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’.
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.
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.
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.
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.
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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