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


‘…you’re a citizen of nowhere.’

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


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.


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.


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.’


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.


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.


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.


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.’


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.


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).


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.


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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17 thoughts on “The Real Citizens of Nowhere – statelessness and the law and the case of Shamima Begum – looking closely at the Begum case part 2”

  1. On the policy side of the question, the Begum case seems to be one where the UK created a problem (though of course Begum is responsible for her actions, she was born and brought up here and therefore formed by the UK) and now wishes to dump that problem on another country. That does not seem to show a government/ country acting responsibly.

    It would also be a barrier to the UK learning what is going wrong that so many UK citizens are radicalised, whether by ISIS or white racist organisations or any other grouping.

    In the case of muslim terrorism it also contributes to an idea that muslim and/or non-white citizens are somehow not really British (remember Windrush).

    1. I am extremely happy of this decision. She is not really British. She made her position clear. i.e. she is anti-British, she stood against Britain, she was in a terrorist organisation where she gleefully watched her husband torture, set on fire and decapitate kaffir’s, in places where slavery was allowed for Muslim men (the right of all Muslim men by right of sharia – and all of this upheld by one of the highest Islamic authorities on the planet Al-Azhar University). She is not British, and this has nothing to do with her skin colour (shameful that you would put it in those terms) but to do with the her explicit opposition, hatred and despite for Britishness.

      So this judgement is just and proper. I hope that we see many many more illegal immigrants and terrorists treated with the same firmness. What she was part of is intolerable and I think on a level with someone like Jimmy Saville (who I would also like to have seen stripped of his British citizenship if he had not died, *regardless* of his skin colour – everything is not about skin colour as you seem so determined to make it Michael). She is not really British and that is a choice she made – let all aspiring terrorists learn the consequences of their actions.

      1. But she IS British just as Fred West, Dr Crippen and Jimmy Saville were. They personally carried out acts that were arguably worse than a child acting with a childish mind. Any British Citizen has the right to a fair trial in the UK – period.

  2. As a layman I’m struggling with this. If the decision to revoke Begum’s citizenship is subject to an appeal process, then surely until that process is completed the status quo remains and she is still a British national? As a British national no government (or Supreme Court) can bar her entry into the UK. Where am I going wrong here?

  3. though of course Begum is responsible for her actions

    While I harbour little sympathy for actual terrorists and anyone similarly minded, it’s hard to forget that the decisions Begum made which have left her in this invidious situation, she made when she was just a child of 15.

    I doubt that many of us can honestly claim that we didn’t do stupid things when we were daft kids

    1. Yes to a point. She showed absolutely no remorse and never used the daft kid excuse. there will always be daft kids but hopefully many fewer after her example.

  4. Well, every day is a school day. I had not realised that the SIAC reached a conclusion in Begum’s case on the preliminary issue of statelessness at the time when her UK citizenship taken away. Although not yet a final decision on the merits, it seems to leave her with little room to appeal. Does she hope to overturn that on appeal, or to satisfy a test of Wednesbury unreasonableness?

    The case of Minh Quang Pham is extraordinary. Born in Vietnam, migrated to Hong with his parents, and eventually naturalised in the UK. Fell in with Al Quaeda and deprived of his UK nationality in the UK, on the basis that he was “de jure” still a citizen of Vietnam, even though the Vietnamese government said he was not. He won a first appeal in the UK (ultimately lost at the Supreme Court) but in the meantime he was extradited to the US to be tried for his participation in a plot to bomb Heathrow Airport (why was he tried in the US and not the UK? Perhaps because some of the evidence obtained from US detainees would not be admissible here, due to the circumstances in which it was obtained…) Pled guilty and sentenced to 40 years in jail. Hard cases.

    An interesting comment in Pham from Lord Reed, para 120: “Given the fundamental importance of citizenship, it may be arguable that the power to deprive a British citizen of that status should be interpreted as being subject to an implied requirement that its exercise should be justified as being necessary to achieve the legitimate aim pursued.”

