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ISIS BRIDES: THE SCANDAL OF THE UK’S NATIONALITY LAWS AND JUSTICE DENIAL IN SHAMIMA BEGUM CASE
Sara Arafa

NOIVAS DO EI: O ESCÂNDALO DAS LEIS BRITÂNICAS DE NACIONALIDADE E NEGAÇÃO DE JUSTIÇA NO CASO DE SHAMIMA BEGUM

Abstract: The right to a nationality is a fundamental human right. Being ‘stateless’ not only breaches that right but renders a person vulnerable to other human right abuses. Without the protection of a state, a person almost does not exist. It is for that reason that international law forbids states from rendering individuals stateless. However, the rise of terrorism has made states more willing to flout this right, revoking nationality of citizens for reasons of national security and public good. This has escalated since the rise of ISIS. Moreover, it applies not just to the fighter but to the phenomenon of ‘ISIS brides’, young women and girls who go off to join the Islamic State in pursuit of self-proclaimed idealised concept of Islam. The British girl, Shamima Begum, is one such example. After running away at age 15, she asked to come back four years later but was refused and her nationality, revoked. This is despite the fact that she had no other legitimate citizenship and so is now stateless, stranded in a refugee camp, punished for an ‘offence’ committed as a child, and with no government to help her. Her child, a British citizen, has died. It is not just the humanity of the situation that demands attention but also the legality: how can UK immigration laws be legitimately allowed to deprive persons of their fundamental human right to nationality?

Keywords: Right to Nationality, Human Rights, ISIS Brides, Returnees, British Nationality.

Summary: Introduction; Nationality: a Right under International Law; The Rise of ISIS; ISIS Brides; Citizenship: a Right or a Privilege – the UK’s Approach; Shamima Begum; Lack of Safeguards; Conclusion; References.

Resumo: O direito a uma nacionalidade é um direito humano fundamental. Ser “apátrida” não apenas viola esse direito, mas torna uma pessoa vulnerável a outros abusos de direitos humanos. Sem a proteção de um Estado, uma pessoa praticamente não existe. É por essa razão que o direito internacional proíbe os Estados de tornarem os indivíduos apátridas. No entanto, a ascensão do terrorismo tornou os estados mais abertos a desrespeitarem esse direito, revogando a nacionalidade de cidadãos por razões de segurança nacional e interesse público. Isso tem aumentado desde a ascensão do Estado Islâmico. Ademais, isso se aplica não apenas ao agente, mas também ao fenômeno das “noivas do EI”, meninas e jovens mulheres que se juntam ao Estado Islâmico em busca do autoproclamado conceito idealizado do Islã. A garota britânica Shamima Begum é um desses exemplos. Depois de fugir aos 15 anos, ela pediu para voltar quatro anos depois, mas foi recusada e a sua nacionalidade revogada. Isso ocorreu apesar do fato de ela não ter outra cidadania legítima e, por isso, agora ser apátrida e estar em um campo de refugiados, punida por um “crime” cometido quando criança e sem nenhum governo para ajudá-la. Seu filho, um cidadão britânico, faleceu. Não é apenas a humanidade da situação que demanda atenção, mas também a legalidade: como se pode legitimamente permitir que as leis britânicas de imigração privem as pessoas de seu direito humano fundamental à nacionalidade?

Palavras-chave: Direito à Nacionalidade; Direitos Humanos; Noivas do EI; Repatriados; Nacionalidade britânica.

Introduction

In February 2019, UK Home Secretary Javid revoked the citizenship of Shamima Begum, a 19 year-old British citizen who had run off, at age 15, to become an ‘ISIS bride’. Revoking her citizenship supposedly did not leave her stateless because it was reported that she was also a Bangladeshi citizen. [1] Later, it was revealed that she is not a citizen of Bangladesh, although she has the right to apply for its nationality. As such, a British girl – no more than a girl – has been ‘punished’ for a stupid act she committed as a child and now finds herself stateless, in a conflict zone, her baby (who was a British citizen) has died and she has no government to turn to.

The injustice is magnified when one learns that over 400 similar young women had been allowed to return to Britain. [2] Shamima’s ‘crime’, therefore, was to have attracted media attention and to not appear repentant. As such, we have ended up with a trial by media, of an ‘offence’ of a minor, with a result that contradicts the basic tenets of International law. [3] This is not an isolated domestic incident either. Despite the phenomenon of returning ISIS foreign fighters and the issues of statelessness having received publicity, and scholarly review, very little attention has been paid to the more innocent ‘bride’ (at least according to the famous principle on the presumption of innocence) who finds herself in the same situation without having fired a bullet. 

