Citizenship After the Islamic State: the United Kingdom, Statelessness, and Shamima Begum

With the Islamic State on the verge of being ousted from its last remaining enclave in Syria by the Syrian Democratic Forces (SDF), the question of what to do with IS fighters and supporters has never been more pressing. The case of Shamima Begum, the 19 year-old Briton who has spent the past four years with the Islamic State and now wishes to return home, has placed UK practices under a microscope on an unprecedented level. The solution that the UK came up with during the early years of the ‘War on Terror’ — that of revoking citizenship of nationals before they ever return home — is not surprising, given the UK’s increased reliance on this practice in recent years. While it is clear that IS fighters cannot expect to be able to just “come home”, countries engaging in citizenship deprivation are establishing a deeply troubling international norm. This continued practice raises profound questions of law and policy that many countries (perhaps all) will need to address in the future. Such alternatives to revocation of citizenship need to be conceived in a manner that does not further infringe upon the rights of citizens or function at odds with the mores of an open, democratic society.

Over the weekend, Donald Trump clarified the US’s position that Britain, France, Germany, and other European allies must take responsibility for repatriating and prosecuting their nationals. European fighters represent approximately 800 IS fighters currently being held by the US-backed SDF. But discussions with European countries over how to re-accept and re-integrate their own citizens is nothing new. They have been ongoing for at least the past two years, with markedly few results: so far, only a handful of detainees (mostly women and children) have been repatriated to their countries of origin. There is little to indicate that countries, European or otherwise, will demonstrate any willingness to take in and prosecute where warranted alleged Islamic State fighters. Instead, it seems at least reasonably likely that many will follow the problematic example of the UK in the case of perhaps the most high-profile detainee of the moment, Begum.

Begum originally garnered vast media attention in 2015 when, at the age of 15, she left her home in East London and travelled to Syria to join the Islamic State. Four years later, after marriage to a Dutch convert to Islam, the birth of three children (only one of whom has survived), and the collapse of the Islamic State, Begum is again the subject of great scrutiny and debate after a high-profile interview with BBC News, in which she expressed a desire to return to the UK, but seemingly little remorse for her decision to go to Syria or much of an understanding of how her actions have been perceived back home and throughout the West more generally.

On 19 February 2019, Begum’s case took yet another turn, when the Home Office announced its decision to revoke her citizenship. The decision has triggered intense debate over the legality of the deprivation order, with Begum calling it “unjust” and “a bit of a shock,” but for anyone who has been watching the UK over the past 17 years, this deprivation order comes as no surprise, but as a continuation of the Home Office’s strategy for dealing with Britons suspected of links to terrorism by revoking their citizenship and denying them the right to enter the country. The Home Office has acknowledged that 150 persons have had their citizenship revoked since 2010 due to links to terrorism or serious crimes. In Begum’s case, like with many others, the Home Office has defended its actions by arguing that the revocation of her British nationality is fully legal as she will not be left stateless, by virtue of her Bangladeshi heritage.

However, Begum does not have Bangladeshi citizenship. She was born in the UK and to date holds only British citizenship. She has never been to Bangladesh and even if she were eligible for Bangladeshi citizenship through her parents, she does not have it. As the Minister of Foreign Affairs of Bangladesh clearly outlined in a statement issued shortly after the deprivation order was made public, Begum is not a dual citizen. Any revocation of her British citizenship would, in fact, render her stateless.

Much has been made over the prohibitions on rendering a person stateless under international law, particularly through the Universal Declaration of Human Rights and the Convention on the Reduction of Statelessness. The Universal Declaration of Human Rights grants everyone the right to a nationality, but also allows for deprivation of nationality, as long as it is not arbitrary. The European Court of Human Rights has considered the question of arbitrary deprivation in regards to a British national in K2 v. the United Kingdom, focusing primarily on whether there were adequate procedural safeguards, ultimately setting a high bar through its finding that deprivation was not arbitrary even when the individual could only appeal the order from outside of the country and was not given full disclosure of the nature of the case against him. The Convention on the Reduction of Statelessness purports to reduce the number of stateless persons, but does allow states to reserve the right to deprive citizenship resulting in statelessness where the person concerned has acted “in a manner seriously prejudicial to the vital interests of the state.” The UK is one such state who has reserved this right. Thus, international law provides few, if any, safeguards that do not already exist under domestic law in Britain. But it is precisely under domestic law that the order depriving Begum of her citizenship is likely to fall short.

