The Real Citizens of Nowhere – statelessness and the law and the case of Shamima Begum – looking closely at the Begum case part 2

not 2nd March 2021

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‘…you’re a citizen of nowhere.’

Theresa May, then prime minister of the United Kingdom, Birmingham, 2016

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What is a stateless person – a person who is (literally) a citizen of nowhere?

The best starting point for answering this question – a question that is relevant in the topical case of Shamima Begum as well as important generally – is the declaration of human rights of the United Nations.

Article 15 of the declaration provides:

‘(1) Everyone has the right to a nationality.

‘(2) No one shall be arbitrarily deprived of his [or her] nationality nor denied the right to change his nationality.’

A stateless person would thereby a person without nationality, either because they have never had one or because they have been deprived of any nationality that they did have.

That person would be an alien in every country on the planet, without a government obliged to offer protection or help, and without anywhere where they can reside as of right.

Such a predicament would be fundamentally inhumane.

And so that is why the rights to a nationality and against being deprived of any nationality arbitrarily are in the United Nations declaration.

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You will notice that article 15(2) of the declaration is not an absolute prohibition on a person being deprived of nationality, but a bar on such deprivation being done ‘arbitrarily’.

This would be most relevant when a person has more than one nationality, when one or more of those nationalities is being removed.

But the basic right under article 15(1) is not subject to exceptions: the ‘right to a nationality’ is a right for ‘everyone’. 

And that, for what it is worth, is the fundamental position under international law.

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The next step is a 1954 convention of the United Nations – the Convention Relating to the Status of Stateless Persons – which took effect in 1960.

The key provision of the 1954 convention is article 1(1), which provides a legally significant definition of a ‘stateless person’ (and thereby ‘statelessness’):

‘For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.’

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This definition in article 1(1) of the 1954 convention repays careful consideration.

Indeed, as you will see later, this particular definition matters a lot.

Note what the definition does not say.

For example (omitting certain words and replacing ‘by’ with ‘of’) it does not say:

‘For the purpose of this Convention, the term “stateless person” means a person who is not […] a national [of] any State […].’

So what difference do the omitted words make?

The difference is the crucial phrase (perhaps known better in other contexts): ‘the operation of law.’

This phrase means that, regardless of the facts of a person’s predicament, their nationality is a matter of law.

Not a matter of fact, or of opinion – but a matter of law.

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So, for example, imagine person [Y].

If the law of country [X] provides that person [Y] is a national of that country, then the legal position is that person [x] has nationality and is not stateless.

It does not matter if person [Y] has never been to country [X].

It does not matter if person [Y] has no personal connection to country [X] and, for example, does not speak the language of country [X] and may even be persecuted or tortured if they were to go to country [X].

It also follows that the mere opinion of anybody involved does not matter.

Even if the government of country [X] opines that person [Y] is not a national, that opinion does not matter if, as a matter of law, person [Y] is a national of country [Y].

All that ultimately matters on the issue is what the law of country [X] provides on the issue, and nothing else.

And once it can be ascertained that person [Y] is, as a matter of law, a national of country [X] then that person is not stateless.

Person [Y]’s personal relationship with country [X] and the state opinion of the government of country [Y] are all irrelevant.

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This absolute priority for the legal position – above the practical facts of the situation – is, as you will see, a feature of this area of law.

Some lawyers will use the Latin phrases de jure and de facto as respective labels for the position as a matter of law and the situation as a matter of fact.

Adopting such terms, the law is that one’s nationality in respect of statelessness is de jure rather than de facto.

Even if the relevant country is far away and about which you know nothing.

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So, in practice: a government of a country (for example, Bangladesh) may well say a person is not a national (or not wanted as a national) – yet what makes that person stateless is not that mere statement by the government, but whether that person is stateless by operation of law of that country.

When the government of a country (for example, Bangladesh) says one thing about whether a person is a national, but the law of that country says another, then the law trumps the government.