Nationality: A Right under International Law

“Everyone has the right to nationality. No one shall be arbitrarily deprived of his nationality”. [4] The Universal Declaration of Human Rights confirms the right of every individual, in any part of the world, to be legally associated to a state. Nationality does not only grant a person their identity, culture and social affiliation, it also provides him/her with state protection and all civil, economic and political rights and privileges. Without nationality, a person is vulnerable, exposed, under the care of no country. De facto, nationality is an inalienable right of every person: nationality is simply “the right to have a right”. [5]

International law has tackled this problem face on. There are two autonomous, yet complimentary, conventions: the 1961 Convention on the Reduction of Statelessness, which addresses nationality and how to tackle the problem of statelessness, and the 1954 Convention relating to the Status of Stateless Persons which offers an alternative legal status to those stateless persons in addition to some rights, in an attempt to fill the protection gap created by the statelessness. [6] In addition, many other conventions confirm the right of each child to a nationality, (see Article 24, the International Covenant on Civil and Political Rights, signed in 1966 and effective as of 1976 and the Convention on the Rights of the Child 1989 in  Articles 7 and 8) and outlaw and discrimination against women as regards rights to nationality (see The Convention on the Elimination of Discrimination Against Women (CEDAW) Article 9, and The Convention on the Nationality of Married Women 1957, Article 1).

Despite these tools of international law that regulate the acquisition or denial of a citizenship, millions of people around the world still suffer the fact that they have no nationality and are, hence, ‘stateless’. In practice, therefore, it is largely for each country to lay down its own rules.

A country’s constitution is basically the tool that sets the criteria to determine who shall acquire its citizenship. The state’s right to confer its own citizenship, however, is restricted and tied to the right of other states to grant their nationality; in order to avoid impinging provisions on nationality between states. [7] States’ nationality laws vary from one to another. According to the nationality laws in different countries, there are various methods of acquiring citizenship. One rule states that if someone is born in a state then he acquires its nationality by birth.

Another rule is that nationality can be inherited from one or both parents.

According to international law, citizenship is essential in various international occasions, like the case of expelling a person from the territory of a certain state, or the state being obliged to receive that person is their state of nationality. Moreover, in extradition agreements, there are regulations that oblige states to hand their nationals to other states. The fact that national legislations are different, however, in addition to the weak enforcement of international law and the lack of binding practises, means that the citizenship issue is now facing many controversial problems. This includes the status of persons with dual and multiple nationalities and stateless persons. [8]

Statelessness is the most pressing of these problems: the international community needs to prioritize the concerns of stateless people, as statelessness directly facilitates targeting and subjecting people to massive human rights abuses. Observing groups like Shia Muslims in some Middle East countries, Rohingya in Myanmar and the Kuwaiti Bedoon, all people who are deprived of their right to acquire a nationality, [9] this should remind the international community that this, by itself, is a human rights violation. As a consequence of not having a nationality, a person is automatically prevented from having access to his basic political, economic and sometimes social life. Statelessness is simply a door to evil, no matter what the justification behind it. [10]

The Rise of ISIS

The recent problems of statelessness regarding actual and suspected terrorists has to be put in the context of the rise of ISIS. The Islamic State (ISIS or Daesh) has grown from the roots of Al-Qaeda in Iraq, founded by Abu Musab Al Zarqawi in 2004. [11] It faded for a while during the embarkation of the US troops to Iraq in 2007, however, regathered again and took advantage of the instability in both Iraq and Syria in 2011. [12] In 2013, the group changed its name to the Islamic State of Iraq and Syria (ISIS). Later in June 2014, the ISIS Leader, Al Baghdadi, announced the extension of the Islamic State from Aleppo in Syria to Diyaala in Iraq. In 2015, ISIS expanded its network to more than eight other countries initiating a bloody wave of attacks in various countries. [13] It carried out attacks beyond its borders starting with Paris, France following in Belgium, US, Germany, Saudi Arabia, Turkey, Yemen and Egypt, killing at least 624 innocent civilian and causing more than 500 injuries in total. [14] In 2017, Iraqi Prime Minster Haider al Abadi announced victory over ISIS in the Mosul battle and Baghdad declared the demise of ISIS. Afterwards, ISIS suffered a chain of grievous defeats in Syria as well by the Syrian Army backed up by the Russians and the Iranian Armies, and the Syrian Army took back Yarmouk, south of Damascus, and on the frontier with the Israeli-occupied Golan Heights. [15]

The problem of the rise of ISIS and in particular the foreign fighter phenomenon is that, in 2016, the number of people who travelled to Syria and Iraq to join ISIS and other extremist violent groups reached an estimation of between 27,000 and 31,000 persons. [16] Those numbers also include women and children who do not participate directly in the conflict, but represent the families of the foreign fighters and the population needed to form the Islamic Caliphate desired by ISIS Leader.

