The case of Shamima Begum has been hotly debated by the nation, challenging our sense of what is right and wrong. It has gripped the popular imagination in a way that few cases have in recent times, but what does the law say?
The facts
Shamima Begum was born in Bethnal Green and attended the Bethnal Green Academy. Her parents are of Bangladeshi origin. She was one of three 15 year old schoolgirls from the Academy who travelled to Raqqa, Syria via Turkey in February 2015 to join ISIS. After arriving in Raqqa in 2015, Shamima married Yago Riedijk, a Dutch convert to Islam. She had two children with him, both of whom had died.
When discovered by The Times correspondent, Anthony Lloyd on 13 February 2019, at the UN al-Hawl Refugee Camp, Shamima, was 9 months pregnant and stated that she wished to raise her child in the UK but did not regret her decision to join ISIL. She said she had been unphased by seeing the head of a beheaded man as he was “an enemy of Islam”. She also said that ISIL did not deserve victory because of their corruption and oppression. Shamima stated that she wanted to return home to protect the health of her new baby. She claimed “they don’t have any evidence against me doing anything dangerous. When I went to Syria I was just a housewife, the entire four years I stayed at home, took care of my husband…I never did anything. I never made propaganda. I never encouraged people to come to Syria”. Shamima also said that the Manchester Arena bombings were justified because of the bombing of civilians in Syria. These comments have led to outrage and fuelled feelings of horror amongst the public. A sky poll on 19th February, indicates that 78% of those polled oppose her return to the UK and favour revocation of her British citizenship.
On 16th February 2019 she gave birth to a baby boy, named Jarrah in the refugee camp. He later died on 7th March due to pneumonia.
Sajid Javid, the Home Secretary has said:
my message is clear: if you have supported terrorist organisations abroad I will not hesitate to prevent your return…if you do manage to return you should be ready to be questioned, investigated and potentially prosecuted.
On about 19th February 2019 the Home Secretary sent a letter to Shamima Begum’s parents stating that her citizenship would be revoked. Nothing appears to have been said about the baby, who would have had British Citizenship by virtue of his mother’s citizenship. That debate was brought to an abrupt and untimely end when baby Jarrah died on about 7th March 2019.
The Home Secretary’s decision and powers relied on
The Home Secretary can deprive a person of citizenship under Section 40 British Nationality Act 1981, if the Secretary of State is satisfied that this is ‘conducive to the public good’.
However, Section 40 (4) states that the Secretary of State cannot make an order if he is satisfied that the order would make a person stateless, except where the Secretary of State certifies that he has taken the decision wholly or partly in reliance on information which should not be made public in the interests of national security … or otherwise in the public interest.
In open statements made, the Home Secretary does appear to be relying on a threat to national security. He no doubt has evidence, it is said, but that evidence cannot be made public. This is a circular argument. The evidence can be tested in the Special Immigration Appeals Commission (SIAC) but any evidence which relates to security considerations will be tested behind closed doors. Shamima will not have access to it and cannot challenge it and indeed the whole process is conducted while she is abroad with significant legal challenges for her lawyers in obtaining funding for her case and instructions from her.
A threat to national security is not a requirement of the test under ‘conducive to public good’. In Pham –v- The Secretary of State for the Home Department the Court of Appeal held that this term covered conduct which ‘breached his duty of loyalty so fundamentally that it cannot be reasonable to expect the state to continue to provide him with the protection which flows from citizenship’.
Article 15 of the Universal Declaration of Human Rights (UDHR) provides that ‘no one shall be arbitrarily deprived of his nationality’. Both domestic and international law are clear on this point. Mr Javid argues that Ms Begum is entitled to Bangladeshi nationality because her parents have Bangladeshi nationality and she has access to it until the age of 21. So was Shamima a Bangladeshi national by operation of law at the time of the Home Office and Secretary’s decision? This is not clear. It is not sufficient for the Home Secretary to say that she can apply for it. Bangladesh has unsurprisingly indicated they are not keen to embrace Shamima.
The Home Secretary has chosen to bypass the legal provisions and guidance available to him and to strip Shamima of her nationality. The discretion given to the Secretary of State is extremely wide under the rubric of “conducive to the public good”. What little we know of the facts suggests that Shamima has not herself been engaged in any terrorist or violent activity. Her downfall has been the reprehensible views and opinions which she has voiced and the lack of remorse shown.
The Dutch immigration and naturalization service has confirmed that they have withdrawn Dutch nationality from 15 jihadists, or announced an intention to do so. The British are building up quite a record and have notched up approximately 150 so far.
