2); Polish Constitution Art 34(2). In an American context, one can look at Afroyim v. Rusk 387 U.S. 253 (1967).
It seems to me that the constraint placed upon the Secretary of State by section 40(4) is in fact quite weak. To see why, consider a possible alternative wording:
‘The Secretary of State may not make an order under subsection (2) unless he is satisfied that the order would not make a person stateless.’
Both the extant wording, and the alternative, require the Secretary of State to do something: to attain satisfaction that something is the case.
But suppose the Secretary of State simply fails to address the question of alternative nationality? In such a case, he cannot be satisfied of anything regarding that question. He cannot be satisfied that the order would make the person stateless; nor can he be satisfied that the order would not make the person stateless. He simply would not know.
With the alternative wording, failure to be satisfied would mean that he could not make the order. But with the extant wording
‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’
failure to be satisfied would permit the order to be made, because section 40(4) would not be engaged.
Perhaps the court would detect an implicit obligation on the Secretary of State to address the question?
The UK was one of the original five signatories of the 1961 UN Convention on the Reduction of Statelessness.
Article 8 says, in what seems to me stronger terms than the UK domestic law, “A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.” https://www.unhcr.org/un-conventions-on-statelessness.html There are a few exceptions which do not appear relevant.
That may not help Shamima Begum much, as it is a provision of an international treaty and not (as far as I am aware) implemented in an enforceable way in UK domestic law. But you might hope the court would take it into account in construing the UK law, in trying to enable the UK to meet its international obligations.
Javid seems to acknowledge an implicit obligation. As he wrote:
“In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless”
It’s still an almost infinitesimally low standard of proof.
Every British citizen’s citizenship is at risk from the current law, as it is open to any other country in the world to decide to offer citizenship to anyone they like. If the UK wants to get rid of someone, they could get a friendly country to state that the person is entitled to citizenship there, allowing them to be stripped of their British citizenship. A mischievous nation could even offer a blanket offer to every British citizen, simultaneously threatening everyone.
The law is clearly completely wrong. There is no need to have any means to deprive a citizen of citizenship as we already have to cope with all kinds of people – unless you are thoroughly racist and think that those with multiple citizenships are inherently so dangerous that they are much worse than sole citizens.
Indeed, perhaps they could convince some poor island nation to grant us all citizenship. And then anyone against the public good (say, those that espouse race theory or extreme left ideals as recently forbidden in schools?) could be stripped of UK citizenship and deported there into some sort of, say, colony?
The “is satisfied” formulation seems to me to give the SofS a very wide margin of appreciation. On a scale from “beyond reasonable doubt” to “no reasonable person could reasonably” we seem here to be located pretty close to Wednesbury.
Fascinating series thanks DAG.
In trying to get to grips with this I find it helpful to try to understand motivation of the parties involved.
http://ukscblog.com/case-comment-secretary-of-state-for-the-home-department-v-pham-formerly-known-as-b2-2015-uksc-19/
‘His behaviour evoked the government’s wrath and he was deprived of his British citizenship’
Isn’t there another convention we’re signed up to which is pertinent, that to do with “residual citizenship” for people who become stateless.
So if she applies for Bangladeshi citizenship, and is refused she becomes stateless.
As I understand it, the residual citizenship is supposed to “re-attach” after being stateless for something like 6 months, i.e. she becomes a British Citizen again, and this time as someone who is not a dual national, nor entitled to dual nationality.
However making that argument may prove difficult from outwith the country…
The part that I find intriguing is that what matters is whether the person is by law of Country X a national of Country X regardless of what the government of that country thinks.
Basically it could lead to the situation where Government X says the person is not a national, and the UK government saying they are. This looks on the face to be a dispute on the interpretation of the law of country X. Who is the arbiter of such a dispute? That must be the court system of country X. But how to enforce that?
Or can the government of the UK tell another government on how it should interpret it’s own laws?