Furthermore, the foreign fighters joining ISIS comes from at least 86 states. More than 6000 people are from Europe, with the majority coming from Belgium, Germany, UK and France. [17] The UK reported that, up till 2017, at least 760 jihadists had travelled to fight with ISIS in Iraq and Syria. More globally, the countries with the highest number of exported fighters are Tunisia, Saudi Arabia and Russia. [18] The issue is, therefore, a global one.

ISIS Brides

It is not just the fighters who attract attention. Indeed, their situation is, in many ways, easier. Rather, in the last few years, the western media has been fascinated by the phenomena of so-called ‘ISIS brides’ or ‘Jihadi brides’. The media picture is of a young girl, seduced to run off to join the Islamic Caliphate, and marry her Islamic freedom fighter or, more metaphorically, to marry her faith.

Although numbers are difficult to assess, one study totals there being 150 British girls and young women in total who could legitimately be titled ‘ISIS Brides’. [19] A Washington report states that in 2015, 550 young Western women left their homes to go to Iraq and Syria and join ISIS. [20]   An ICCT 2016, report concerning 11 EU member states put the number at over 1,000. [21] The question is: what could make young ‘privileged’ European women give up their lives, flee to conflict zones in Iraq or Syria, and marry ISIS fighters and bear their children?

The prevalent stories about ‘ISIS Brides’ joining the Islamic State in Iraq or Syria are mostly based on stories of innocent young girls in search of love and adventure. However, this understanding of their motivations is overly simplistic. [22] Some of these women had already decided to join their foreign fighter husbands and the marriage simply facilitates these women’s presence in ISIS territories. But there also is a significant percentage of women who decide to travel without having a partner or a husband. Again, the media often focus simply on the fact that they are promised to get married to a male fighter after their arrival. This underestimates the commitment to the cause and portrays the women as biddable, ‘little women’, playing a subservient role behind the scenes. Indeed, as Jacobs argues, it is sexist and “inherently dismissive” as it “misconstrues and over-simplifies women’s attraction to the group as stemming not from an idea or opportunity, but from an attachment to a person or relationship”. [23] One of the most compelling reasons behind men and women travelling to join ISIS is that they are ensnared by the idea of having a pure political and religious Islamic society, the ideal world as they believe. In this way, women are just committed to the cause, and indeed they are violent in defending that cause. That said, it must be remembered that these are young people, looking to escape parental constraints and in search of adventure.

The Institute for Strategic Dialogue conducted a report named “Becoming Mulan” which found that the western women who travel to join ISIS, actually, have almost the same reasons for travelling as men. The report accentuates the prominent reasons mentioned by women who had join ISIS as: a) They believe that Islam is threatened; b) They wanted to participate in building the great Islamic Caliphate; and c) They are convinced they have a duty to join the Islamic State and establish a population. [24] Furthermore, violence is not an anathema to women. Islamic history has a list of strong women who have featured as warriors, like Nusayba bint Kaab Al-Ansariya who participated in the battle of Uhud in 625 where she shielded the prophet during the battle. Another example is Khawla bint Al Azwaar and her active role, in addition to her fighting skills against the Byzantines during the battle of Yarmuk in 636. [25] As such, Moaveni [26] highlights that the press ‘infantilise’ the women. On the one hand, this is hardly a criticism, seeing as many are indeed children. But there is, she claims, a refusal to accept that these women have legitimate political grievances, based on the “historical and near-universal aversion across so many societies to viewing young women as capable of dreadful violence, and the incentives for powerful governments and militaries to downplay or amplify the nature of female militancy and its implications”.

The ISIS brides’ phenomenon is, therefore, staggering, especially from a western perspective; why would a girl living in Europe and enjoying equality and rights leave for ISIS territory and risk the possibility of oppression and sexual servitude? The answer to these thoughts is that, on the one hand, ISIS recruiters are experts in manipulating those target groups emotions and ambitions, selling euphoria of Muslim love stories, based on how unique the experience is, in addition to the value of strengthening Islam through supporting its Caliphate. [27] On the other hand, teenagers are, by nature, committed, zealous and idealistic: it is not right to trivialise their convictions simply because they are young.

What is truly sad about this phenomenon is how illusion is one of its main components; reality does not meet expectations. Those who joined the caliphate, made their decision based on the stories they were told, the propaganda that worked on distorting the western perspective on ISIS and in certain cases the passion and imprudent independency of youth. This is not to downplay or trivialise the young women’s religious and political convictions; it simply recognises that idealism is the nature of youth and often doomed to disappointment.    