    Without that, what kind of appeal can ever hope to succeed, if all the Home Secretary needs to do is say, with honesty: “I am satisfied that deprivation of your nationality is conducive to the public good”, and “I am satisfied that you will not thereby become stateless”?

  5. I think this is actually quite generous to the UK courts. Ultimately the question is whether Bangladesh considers Ms. Begum a citizen. As you say, that’s not the same as whether the Bangladeshi government considers her a citizen, but it’s also not the same as whether a UK court thinks she could get a Bangladeshi passport if she applied for one.

    Obviously the UK court couldn’t avoid this question, and was therefore forced to answer it, but it’s quite something to decide Ms. Begum is a Bangladeshi citizen (not “could become”, but “is”) even when she doesn’t have a Bangladeshi passport, has never had a Bangladeshi passport, and there is no obvious route that guarantees her a Bangladeshi passport. In the absence of any document issued by a Bangladeshi authority saying she is a citizen of that country, I should think it’s quite something for a UK court to say that she definitely meets the Bangladeshi legal requirements for citizenship. The only institutions that have jurisdiction to decide that authoritatively are the Bangladeshi courts.

  6. What I find curious is that (in this instance as presumably in others), if I have understood correctly, lawyers from one country (in this case the UK) are determining how the “operation of law” applies in another country (in this case Bangladesh). That seems unusual, and to me surprising.

  7. It seems to me that the order for the deprivation of citizenship (which is capable of challenge & which a court has found can only be fully & fairly be argued with Ms Begum in the UK to give instructions & be present at the hearings) becomes key. If the HS is aware that the effect of making a deprivation order would result in Ms Begum being unable to receive a fair hearing then it would be Wednesbury unreasonable to make that order notwithstanding it wouldn’t make her stateless de jure. The fact that she was made stateless de facto goes to her inability to receive a fair trial. Although HS could reasonably argue that he didn’t anticipate (failed to take into account) the importance a court would place on Ms Begum’s presence in UK to the issue of her fair trial rights that failure is Wednesbury unreasonable?

    Could Ms Begum apply for an Order in Council (request AG then JR refusal and get order compelling AG?) to the affect that where HS wants deprivation Order he must ensure that a de facto statelessness isn’t likely from the fair trial perspective?

    *Might be worth trying to modify the international law here too – is this really the first time that a court has reached this impasse?

    This probably isn’t how things work though 😔

  8. As so many courts and tribunals are now holding many sessions by video conference, why should Begum not be reasonably able to participate in her appeal hearing remotely? – always supposing that she can get an adequate signal in the refugee camp where she’s living.

    1. Because (we are told) the Syrian organisation that runs the camp won’t let her have access to sufficient means of communication. (See par. 56 of the Court of Appeal’s judgment, for example.)

      1. The Roj detention centre where she is living now is controlled by Kurds. No idea why they wouldn’t let her have access to sufficient means of communication, as I’d have thought they would want to get rid of her.

  9. I see my comment has been overtaken! I read my version on email and I’m gratified to see that at least I wasn’t a complete idiot. For once. :)

  10. i am not sure but are there Bangladeshi laws
    that allow a terrorist aide to become a Citizen
    and if not, would it not be the case that Mrs Begum is defacto Stateless.
    I mean will the UK Gov go to court with Bangladesh over this
    and sue another Gov to take her as Citizen.
    But anyway Thank you Mr Green for this as always educating Blog

  11. Dual nationality is a two edged sword.

    EU nationality is far more important and valuable to me than my British by birth nationality and renunciation of the latter is a serious option for the reasons you cover.

    Two general points on your excellent post:

    The Convention on the Reduction of Statelessness 1961

    1. Article 7(5) could possibly afford Begum a defence

    2. Article 9 could be used to protect Jewish people with no connection to the Israeli State being discriminated against

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