“The Withdrawal of British Citizenship from Shamima Begum: A Human Rights Perspective.”
Abstract
In February 2015, three schoolgirls from Bethnal Green fled from Gatwick to Syria aiming to join ISIL and become symbols of the Jihad. Amongst them, Shamima Begum, 15 years old. Four years later, the girl the media calls “the IS bride” has indeed become a symbol, of Britain’s lost youth who rejected Britain, whom Britain now rejects.
In February 2019, held in Al-Hawl camp by the Syrian Democratic Forces and nine-months pregnant, she made a controversial public appearance in the form of an interview with the Times, in which she simultaneously admits that she would like to come back to the UK to give birth to and raise her child, and that she does not regret joining ISIS. These declarations sparked public debate and a strong response from the then Home Office Secretary Sajid Javid to revoke Shamima from her British citizenship.
I would like to conduct my research on the assessment of this decision against The European Convention of Human Rights. The Convention has been studied in full, however, due to the limitations of the project, only a selection of relevant articles will be discussed.
The intention of this research is to hopefully begin to shed some light on the complexity of the case and to analyze whether the UK’s decision is in accordance with Human Rights laws or a hot-headed response to the pressure of public opinion to make an example out of Ms. Begum, while Asma Al-Assad, the wife of Bashar Al-Assad whose regime has been charged for war against humanity, has not seen her British citizenship revoked and is still free to travel to the UK.
Introduction
On 17th February 2015, three schoolgirls from Bethnal Green Shamima Begum (15) [Begum], Kadiza Sultana (17) and Amira Abase (17) flew from Gatwick Airport to Istanbul and subsequently travelled by bus to Urfa, close to the Syrian border. They then crossed the Syrian border, apparently with the aim of joining ISIL. Later that spring, the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe gave evidence to a parliamentary select committee to the effect that they would not be subject to criminal charges if they were to return to the UK – ‘if they return home there are no terrorism issues here.’[i]
On 13th February 2019, held in Al-Hawl camp by the Syrian Democratic Forces and nine-months pregnant, she made a controversial public appearance in the form of an interview with the Times[ii], in which she simultaneously admits that she would like to come back to the UK to give birth to and raise her child, and that she does not regret joining ISIS. These declarations sparked public debate and a strong response from the then Home Office Secretary Sajid Javid to revoke Begum’s British citizenship (20th February 2019)[iii].
According to the Home Office Transparency Report 2018[iv], the UK government uses a range of methods to tackle to threat of terrorism, and have increasingly made use of their powers to remove UK citizenship:
“We continue to seek to prosecute foreign fighters where there is evidence that crimes have been committed, and to ensure that they do not pose a threat to our national security. In addition to seeking prosecution, the powers covered in this report have been and will be used to reduce the cohort of overseas individuals of national security concern who can return, and to mitigate the threat they pose. Where appropriate, we have used nationality and immigration powers to deprive individuals of their British citizenship and to exclude foreign nationals from the UK who presence here would not be conducive to the public good. We have also disrupted the ability of people to travel abroad, and to return to the UK, including through the lawful temporary seizure of passports at the border, and the introduction of Temporary Exclusion Orders (TEOs).”
The power to deprive nationality cited by the Home Office is based on the 1981 Nationality Act:
“The Secretary of State may deprive an individual of their British citizenship if satisfied that such action is ‘conducive to the public good’ or if the individual obtained their British citizenship by means of fraud, false representation or concealment of material fact…..”
In these circumstances, the test of ‘conducive to the public good’ may include actions which constitute threats to national security, including acts of terrorism, and ‘unacceptable behaviour’, which may cover the glorification of terrorism. Given the previous statements of Sir Bernard Hogan-Howe regarding the lack of threat posed by Begum and her fellow travelers, it could be inferred that the removal of nationality from Begum was based on her apparently ‘unacceptable behaviour’. These powers of removal have been used increasingly by HM Government in recent years, with 14 people in total losing UK Citizenship in 2016, and 104 people losing UK citizenship in 2017[v].
Under the Nationality Act 2014, the UK Government may also remove British citizenship in a ‘subset of ‘conducive’ cases, where naturalized citizens have behaved in a matter ‘seriously prejudicial to the vital interests of the UK’[vi]. This applies even if the individual in question would be rendered stateless, but has the possibility of acquiring citizenship of another country.
