Shamima Begum: legality of revoking British citizenship of Islamic State teenager hangs on her heritage

Devyani Prabhat, University of Bristol

Sajiv Javid’s decision to revoke the citizenship of Shamima Begum, the 19-year-old from Bethnal Green who left to join Islamic State in 2015, has been met with mixed reaction. While some supported the home secretary’s decision, others have expressed concern about its implications.
In these debates, there is much confusion about what cancellation of citizenship entails: whether this is just the cancellation of Begum’s passport, whether she is becoming stateless or whether she could be sent to Bangladesh because she comes from a family of Bangladeshi heritage.

In reality, cancellation of British citizenship means people can be left in limbo in war zones because they lose the right to re-enter the UK and to receive any diplomatic protection.

Begum’s case, while high profile, is not unique, and in 2017, there was a large spike in cases and the citizenship of 104 people was revoked on grounds where it was deemed “conducive to the public good”.

Preventing statelessness

Policies around cancelling British citizenship have evolved. Over the years governments have tailored national laws to fit the UK’s commitments two UN conventions in 1954 and 1961 designed to prevent statelessness.

The British home secretary has, however, long held the power to cancel the British citizenship of dual or multiple nationality holders. In such situations there were no concerns of statelessness, as the person would have another surviving nationality once their British citizenship was taken away. So far, all cases of people being stripped of their citizenship have involved dual or multiple nationals.

Since 2010, successive home secretaries have attempted to remove the citizenship of naturalised citizens – people who are not born in the UK but whose only nationality is British. Each time, the courts have stepped in to prevent such stripping of citizenship and concerns have been raised about making somebody stateless. In each of these cases the courts have examined foreign nationality laws at great length to determine if the person had another nationality or not.

The power to cancel citizenship

Because of these defeats in the courts, in 2014 an amendment changed Section 40 of the 1981 British Nationality Act to introduce a new power for the home secretary to cancel the citizenship of single nationality holders even at the risk of creating a stateless person. This was specifically tailored to fit the UK’s obligations under international law, and can only take place for conduct that is deemed seriously prejudicial to national interests.

The then home secretary, Theresa May, was grappling with two cases involving naturalised citizens born in Vietnam and Iraq who became British through legal process, so the amendment was limited to cases of naturalised citizens who held only British citizenship.

After strident opposition to the amendment from the House of Lords, a safeguard against statelessness was added to it. This required that even if the person being stripped of their nationality didn’t have another nationality, the home secretary must reasonably believe that they could acquire one.

As Begum was born in the UK, she was presumably not naturalised as British, so the 2014 amendment would not seem to apply to her. In her case, the home secretary has to establish that she has another actual nationality in place. It’s likely that her heritage confers Bangladeshi nationality on her – but this depends on Bangladeshi nationality law. Ironically, this means that whether a cancellation measure survives a court challenge by affected people largely depends on the text and interpretation of Bangladeshi nationality provisions and case law.

Should her family challenge the decision to strip her of her citizenship, her appeal will come up before a special secret court, the Special Immigration Appeals Commission, where the focus will be on whether or not Bangladeshi nationality exists for a British-born person of Bangladeshi heritage.

Your heritage or your citizenship

Somebody who has lost their citizenship has no right to re-enter the UK, or to seek diplomatic protection from the British government. In the past those who were stripped of citizenship have subsequently lost their lives in drone attacks in war zones. Some have been sent to foreign countries for trial.

The extent and seriousness of this power to strip somebody of their citizenship means it is kept under review from time to time. The mechanism should not be used if there are other means available, such as criminal trials or the cancellation of travel documents (such as passports) to prevent travel.

Yet, the home secretary’s power to strip somebody of their citizenship creates different kinds of effects for different citizens. While those British by birth and descent are unaffected, naturalised citizens are at greater risk of statelessness. This undermines the concept of equal citizenship in a diverse and democratic society.

The fallout of this situation should be greater awareness in British communities of naturalised citizens that their heritage may continue to matter in the UK – even if they don’t have another passport or citizenship certificate from another country. In this way, citizenship rights appear to have become conditional on the heritage of British citizens.The Conversation

Devyani Prabhat, Reader in Law, University of Bristol

This article is republished from The Conversation under a Creative Commons license. Read the original article.