The rejection by a government (for example, Bangladesh) may make a person (for example, Begum) stateless de facto but not de jure.

You will see the consequences of this (legalistic) approach in some of the relevant cases (for example, the case of Begum).

And this (legalistic) approach is hard-wired into the very wording of article 1(1) of the 1954 convention.

Let us look at it again (with emphasis added): 

‘For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.’

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Our next step is another United Nations convention – the Convention on the Reduction of Statelessness – of 1961 and which took effect in 1975.

The 1961 convention provides at article 8(1):

‘A Contracting State shall not deprive a person of its nationality if such deprivation would render him [or her] stateless.’

This right looks robust and unequivocal, with no deft legalistic exceptions or qualifications.

This right is subject to exceptions under the article 8(2) of the 1961 convention (which relate to those who obtain nationality by naturalisation) and under the article 8(3) of the 1961 convention (certain disloyal activities).

You did not think that countries would make it that easy for a person to rely on the right under article 8(1) of the 1961 convention, did you?

Of course not.

Article 8(2) and article 8(3) envisage some situations where a person themselves fulfils a condition that allows a country to deprive a person of their nationality.

The notion is that they will only have themselves to blame.

(As for the position under the law of the United Kingdom at the time the 1961 convention took effect, see section 20 of the British Nationality Act 1948 – the predecessor of the current 1981 Act)

However, in the case of Begum, article 8(2) and article 8(3) are not (supposedly) directly relevant, as the position of the government of the United Kingdom in respect of the Begum case is, of course, that depriving her of her United Kingdom citizenship does not render her stateless.

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The position of the government is that Begum is de jure a citizen of Bangladesh.

This is, in part, because the government takes statelessness to mean as it is defined in the 1954 convention – that is as statelessness de jure not de facto.

And so, in his letter of 19th February 2019, the home secretary Sajid Javid said (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.’

The emphasised text is crucial.

Without that text, the home secretary may have be barred by section 40(4) of the British Nationality Act 1981:

‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’

And so, if Begum – by operation of law – is indeed a citizen of Bangladesh then she can – in principle – be deprived of her United Kingdom citizenship without that deprivation being barred by section 40(4) of the 1981 Act (and thereby contrary to international law).

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But it is no longer just the view of the home secretary of the United Kingdom.

The question of whether the deprivation would be such as to render Begum stateless has also been considered by the Special Immigration Appeals Commission, in paragraphs 27 to 139 of its decision.

The commission heard expert evidence on both sides and decided that the law of Bangladesh would be that Begum would be a national of Bangladesh, regardless of the lack of any personal connection with that country.

This is paragraph 121 of the commission decision:

The commission has held that Begum was a citizen of Bangladesh by operation of the law of Bangladesh – regardless of what the government of Bangladesh has said and does say.

Begum has not, according to the commission decision, been rendered stateless.

The commission may be wrong: perhaps the expert evidence was wrong, or the wrong weight has been placed on the evidence, or the commission has applied the wrong legal tests, or the commission has applied legal tests incorrectly.

But, as it stands, the view of the home secretary that the deprivation decision has not made Begum stateless has also been endorsed by an independent body.

This issue of whether Begum would or would not be rendered stateless has, however, been decided only as one preliminary issue – there are several other issues – and there still has not been a final decision by the commission on Begum’s overall appeal of the deprivation.

The recent appeals up to and including the supreme court have been in respect of Begum’s ability to participate in this appeal and on a separate policy matter (which we will look at in another post).

The substantive appeal of the deprivation order is still incomplete (and at the moment it appears that it may be indefinitely stayed  – that is, in effect, adjourned).

The appeal before the commission is in limbo, as is – of course – Shamima Begum.

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This post is part of a series of posts on the Begum case.

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.

Previous posts have included:

• initial thoughts on the illiberal supreme court decision (here)
• the parallel of the supreme court decision with the 1941 case of Liversidge v Anderson (here)
• the legal power of the home secretary to deprive a person of United Kingdom citizenship (here)

Further posts will 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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