Citizenship: A right or a privilege – the UK’s Approach

It is in light of this, the nature of Shamima Begum’s case should be viewed. The power of states to revoke nationality of a citizen who might threaten its own security is highly controversial. International law has granted states the right to draw its own lines with regards to its citizenship; however, international law also provides a ground for inclusion or exclusion based on various international tools. [28] With the rise of the recent terrorism groups, the broad international legal environment has resulted in different nationality revocation policies. [29] Many countries have created articles or acts that includes specific procedures that illuminate the power of the states to rescind its nationality. Other states have outlined certain articles or acts that limit the state’s authority in the cases of citizenship revocation. Looking at the EU, there are clear examples of extra-constitutional policies that entitle revocation. Twenty-four European States have included specific laws that entitle them to revoke their citizenship if a person has committed certain activities that might affect the state directly or indirectly. [30] States believe that by revoking their citizenship they strengthen their counterterrorism responses, and that this will lead to less transnational terrorism attacks. [31] This was concluded from the number of western foreign fighters (including UK citizens) joining ISIS. It also, more worryingly, provides a sop to the media, a way to appease the public outcry, after terrorist atrocities. Although public opinion matters, and politicians understandably want re-election, the fear is that they need to be seen to be doing something concrete, and revoking nationality is one way they can do this.

The most worrying aspect of this is that recent steps taken by the UK with regards to the foreign fighters’ cases show that the authority of the UK to revoke citizenship has widened dramatically. Above, it is understandable that with the supposed immigration crises, ISIS attacks and the number of British citizens joining ISIS, have created a significant pressure and a need to a powerful policy response. [32] However, the steps taken by the UK take security concerns too far and end up as undemocratic and anti-human rights measures. This applies in particular to non-native citizens. By these actions, the UK government is taking steps back from the protection that should be provided to a citizen of a liberal democratic country. Not to ignore the fact that these actions are with no doubts increasing the stateless population.

Whether historically or in contemporary law, the British legal instruments with regard to citizenship revocation are considered to be some of the most vigorous and punitive. [33] These legal instruments includes the British Nationality and Status Act of 1914, British Nationality Act 1981, Immigration and Asylum Act 1999, Nationality, Immigration and Asylum Act 2002, Immigration, Asylum and Nationality Act 2006, and the Counter-Terrorism and Security Act 2015. Most importantly, however, based on the rise of the phenomena of UK fighters joining ISIS and based on fear and media hype, Parliament has amended its nationality laws with the recent Immigration Act 2014, [34] and Counter-Terrorism and Security in Act 2015. [35]

The initial starting point does not seem controversial. The 1981 British Nationality Act in section 40(2) stipulated that: “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”. [36] However, this is on condition that it does not make that person stateless, as seen in s.40 (4).

In 2002, the British Nationality Act was amended with the Nationality, Immigration and Asylum Act expanding its revocation clause by the following article “The secretary of State may by order deprive a person of a citizenship status if the secretary of State id satisfied that the person has done anything seriously prejudicial to the vital interest of a) the United Kingdom, or b) a British overseas territory.” [37] The UK is state party to most of the international treaties on statelessness, including both 1954 and 1961 conventions, the UK is also party to the 1997 European Convention on Statelessness. However, the UK is not state party in two of the most vital regional instrument, like the European Convention on Nationality and the Convention on the Avoidance of Statelessness in Relation to State Succession. [38] Despite the fact that UK has ratified the 1954 and 1961 conventions, but by looking up the definition of stateless person in the Immigration Rules, it becomes clear that the exclusion criteria are further away from the ones in the 1954 Convention. [39]

In 2005, the UK changed its citizenship laws again, as result of London terrorist attacks and finding out about the involvement of dual nationality citizens who supported these attacks. [40] This change appeared plainly in the Immigration, Asylum and Nationality Act as it expanded the power of the Home Secretary in citizenship revocation. The vague and broad language of the text substituted section 40(2) of the British Nationality Act 1981 (deprivation of citizenship: prejudicing UK interests) with “(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” because of actions that are seriously prejudicial. [41] This has widened the scope of actions that allows the revocation of citizenship.

A serious, subsequent problem is that there has since been a most explicit but rather underreported expansion of power. This is found in Section 66 of the 2014 Immigration Act.  This does not only increase the power of the Home Secretary in revoking the nationality, but also it gives the ability to the Home Secretary to revoke the citizenship from a person with only one nationality. [42] The issue here is that it is not complicated anymore for the UK government to strip its citizenship from a national that “conducted him or herself a manner which is seriously prejudicial to the vital interest of the United Kingdom, any of the Islands, or any British overseas territory”, [43]  which is ‘conducive to the public good’.