However, the fact that the 1981 and 2014 Acts exist in UK law is not to say that the correct procedures have been followed or the conditions for removal of citizenship met[vii], nor is it to say that such action is compatible with international law or conventions.
In Begum’s case, it seems that the Home Secretary felt there were ‘reasonable grounds’ as required by the law, in the fact that Begum’s mother is a Bangladeshi citizen that under the Bangladesh Citizenship Act of 1951 she could acquire citizenship of Bangladesh by descent. In addition, until Begum turns 21, she is allowed to be a dual national of Bangladesh, under the same 1951 Act.
There have been at least two successful appeals against the removal of UK citizenship through the Special Immigration Appeals Court in recent years (December 2017 and November 2018).[viii] In both cases, citizenship had been removed on grounds of national security and terrorism and on the basis of entitlement to Bangladeshi citizenship. The grounds for the successful appeals were similar, in that Bangladesh does not allow for dual citizenship, and that the state practice of Bangladesh was to not grant citizenship in such circumstances. In addition, on February 20th 2019 there was a public statement by Abdul Momen, a Minister of the Bangladesh Foreign Ministry that citizenship would not be granted in the case of Begum[ix]. Momen also said that, should she travel to Bangladesh, she ‘could be hanged for terrorism’.
Citizenship is recognized of crucial importance for the rights of an individual, with Arendt describing it as follows:
“Man …. can lose all so-called Rights of Man without losing his essential quality as a man, his human dignity. Only the loss of a polity itself expels him from humanity.”[x]
Krieger’s interpretation of Arendt describes the condition of ‘statelessness’ as
“….the violation of the indispensable human right…..”[xi]
Whilst the context of Arendt’s discussion of statelessness was different (Totalitarianism), and followed an extended period of her own personal statelessness (1937-1950), it’s clear that citizenship is a significant platform for the expression of one’s individual rights. Begum’s loss of citizenship has wide consequences for her ability to travel, where she can reside, and what protections and services she can access for her and her family[xii]. It may also affect her ability to access a fair trial, and in acting against her, but not her fellow travelers from the UK, the decision may have been discriminatory.
In this essay I will examine whether the actions taken against Begum are compatible with the UK’s obligations under international human rights law and conventions, and suggest avenues for future research into this subject.
Universal Declaration of Human Rights (please replace this section by article 8 of the ECHR)
The Universal Declaration of Human Rights[xiii] (UDHR) was adopted by the United Nations General Assembly in 1948, with the United Kingdom voting in favour. Although the UK remains a member of the United Nations, the Declaration is not enforceable in law in the UK. The most relevant article to Begum’s current situation is Article 15:
- Everyone has the right to a nationality.
- No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Given the removal of Begum’s UK citizenship by the Home Secretary, and the negative response from the Bangladesh authorities to the possibility of her attaining Bangladeshi citizenship, it seems that Begum’s rights under 15 (i) have been violated. Even if she were able to attain Bangladeshi citizenship, public statements suggest that she would be subject to prosecution with the potential for capital punishment, it seems unlikely that this is a route Begum is likely to pursue. Given that, Begum is de facto without nationality and its associated rights at present.
The question of whether her nationality was arbitrarily deprived by the Home Secretary would require greater scrutiny of the motivations and reasoning behind the decision. She has been treated differently than others in a similar position, such as Sultana and Abase who travelled to Syria with her in 2015, ostensibly for the same purpose. Although Sultana is reported to have died in a Russian airstrike in May 2016[xiv], it seems that Abase has not had her UK citizenship withdrawn. It also seems that schoolfriend Sharmeema Begum (no relation), who travelled to Syria in 2014, reportedly for the same purpose, also remains a UK citizen. By contrast, Aqsa Mahmood, who travelled to Syria from the UK in 2013, did have her UK citizenship withdrawn in 2017, as part of a group of ‘150 suspected jihadists and criminals’ who lost citizenship and were barred from returning to the UK. Mahmood’s situation may be slightly different in that she was believed to have been part of an ISIS unit, the al-Khansaa Brigade, designed to enforce Sharia law. Regardless, the evidence of Mahmood or Begum’s activities in Syria may not be fully known to UK authorities, and may not be sufficient to form the basis of a decision on citizenship.
