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One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.
The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.
By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:
“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”
Adding:
“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”
The Court of Appeal then noted:
“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”
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We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:
“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]
“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.
“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”
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This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.
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One of the grounds of appeal of Begum before the Court of Appeal was:
“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”
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In one paragraph, the Court of Appeal rejected this ground of appeal:
“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”
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In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.
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Begum then applied to the Supreme Court.
Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.
It could have been a Supreme Court case for the ages.
But, no.
In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):
“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.
“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.
“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”
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Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”
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But overall, this does not seem a satisfactory position.
There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.
The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.
Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.
But the general principle about removing British citizenship requires anxious scrutiny by our highest court.
In 2020-21 the Supreme Court decided various technical points about Begum’s case.
It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.
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This has been one of the shocking cases of the past 20 years, in that it exposes the way a legal falsehood can be perpetuated simply by providing the Sec of State the right to set aside the problem.
We all know it is illegal to make a person stateless. Yet the legal position here seems to be that, as long as the Home sec has considered it, he/she may indeed make a citizen stateless, with no recourse.
This is surely an illogical and wrong position to take. The case also finally destroys the canard that courts have become too political. This is a case where some political intervention was surely merited. Indeed, we hope for better from Strasbourg, but really, why can e not be honest with ourselves about this dilemma?
Thank You for this blog. It’s almost as though the UK Supreme Court has refused the appeal to it as an enticement to the ECHR to take on the case. Possibly in the hope that ‘development’ of the law under the Convention, will further excite calls for the UK to free itself from the interference of “foreign” courts. I am strongly reminded of one of Lord Sumption’s Reith lectures, which covered the subject of the ECHR and decisions of the ECtHR. I know that it wasn’t the UK Supreme Court shouting ‘Take Back Control’, but it’s a surprise that they don’t seem to want to.
Now that we have a new government, is it an option for the new Home Secretary Yvette Cooper to reverse the decision of her predecessor? We know from previous social media remarks that her colleague David Lammy was in favour of bringing Begum home to face trial and thought it wrong to deprive her of citizenship. Yvette Cooper has said only that it is a decision for the courts, which amounts to saying that politicians should not pre-empt the decision of the courts. If she has the power to restore citizenship, would that be a straightforward decision or would it be necessary for Begum to be encouraged to apply for citizenship and to be assessed as if she was a migrant coming to the UK?
This isn’t a nuanced point, but I find it very hard/impossible to see how making someone stateless can ever be justified. If there’s a case to answer, it was always possible for her to answer them without consigning her to this limbo.
As someone not informed of the precise circumstances of this case, some questions arise.
1/ What is the practical effect of depriving her of British citizenship? Can she remain in the UK as a foreigner indefinitely?
2/ If she is to be extradited, where too? If she is put on a plane to Bangladesh and refused entry, is she put back on a plane to Britain, and if so, where does she end up?
3/ Is it ultimately Britain’s problem to deal with the consequences of her being “likely” to be refused entry by Bangladesh? What residual responsibilities has Britain to her despite her no longer being a citizen?
4/ Are we not dealing with a form of extra-judicial punishment here. Someone is being condemned to indefinite limbo for misdeeds for which she should have been tried and punished if found guilty?
5/ Is there not a degree of racism and classism implicit here. Would (say) a Boris Johnson be treated similarly if regarded as a security treat and while entitled to citizenship of another country?
6/ The implicit message seems to be – you must behave yourself if you are from recent immigrant stock, as your right to British citizenship is not absolute. But no one would think to apply a similar sanction to a long established citizen even if they were entitled to citizenship in several other countries.
Begum is stuck in limbo, as a ‘stateless’ person in a detention camp in Syria.
None of those questions would arise had you known Shamima Begum is not actually in the UK. She is currently trapped in a Syrian refugee camp because the British Government will not allow her in the country and Bangladesh will not accept her either (assuming she wanted to go there when her family lives in the UK).
Have I understood correctly:
1. Sajid Javid’s decision was lawful because he only made Shamima Begum de facto stateless, not de jure stateless.
2. He knew that in practice he was making her de facto stateless.
3. The Supreme Court (and lower courts) have said this is ok because he properly considered this outcome, and because he did not make her de jure stateless.
4. The Supreme Court does not intend to get further involved, on the basis that the concept of de facto statelessness does not currently exist in international law. (Or as some might say, it’s not currently “enshrined” in international law.)
Is this correct?
For those born in the UK, it is currently having a dual-nationality that gives rise to the power for the UK one to be stripped, not the ability to apply for a second nationality. She had Bangladeshi citizenship at the time.
Dual nationals born in the UK would be well advised to renounce their other nationality if they don’t think that state would give them adequate protection if they need it. So if they lose their British nationality, they do not become de facto stateless.
Also, I support the Supreme Court decision. Ground 4 was about whether the Home Secretary acted lawfully under UK Law, not about human rights. It is specifically about whether the mandatory statutory procedures were followed. If the Court has decided the argument that they weren’t is too weak, it should not hear it.