However, in theory, this should not be possible for single-nationality citizens. Yet the Act states that it only applies if the Secretary of State “has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory” [44] . This must surely be illegal: it says able ‘to become’ a national – not ‘is’ a national. Therefore, by definition, the person who is not a national of another country, but is able to be, will be stateless until they ‘become’ a national of the other country. Although this only applies to naturalised citizens, based on international law, as shown above, this is still illegal.

Furthermore, in the view of the Government, this does not infringe the two International Conventions that seek to avoid statelessness. In summary, this is because although the UK ratified the 1961 Convention, according to its terms, it was entitled to retain power under the already established domestic law to deprive a person of their nationality if the person had “conducted himself in a manner seriously prejudicial to the vital interests of the state” [45] as per the British Nationality Act 1948. Moreover, although the 1997 Convention categorically prohibits deprivation of nationality that results in statelessness (barring misrepresentation or fraud), this convention has never been ratified by the UK. This argument is rather tenuous, to say the least. Under customary international law, it was not allowable in 1948 to render someone stateless; this is now confirmed in treaty. Therefore, it seems a misuse of the old law to suggest that nationals can be made stateless because it predates the treaty. This interpretation cannot be accepted, as it contradicts the UK treaty obligations; the UK cannot commit to a treaty that aims to reduce statelessness and at the same time use a gap in this treaty to expand its power in revoking citizenship and cause more cases of statelessness.

It should be noted that the Immigration Act of 2014 has not only made life harder for immigrants’ life, but has created a biased broad legal provision (almost politicalized) that serves the direction of the government towards expanding its power to citizenship revocation. This act has limited the cases of appeal of the Home Secretary’s decision, the number decisions challenged falling from 17 to 4. [46] Also, ‘harmful’ persons facing deportation, cannot wait any more for their appeals; they can be removed or their nationality revoked before their appeals. Consequently, judicial review will not act as efficient alternative as the claimants are no longer in the country.

In terms of practice, citizenship revocation is believed to be an effective tool to combat suspected terrorists; to give a strong direct message to the individuals involved in terrorist acts that they won’t enjoy the state protection anymore. Prime Minister, May, has mentioned that deprivation from citizenship is an effective tool to combat terrorism. [47] May has ignored the fact that her statement is only true if section 66 is abused and only for naturalised citizens. However, to use depriving a person from his nationality as punishment tool is a distortion to the status of the individual within an organized democratic society. [48] Moreover, it creates more vulnerable cases for those who only had the UK citizenship; it directly leads them to statelessness. Though the government knows that power of the Home secretary to revoke someone’s nationality is limited and will be monitored, the language of the act points out the fact that protection against statelessness is compromised when it comes to terrorism. [49] As such, both the Immigration Act and the Counter-Terrorism Security Act are considered to be very controversial with the international law concepts on statelessness. Tufyal Choudhury believes that these Acts undermine UK democracy. [50] The UK by passing this Act has decided to abandon its international obligation towards reducing statelessness. Furthermore, it has encouraged countries with less democratic regimes to follow its steps and revoke citizenships on less reasonable basis, like Saudi Arabia for example when it decided to revoke the nationality of Bin Laden’s Son. [51] Saudi Arabia decide its deprivation order on the base of fighting terrorism and terrorists, which is even broader than the UK provisions.

Shamima Begum

The recent situation in the UK with Shamima Begum has highlighted serious concerns and gaps that directly affect and increase the cases of statelessness. It only took the Home Secretary to consider Begum as not “Conducive to the Public Good” to revoke her nationality, ignoring that Shamima is national by birth and not a naturalised citizen.

Shamima was born in the UK to a Bangladeshi origin parents. She is a British national by birth. She was just 15 years old when she and another two other schoolgirls from Bethnal Green Academy decided to travel to Syria in 2015 to join ISIS. [52] The police at that time had suggested to the families of the girls that they would not face criminal charges if they returned to UK. [53] Begum married an ISIS fighter after her arrival in Syria; her husband was a Dutch national, and she gave birth to three children. Two have died and the third was born in February 2019 in a Syrian Refugee Camp.  Shamima was found several years later in squalid conditions in a refugee camp. She asked to come home to her family after she gave birth to her third child. Due to the poor conditions in the Syrian Camp and the abject slowness the British government in deciding the fate of this baby, the baby has now died. During her interviews with the press, Begum claimed that she did not commit anything dangerous and that she was only a housewife during those four years. [54] However, the UK home secretary, Sajid Javid, refused her request before even knowing that her narrative was contradicted by lots of ISIS witness and he revoked Begum’s British citizenship. He claimed that she had the right to Bangladeshi citizenship so this did not leave her stateless.