There is also a contrast between the stated policies of the UK Government on citizens participating in ISIS-related activities in Syria, and their actions in Begum’s case. Commissioner Hogan-Howe felt able to tell a UK Parliamentary committee in 2015 that she would be unlikely to face criminal charges if she were to return to the UK. The UK Government’s CONTEST strategy[xv] for countering terrorism suggests that the removal of citizenship is a possible penalty for individuals such as Begum, it also discusses the use of Temporary Exclusion Orders (TEOs) which can be issued by the Home Secretary and a judge to manage their return to the UK and ‘impose obligations upon the individual once they return to help protect members of the public from a risk of terrorism’. Indeed, within the CONTEST guidance, a very similar case to Begum’s is given as a case study, detailing how a TEO was used for a UK citizen, rather than withdrawal of citizenship. One of the material benefits of using a TEO for this purpose is that it allows the Police and Crown Prosecution Service to investigate whether criminal offences have been committed, and to deal with them appropriately.
It can be argued that the actions of the UK authorities in Begum’s case were arbitrary, given they inconsistent treatment of other UK citizens in similar cases at the same time, and given the discretion to use TEOs in the Government’s own guidance.
Given the trans-national scope of the UNHR, there is also a sharp contrast between Begum’s treatment and those of nationals of other countries, which supports the implication of arbitrary treatment.
German national Linda Wenzl travelled to Syria in July 2016, and was reported to have joined ISIS as a member of the al-Khansaa brigade and wife of an ISIS member[xvi]. She was captured in Syria by Iraqi soldiers in July 2017 and imprisoned in Iraq[xvii]. She was tried in Iraq and in February 2018 was sentenced to 6 years in prison for being an ISIS member and entering Iraq illegally[xviii]. Her German citizenship has not been withdrawn, and she is currently serving her sentence in Iraq.
Another example is French citizen and alleged ISIS member Djamila Boutoutaou, who was also arrested by the Iraqi authorities. She was tried in 2018 for her association with ISIS and in April was found guilty and sentenced to life imprisonment[xix]. Although Boutoutaou is of Algerian extraction, and thus potentially has a claim for a second citizenship, France has not withdrawn her French citizenship despite her conviction.
The final argument in favour of Begum’s treatment being arbitrary is the timing of the action. Although she was widely-known to have traveled to Syria to join ISIS in 2015, there was little discussion of her case publicly, and she did not have her UK citizenship withdrawn at the same time as Mahmood and many others in 2017. Given the fact that the decision was made public less than a week after Begum’s interview with The Times, and the associated publicity, it may be that the UK Government responded primarily to the publicity, rather than the specifics of the case. Clearly perception plays a huge role in politics, and the inference that the UK Government was not being tough enough on UK ISIS members may have persuaded them to make an example of Begum. Given the decision ignored the possibility of using other measures such as TEOs, and given that the police had stated she was unlikely to face criminal charges, potentially the sudden withdrawal of citizenship was primarily motivated by political considerations.
Given Begum has de facto lost her nationality, and that there are grounds to suspect (but not necessarily conclude, without knowing the full basis on which the decision was taken) that the action was taken arbitrarily, it seems that potentially both parts of article 15 may have been violated by the decision of the Home Secretary.
European Convention on Human Rights
Article 6
Article 8
Article 14
Article 15
- Article 8 + Article 14
- definitions of both articles. Article 14 is a parasitic article, almost never used on its own.
- Pro Shamima case:
Law of the European Convention on Human Rights, DJ Harris
- p.766: In recent cases, the Court defined discrimination as ‘treating differently, without an objective and reasonable justification, persons in relevantly similar situations’.
- p.767: Article 14 is only invokable in combination with other rights in the Convention. It is a “parasitic” provision. Ambit test: aspects of the case need to be similar. The similarity lies in the fact that 4 girls in total left (including the original Sharmina Begum), and only SB’s citizenship got revoked.
- p.768: Where a right falls outside the Convention, in theory the State has no obligation to avoid the discrimination. However the principle behind Fretté vs France is that if the State adopts a law, it should do it in a non-discriminatory way.
- Does the alleged difference of treatment fall on the grounds of article 1?
- P.769: Situations are analogous: “persons in relevantly similar situations”.