Stripping Shamima of her citizenship merely side steps the big issues of how to deal with home grown jihadis and how they can be punished and yet rehabilitated. Also of how we best discharge our domestic and international law responsibilities.
The legal position – what powers the Home Secretary has available to him
There exist a battery of laws and powers at the UK’s disposal to deal with returning terrorists and jihadis. The Counter Terrorism and Security Act 2015 can be relied on if the Home Secretary reasonably suspects Shamima has been involved in “terrorism related activity” and poses a threat to security in the UK. He can impose a temporary exclusion order (TEO). This provides for a managed return to the UK on strict conditions. Once Shamima is back in the country and following investigation, if she is considered a threat to national security, then terrorism prevention investigation measure can be implemented, (TIPM).
Further measures have been introduced by the Counter Terrorism and Border Security Act 2019 (CTSBA) which provides that entering a designated area without reasonable excuse is a criminal offence. Section 1 (A) of the CTBSA states that a person commits an offence if the person – (a) expresses an opinion or belief that is supportive of a prescribed organisation, and (b) in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation. Section 4 makes it an offence to enter or remain in a designated area. Admittedly, since Shamima is trapped in a camp that she is trying to get out of, this may not apply.
The UK’s counter terrorism strategy, CONTEST is a key part of the Government’s armoury of weapons to deal with terrorism. It dates back to 2003 and was last updated June 2018. It no where mentions stripping people of citizenship. It states: To stop terrorist attacks happening in this country and against UK interests overseas we will: ‘Bring foreign fighters to justice in accordance with due legal process if there is evidence that crimes have been committed, regardless of their nationality.’ And that: ‘strong accountability will underpin our approach’. It talks of the need to ‘Tackle causes of radicalisation’, then ‘Early Intervention’ to safeguard and support those most at risk of radicalisation, finally ‘Rehabilitation of those already engaged in terrorism’. A section is devoted to dealing with managing the risk of terrorist offenders with procedures such as: Separation Centres, identifying the risk by each offender and providing a range of interventions.
Interestingly, there is even a Syria returners illustrative example (see paragraph 171 of the CONTEST policy) which bears a striking resemblance to Shamima’s situation:
In 2015, a British woman travels to join Daesh. In 2017 the individual flees Daesh-held territory with a new born baby and they make their way to Turkey. On arrival in Turkey the mother and the child are detained for entering the country illegally. Following the mother’s detention the British authorities are notified. DNA testing of the child is conducted to establish their entitlement to a British passport. Given that the mother has lived in Daesh-held territory, the Home Secretary and a judge approve the use of a Temporary Exclusion Order (TEO) to manage her return to the UK. The TEO allows us to specify the route of return to the UK and to impose obligations upon the individual once they return to help protect members of the public from a risk of terrorism.…On arrival in the UK the police launch an investigation into the woman’s activities in Syria to determine whether any crimes have been committed. If there is evidence that a crime has been committed then the mother will be charged and the Crown Prosecution Service will conduct criminal proceedings. If there is no evidence of criminality, the mother is assisted in reintegrating into society, for example, by requiring her to attend a series of sessions with a specially trained de-radicalisation mentor. In the meantime the mother is also obliged – as part of her TEO – to report regularly to a police.
Conclusion
It is not clear why the Home Secretary has decided to make an example of Shamima. A cynical response is that her case came up at the wrong time and he felt under pressure and allowed himself to bow to a populist outcry for blood. Some say as an Asian man in that position he needed to show that he could be tougher than tough on other ethnic minorities in order to have credibility with his peers. This is a common enough fear for those joining a new elite club. That he holds ‘evidence’ that we must assume proves his case is not a compelling argument. At a glance the ‘evidence’ does not hold up. There is no discernible evidence that Shamima has personally engaged in acts of violence or that she constitutes a threat to national security from her actions to date. In any event, he could have relied on the terrorism laws and policy if she did as demonstrated above. The Home Secretary’s actions have stoked the fires of fear though. The removal of citizenship from a person born in the UK, risks creating a two tier citizenship, the first tier for those whose ancestral links have lain here for generations and another for those who are more recent immigrants, with parents born outside the UK. This is already spreading fear and alarm amongst immigrant communities. The Home Secretary’s actions look like a calculated and cynical ploy to court favour with populist opinion both public and in his party, irrespective of the rule of law.
With special thanks to Liz Barratt, Partner, Bindmans.