There are several extremely important human rights concerns here. Begum took the decision to join ISIS when she was just 15 years old, which means that she was a minor: the UK government decided to ignore this fact. Indeed, there are questions as to how the British passport authorities allowed a 15 year-old child to travel anyway. It is reported that she flew on a borrowed passport which highlights important failings in security of the very government who, supposedly, is so concerned about security. [55] But the government is following the revocation policy to cover its partial security failure.

Equally, when she requested to come back to the UK, she was not alone but had her child with her who was without doubt a UK citizen, since he was born to a UK citizen (Begum), before her nationality was revoked. As a result of the state’s inaction, Shamima’s baby has passed away due to the poor living conditions in the Syrian camp. This incident should grab the attention of the world to highlight the fragility of the protection offered by the government to the children affiliated to ISIS returnees, and how the broad language of the recent Acts might affect not only the citizen in concern, but also his/her children. Shamima Begum’s parents would reportedly have welcomed the child to be flown back on its own but this was refused: if a country does not protect its innocent infants, it is difficult to have faith in its ability or willingness to safeguard the human rights of its adults, especially those suspected of terrorism.  

Significantly, as regards Shamima, the UK decided effectively to hand the issue to Bangladesh by claiming that Shamima was eligible to have the Bangladeshi citizenship. This was rebutted by the Bangladeshi Minister of Foreign Affairs when he stated clearly that “Begum is not a Bangladeshi citizen. She is British by birth and has never applied for dual nationality”. [56]

Not only are there critical questions about human rights in Shamima’s case but there are serious problems about statutory interpretation and application. In Pham v The Secretary of State for the Home Department, the Appeal Court decide to revoke the nationality on the basis that the deprivation may be conducive to the public good, [57] as under section 40(2) of the BNA 1981. However, the phrase ‘conducive to the public good’ is vague and arbitrary. In terms of exclusions and deportations, the Homes Secretary must use this power “consistently, proportionately and reasonably” while “having regard to the importance of upholding UK values” [58] . However, the very broad discretion in interpretation is a serious cause of concern.

Furthermore, the questions of statelessness is key. Minh Pham had been living in the UK since he was at the age of six, having fled Vietnam with his family when he was a tiny baby. He was deprived of his British citizenship in 2015 even though he was not recognized by the Vietnamese government as a national of Vietnam.

The problem is, however, that s.66 only applies to naturalised citizens. So the question is: how was it used to deprive Shamima of her nationality, given she is a British-born national? A person is either a national of another state or they are not. Being theoretically ‘able’ to be a national of another state is not the same Indeed, Bangladesh has stated categorically that Shamima is not a national and any application would not be accepted. Indeed, they have gone further and said that if she entered the country she would likely be tried, found guilty of terrorism and sentenced to the death penalty. [59] As such, it is clear that Shamima was not a citizen of Bangladesh when her nationality was revoked, as required in Al Jedda v Secretary of State for the Home Department [60] and thus was made stateless. Furthermore, the caveat in the 2014 Act allowing for ‘reasonable belief’ that the person is entitled to become a national does not apply as this is only for naturalised citizens. In which case, how was Shamima deprived of her citizenship? Although the Home Secretary has not answered directly, the answer may lie in the recent case of E3 and N3 (Exclusion: Preliminary Issue), [61] where the Special Immigration Appeals Commission (SIAC) recently considered the relevant provisions of Bangladeshi nationality law and held that two British ISIS operatives who were born to Bangladeshi parents automatically held Bangladeshi nationality until the age of 21, after which age their citizenship lapsed.  As Shamima’s parents have Bangladeshi nationality, this suggests that, according to the Home Office’s interpretation, Shamima is also an automatic national of Bangladesh until the age of 21. This obviously directly contradicts the Bangladeshi Foreign Minister. Moreover, rather than looking after younger people, it makes them even more vulnerable: effectively, if Shamima had been age 22, this could not have happened, but because she was only 15 she is now stateless. 

This means that Shamima, right now, at this moment is stateless, since she was not a Bangladeshi citizen at the time when the UK revoked her nationality and has little chance of remedying this as Bangladesh have refused to consider granting her nationality, even if she wanted it. Hence, revoking Shamima’s nationality is illegal under both international law and the UK domestic law.