The particular circumstances surrounding Begum’s potential statelessness are neither unique nor unprecedented in British jurisprudence. The reality that revoking her citizenship renders her stateless is an issue already addressed by the Supreme Court, in Al Jedda v. SSHD in 2013. Al Jedda was an Iraqi refugee who had been granted British citizenship in 2000, which under Iraqi nationality law at the time led to an automatic revocation of his Iraqi citizenship. In 2004, after travelling to Iraq, British forces detained Al Jedda on suspicion of terrorism. When he was released without charge in 2007, the Home Office issued an order depriving him of his citizenship. At the time, the Home Secretary was prohibited from issuing such a deprivation if it would render such a person stateless. Theresa May, then the UK Home Secretary, argued that Al Jedda could reapply to have his Iraqi citizenship re-instated and thus was not stateless as a result of the deprivation order. The Court rejected this argument, noting that any possibility of him getting Iraqi citizenship was “unrealistic.” More significantly, the Court clipped the Home Secretary’s wings by declaring that the calculation of whether someone had another nationality at the date of the order was straightforward: either an individual had dual nationality and would not be rendered stateless at the time of the order, or they did not. Al Jedda, like Begum, had no other nationality at the time of the order and thus effective deprivation of his British citizenship would have resulted in statelessness.

The implications of statelessness are where the two cases diverge, however. At the time of Al Jedda’s deprivation order, domestic law expressly prohibited deprivation in instances where the individual would be rendered stateless. Unsatisfied with this limitation on the Home Secretary’s power, in 2014, the law was amended. Since then, the law has allowed for the Home Secretary to deprive a person of citizenship, even if it would render him or her stateless, if the Home Secretary finds that deprivation is conducive to the public good because the person has acted in a “manner which is seriously prejudicial to the vital interests of the United Kingdom” and there are reasonable grounds for believing that the person is able to become a national of another country or territory. This change to the law functionally enables the Home Secretary to revoke nationality with far greater ease than before; “reasonable grounds for believing” that an individual can obtain another nationality is a dramatically lower — and more vague — legal hurdle than having to establish that they held another nationality at the time of the issuance of a deprivation order.

Still, Begum’s deprivation order seems far from settled. With the Government of Bangladesh clearly and publically stating that Begum is not welcome in Bangladesh and does not have Bangladeshi citizenship, can the Home Secretary now argue that he has reasonable grounds to believe that Begum can obtain Bangladeshi citizenship? The substantial attention Begum’s case has received may make her possible rehabilitation and re-entry into British society decidedly difficult, but it may also make it impossible for the Home Secretary to argue the deprivation meets the legal requirements set out in the British Nationality Act.

A second impediment to the order is that while Begum’s decision to runaway from home as a minor, in order to join the promised Caliphate of the Islamic State, may be deserving of condemnation, there is no indication that she took any active (or passive, for that matter) role in IS such that would rise to the level of being “seriously prejudicial to the vital interests” of the UK. She was a bride and a mother, and while that does not absolve her or other women participating in terrorist organizations of possible criminal liability, it also does not rise to the level of seriously prejudicial conduct envisioned in the law. The Home Secretary has not implied that Begum has any serious level of criminality; rather, it seems that her undoing has been that she “turned [her] back on [her] country.” Depriving Begum of her sole citizenship for turning her back on her country is disproportionate, and no other justification has been tendered.

The Home Secretary has previously sought to reassure the public that the power to deprive citizenship is only to be used in “extreme circumstances.” Using the power against Begum would open floodgates to revoke citizenship and its concomitant rights from hundreds, if not thousands, of citizens, rather than hold them liable for their actions through judicial processes. Using the power of deprivation in such a manner is among the slipperiest of slopes; although affected persons can appeal the deprivation order, the appeal is through a Special Immigration Appeals Commission (SIAC), a system based around evidence closed to the accused on ‘national security concerns’. Reliance on such a system circumvents the normal requirement to prove culpability for criminal conduct in a court of law. The British judicial system is one of the oldest and most capable in the world. If such a system is unable to balance the needs of national security with fundamental fair trial rights, such as the right to know the case against you, there is little hope for less robust systems.

The UK practice of revoking citizenship suffers from more than just a lack of transparency and due process: it creates a two-tier system of nationality that is sharply drawn along racial and religious lines. Because citizenship can only be deprived when the individual is a dual national or there are reasonable grounds to believe he or she can obtain another nationality, those at risk are those with ties to other countries. A citizen born to white English parents cannot be deprived of their citizenship, since they do not have a reasonable ability to obtain another one, while a citizen like Begum, born and raised in the UK but with at least one foreign-born parent, can have hers deprived. It is worth highlighting that having a system where essentially only non-white Muslims are at risk for deprivation of their citizenship may produce more radicalization than it solves.

It remains to be seen whether Shamima Begum will be allowed to return home to the UK. Her family has announced they are pursuing all legal avenues to ensure her return and that of her newly born son, who is British by virtue of his birth. While Begum’s future remains up in the air, countries such as the UK and others must make tough, but proportionate decisions regarding how to balance national security and human rights. It is deeply troubling that Begum’s case is one of many where the Home Office has deprived citizenship (often waiting until the individual leaves the UK for travel), with little access to due process (in the sense that most would understand it in the context of a democratic state). Using it where there is scant evidence of criminality, let alone criminality that rises to the level of being seriously prejudicial to the interests of the state, mirrors the use of revocation or denial of citizenship by brutal and oppressive regimes, not those who uphold and respect the rule of law.

Law and policy expert with a particular interest in the intersection of national security and human rights.

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