Conclusion
Avenues for future research
Whilst the case of Begum highlights a number of issues relating to the loss of her citizenship, I have not addressed the situation of her children, all three of whom unfortunately have passed away in Syria. Given these children were born in Syria but to a UK mother, they had a claim for UK citizenship, but it’s unknown whether these claims were exercised. Given it is reported there are a number of children in a similar situation in Syria, future research could examine their legal position, and whether the UK Government is obligated to assist these citizens abroad. At present, it seems that the UK Government is unwilling to support a repatriation of these citizens, and it has been reported that the Home Secretary has blocked such an attempt[xx].
In addition, it would also be valuable to examine further the Human Rights implications of the operation of the Special Immigration Appeals Court, given this is the UK body of appeal for Begum and those in a similar situation. Given the fact that intelligence material may have been relied upon by the authorities to make their original decisions, evidence may be presented to a Special Advocate, who is unable to discuss it with the individual or their lawyers. This may be incompatible to an individual’s right to a fair trial under article 6 of the ECHR, and the right to an effective remedy under Article 8 of the UDHR.
References & Bibliography
[i] British Citizenship Revoked, Bangladeshi Citizenship Uncertain – What Next for Shamima Begum?; Dr Rumyana van Ark, International Centre for Counter-Terrorism – the Hague; 11th March 2019
[ii] Shamima Begum: Bring me home, says Bethnal Green girl who left to join Isis; Anthony Loyd, The Times; February 13th 2019
[iii] Shamima Begum: IS teenager to lose UK Citizenship; BBC News website; 20th February 2019
[iv] HM Government Transparency Report 2018: Disruptive and Investigatory Powers (CM 9609); HM Government; July 2018, p26
[v] HM Government Transparency Report 2018: Disruptive and Investigatory Powers (CM 9609); HM Government; July 2018, p27
[vi] HM Government Transparency Report 2018: Disruptive and Investigatory Powers (CM 9609); HM Government; July 2018, p26
[vii] Shamima Begum: Lawyer says teen was ‘groomed’; Hanna Yusuf and Steve Swann, BBC News website; 31st May 2019
[viii] British Citizenship Revoked, Bangladeshi Citizenship Uncertain – What Next for Shamima Begum?; Dr Rumyana van Ark, International Centre for Counter-Terrorism – the Hague; 11th March 2019
[ix] Bangladesh’s Foreign Minister tells ITV News Shamima Begum is ‘not our problem’; Rohit Kachroo, ITV News; 2nd May 2019
[x] Origins of Totalitarianism; Hannah Arendt, 1951, p297
[xi] The Historical Hannah Arendt; Leonard Krieger, The Journal of Modern History, Volume 48, No. 4, December 1976, p682
[xii] British Citizenship Revoked, Bangladeshi Citizenship Uncertain – What Next for Shamima Begum?; Dr Rumyana van Ark, International Centre for Counter-Terrorism – the Hague; 11th March 2019
[xiii] Universal Declaration of Human Rights; Humphrey, Cassin et al, United Nations General Assembly; 10th December 1948
[xiv] Islamic State brides – where are the female jihadists now?; Sunita Patel-Carstairs, Sky News website; 14th February 2019
[xv] CONTEST, The United Kingdom’s Strategy for Countering Terrorism (Version 4, CM 9608); HM Government; June 2018, pp49-51
[xvi] At 15, she joined ISIS after converting to Islam. Now this German teen wants to go home; Rick Noack, Washington Post website; 24th July 2017
[xvii] Teenage Isil bride from Germany captured in Mosul; Josie Ensor and Justin Huggler, The Telegraph; 18th July 2017
[xviii] Iraq: German ‘Islamic State’ bride sentenced to 6 years in prison; Deutsche Welle website; 18th February 2018
[xix] How Europe is handing off its ISIS Militants to Iraq; Pesha Magid, Foreign Policy website; 15th June 2019
[xx] Priti Patel blocks rescue of British ISIS children; Mark Townsend, The Guardian; 16th November 2019
Additional bibliography: Law of the European Convention on Human Rights, DJ Harris
International Human Rights, Alston and Goodman
Human Rights Act 1998
Guide on Article 2 of the European Convention on Human Rights, by the European Court of Human Rights, PDF
Guide on Article 8 of the European Convention on Human Rights, by the European Court of Human Rights, PDF
Guide on Article 6 of the European Convention on Human Rights, by the European Court of Human Rights, PDF
Human Rights and Terrorism, Hoffman, 2004
The Discrimination Grounds of Article 14 of the European Convention on Human Rights, Gerards, 2013