The fact that Shamima’s age when she joined ISIS was ignored is also worrying; the government did not take any efficient action to safeguard her, by the contrary, she was even able to leave the UK using her sister’s passport without being noticed. This is an epic security failure that the government should be questioned about, instead of putting all the blame on Begum. It is obvious that being a member of terrorist group is a serious crime, since it is considered as a direct support for terrorism even if she was only a house wife .However, Begum should be prosecuted for her crime in the UK. Indeed, even if claims that she was an active terrorist are proven, the result is the same.

Furthermore, Shamima has lost her child because of the carelessness of the government to take back her child, even though the baby was a British citizen. Moreover, Ed Davey, the spokesperson of the Liberal Democrats’ home affairs, stated that:

 It is not only hard to see Ms Begum and her baby as constituting a serious threat to national security, but it also seems a huge wasted opportunity. We can learn lessons as to why a young girl went to Syria in the first place; lessons which could improve Britain’s security by helping us prevent this happening again. [62]

This is reformative approach is the approach expected from the democratic government that respects its international obligation, not to trade the reduction of statelessness for political gains.

Lack of Safeguards

Another major issue that must be highlighted is the lack of a review body to review these deprivations decisions or even a body that can grant a balanced procedures. The deprivation orders can be done without a prior judicial approval and the only channel for people to defend their case is the legal appeal, which shows clearly that there is no balance in the whole process. [63] There is no official scrutiny for these deprivation orders, nor periodic review on the publishing these orders. [64] This action should require convincing a jury with the guilt of a person instead of just giving the case to judge who decides based on a balance of probabilities. [65] And there are serious practical concerns: Shamima is trying to appeal the decision but as she is not allowed back into the country, her ability to do so from a refugee camp is sorely restricted. Over 120 people have had their citizenship stripped in the UK in the past two years, with no proper monitoring mechanism. In all but two known cases, the orders have been issued while the individual is overseas, leaving them stranded abroad during legal appeals that can take years. [66] This shows the political insistence on aligning the UK laws with the international standards through reverting the protection against statelessness in the 2002 act. [67]

There is also the problem of trial by media. In the case of Shamima Begum, the media almost directed the public opinion exactly towards the government direction. Shamima has said that she regrets speaking to media. [68] Shamima’s purpose of speaking to the media was basically to reach her family, instead, the UK media has used her as an example. Begum has been prosecuted by the media before, effectively forcing the Home Secretary’s decision. Allison Pearson, in the Daily Telegraph, confidently noted her judgement that “this fanatically stupid young woman …… must not under any circumstance be allowed to return back to Britain”. [69] Her judgement incited public opinion to rage and retribution; this is made even worse by her belief that preventing Begum from returning to the UK, this “is pretty much the only thing right now that unites this divided kingdom”. [70] Trying to use a girl’s fate to circumvent Brexit tensions is low. Pearson is not the only one; she was among many who built up their opinions and articles in different newspapers based on the first interview that Shamima had with the BBC, not on facts finding, legal arguments or even strategic thinking of the consequences of this approach. However, because the UK is at the era of far right political wing, Javid who had his eyes on the position of the Prime Minister, has decided to make the best use out of the press direction to the public opinion. [71] Consequently, Shamima’s trial was settled and she lost her British citizenship. Her lack of apology was critical in the decision as she was considered disloyal to her country and not deserving of protection anymore. [72] This is little different from the persecution of witches in medieval times. The media influence in Shamima’s case, therefore, rings an alarm bell towards the respect of rule of law, the home secretary’s expanded power and the influence of politics over law and even UK international obligations.

Terrorism, therefore, seems to be such an emotive category that governments can trample on all human rights, included nationality rights, in the supposed greater good of national security. The states’ current trend of depriving citizens of nationality (even if they are terrorists) is a kind of disavowal of responsibility. The states have an obligation to fight terrorism, and fighting terrorism is not achieved through statelessness: fighting terrorism can be more effective through rehabilitation of those like Begum, who took the decision to join a terrorist group at such early age. Taking them back, holding them accountable, is reasonable, but leaving them in a war zone and abandoning them, will not help except in boosting their spirit of anger and violence. It is the state’s responsibility to hold its citizens accountable, to grant the stability of public order, instead of depriving its citizens from their citizenship and to throw this burden on other states. Furthermore, if this is the state’s approach, there will not be any returnees from ISIS. On the contrary, there will be a wider opportunity for those operatives to reunite again and rebuild themselves to form a new, more aggressive and vengeance that targets their own countries more than Syria and Iraq themselves.