Shamina Begum did not have Bangladeshi nationality.
You can’t renounce something you don’t have.
Millions of us are only UK nationals but have potential other nationalities.
The legal position is worrying.
Just read https://www.judiciary.uk/wp-content/uploads/2024/02/Begum-v-SSHD-CA-2023-000900-2024-EWCA-Civ-152.pdf to know, as a matter of fact under UK Law, whether she had Bangladeshi Citizenship. This question was not appealed.
You can read the Bangladeshi law as well http://bdlaws.minlaw.gov.bd/act-242/section-7472.html and see if you think it is in any way unclear.
Read https://www.legislation.gov.uk/ukpga/1981/61/section/40 for when a citizenship can be revoked by the Government. It cannot be revoked for someone who has UK nationality at the time of their birth, even if they have the right to apply for another nationality. So don’t worry!
You don’t have UK nationality by virtue of being born in the UK.
I’m not reassured by your saying that makes it all OK. In fact, it rather .makes it worse that we can officially discriminate against British citizens based on where their parents were from.
That the Supreme Court declined to consider Begum’s appeal is another sign that it no longer wishes to be seen to be in any way working against the Government.
Presumably the Government does not have any credible evidence that Begum is a danger to UK security. If they had, they would surely have brought her back to the UK and put her on trial. Instead they rely on her apparently willing association with ISIL, as certified by the then Foreign Secretary, to deprive her of British citizenship. It seems the idea that she now regrets her actions as a 15 year old is not considered to be a credible.
All this to satisfy the court of public opinion, as represented by the populist media. Begum is, in effect, a political prisoner in a Syrian refugee camp.
I know that judge’s ‘find’ the law, but I have a nagging thought that The Hale Court might have grasped this nettle. It’s difficult not to think that the Court ‘punted’ (as the yanks would say) so they wouldn’t have to face the inevitable tabloid opprobrium.
I am afraid that it is clear that this Labour administration has accepted the Overton window built by the Tories. Examples now abound – two child benefit cap, “smash” the migrant gangs, keep indeterminate sentencing, follow Thatcher on government finance, and so on. I see Begum as a UK responsibility, not one to be left rotting in a Kurdish camp.
I do find it strange that making someone de facto stateless, which then leads to their becoming de jure stateless is not considered to be making them de jure stateless simply because there is some time lag between the two, as cause here has inevitably lead to effect. Even if it was legally above-board, it reflects very badly on the minister; his reasons for doing so were rather bare-faced and populist. One does wonder what the reaction would be like if the shoe were on the other foot and we were prevented from deporting a Syrian terrorist in a similar manner. She’s our problem, we should take responsibility for her. I do hope Yvette Cooper is deferring to the courts in the hope that a judgment will make it harder for future home secretaries to make a similar decision, but suspect it’s as much to do with knowing this has been rumbling on long enough that you can’t just rip the plaster off and assume people won’t care by the next round of voting.
It is iniquitous that an,at the time, trafficked child has been subject to this state-sanctioned abrogation of the law. Trafficking facilitated by an official of one of our supposed allies. Shame on our court officials for their dereliction of their duties.
Quite.
Much bigger shame on Sajid Javid. We happen to have a legal system where abuse of the fundamental principles on which it is founded is sometimes possible. Thanks to the free public service the author of this blog generously provides, that much is plain.
Our legal system is meant to be fair. Sanctions are meant to be proportionate to the gravity of offences, remorse and mitigating circumstances should be considered when meting them out. People accused of crimes are entitled to a defence.
Using the power of high office to exploit a legal loophole in order to abandon a person indefinitely to a prison camp that is well documented as a lawless hell on earth flies in the face of the principles on which our legal system is founded. Sajid Javid seems to have done exactly that because it was politically expedient.
Shame isn’t really a big enough word for that sort of behaviour.
Seems to me we have here a convenient legal fiction – Ms Begum can stay where she is and the HS does not have to dream up some other excuse to keep her out. Dreaming up another excuse is risky, it could have unexpected holes in it.
Plainly she is a political hot potato – imagine the screaming from the usual quarters – especially for a new government. Then the Supreme Court may have chosen to keep its stock of political credibility dry ready for another day and another cause. She sits at that uncomfortable join between law and politics.
Then what are the benefits of letting her return to the UK? She seems to have pissed in our soup and on her return is likely to live on benefits for the rest of her days. Whether that soup was legitimately made is an inconvenient matter not for discussion.
Some may make her a cause celebre. Just possibly she may become an advert for ‘British Justice’, but that will hardly buy many political parsnips. So she gets the rough end of the stick. Let us hope the ECHR can get everyone off this uncomfortable hook – one way or the other.
This reminds me of the 1946 execution for treason of William Joyce, “Lord Haw-Haw,” by the UK. Joyce was not a subject of the UK, and hence could not commit treason. But he was going to be hanged no matter the law, and the court conveniently decided that his possession of a falsely-obtained UK passport would be sufficient.
“Round up the usual suspects.”