Conclusion

In conclusion, a young person, not yet 20, has been made stateless by a first-world country for an act committed when she was a child. Whether this was an act of stupidity, inspired by misplaced idealism, or a criminal act with men’s rea, it is not relevant. She is a British citizen and should benefit from the British justice system. Instead, she has been abandoned in a conflict zone to fend for herself, with no legal rights or recourse. Furthermore, her tiny baby – also a British citizen – was also abandoned and died. The UK government claim this is justified as Shamima Begum represents a threat to the good of the country and has committed acts seriously prejudicial to Britain’s interests. This may be true. However, what is not true is that she is a dual national: she has never had any other nationality. Nor is it true that she is a naturalised citizen and is entitled to another citizenship. Even if this latter test were legal, it is not applicable. Therefore, Shamima has been victimised under a government decision regarding legal interpretation that they have refused to explain. This contradicts the rule of law. It shows the power of the media and the susceptibility of politicians. Islamophobia cannot be ignored. Furthermore, the Act cannot be legal under International Law, even for naturalised citizens: a person entitled to another nationality does not actually have one. Therefore, revocation renders them stateless. This cannot be allowed.

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Sara Arafa
Lawyer (Member of the Egyptian Bar Association).
LLM Islamic Legitimate Policy and Sharia, Alexandria University, Egypt.
LLM Public International Law, University Leicester, United Kingdom.

[1] iTV News, 19 February 2019.

[2] Financial Times, 3rd March 2019.

[3] FARNHAM, 3rd April 2019.

[4] Universal Declaration of Human Rights, 1948, Article 15.

[5] The Universal Declaration of Human Rights, 2005.

[6] Convention on the Reduction of Statelessness, 1961, Annex 1; Convention Relating to the Status of Stateless Persons, 1954, Annex 2.

[7] Encyclopaedia Britannica, 10th April 2018.

[8] Law Teacher, 1st April 2019.

[9] Ibid.

[10] Shia Rights Watch, 6th November 2015.

[11] WARRICK, 2015, p. 32.

[12] The Washington Institute for Near East Policy, 2015.

[13] CENTRE, 30th April 2019.

[14] Homeland Security, 2015; The Straits Times, 17th February 2019.

[15] LISTER, COCKBURN, October 2015.

[16] KIRK, 24th March 2016.

[17] Ibid.

[18] Ibid.

[19] MOAVENI, 29th February 2019.

[20] JACOBS, 26th September 2017.

[21] International Centre for Counter-Terrorism, April 2016.

[22] MILTON, DODWELL, 2018, 11 CTCS.

[23] Ibid 20.

[24] ALY, 3rd March 2015.

[25] Ibid.

[26] Ibid 14.

[27] Ibid 18.

[28] HAILBRONNER, 2006.

[29] TRIMBACH, REIZ, 30th January 2018.

[30] Ibid.

[31] MACKLIN, 2015.

[32] Ibid.

[33] LAVI, 2011, 61 UTLJ 783, 810.

[34] GIBNEY, 2013, 61 Political Studies 639, 655.

[35] JOPPKE, 2016, 20 Citizenship Studies 741,748.

[36] British Nationality Act, Article 40 (2).

[37] Nationality, Immigration and Asylum Act 2002.

[38] UNITED KINGDOM, Statelessness Index, March 2019.

[39] Ibid.

[40] OLIVE, STURKE, 21 July 2005.

[41] The Immigration, Asylum and Nationality Act (IANA) Section 56.

[42] BENNHOLD, 14th May 2014.

[43] Immigration Act 2014, section 66.

[44] ANDERSON, April 2016.

[45] Immigration, Asylum and Nationality Bill, 27 October 2005.

[46] ROONEY, 19th May 2014.

[47] PARSONS, 2016.

[48] Ibid 38.

[49] Ibid 29.

[50] CHOUDHURY, 2017, 37 Critical Social Policy 229, 244.

[51] CBC, 2nd March 2019.

[52] SPENCER, 1st March 2019.

[53] Ibid.

[54] Ibid.

[55] BBC News, 20th February 2019.

[56] TOBIN, 21st February 2019.

[57] United Kingdom Supreme Court, 25 March 2015.

[58] State Watch, 2005.

[59] BUSBY, 4th May 2019.

[60] Secretary of State for the Home Department v Al-Jedda, 2013, UKSC 62.

[61] 2018, UKSIAC SC_146_2017.

[62] RAWLINSON, DODD, 19th February 2019.

[63] ROSS, GALEY, 23rd December 2013.

[64] Ibid.

[65] Ibid.

[66] MANTU, 2018, 26 JCES 32, 48.

[67] Ibid.

[68] ITV News, 29th February 2019.

[69] PEARSON, 19th February 2019.

[70] Ibid.

[71] GREENSDALE, 24th February 2019.

[72] Ibid 3.


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