Revocation of British Citizenship—The Shamima Begum Case

Revocation of British citizenship—the Shamima Begum case

26/02/2019 Immigration analysis: Philip Trott, partner, and Matthew James, solicitor, at Bates Wells Braithwaite, discuss the legal situation of Shamima Begum following her request to return to the UK.

From a legal perspective, what are Shamima Begum’s options to challenge a revocation order, stripping British citizenship? Are there any alternative legal paths for her to return to the UK even without citizenship? In Shamima Begum’s (and other former ISIS members) case it is likely that the Home Secretary will certify that the revocation order was based on information which should not be made public, eg in the interests of national security. If this happens, an appeal can only be made to the Special Immigration Appeals Commis- sion (SIAC) and will be restricted to considering whether the decision was a lawful one. Shamima Begum will have 28 days from the date of the Home Secretary’s letter to file an appeal with the SIAC. Due to the nature of the evidence the Home Secretary will rely on, it is likely that the closed material procedure will be engaged. This means that Shamima Begum and her lawyer will not have access to all of the evidence on which the decision was based. Instead, a security-vetted Special Advocate will be appointed to represent her when this evidence is presented. This advocate cannot discuss this ‘secret’ evidence with her. In terms of returning to the UK, first and foremost Shamima Begum will encounter practical issues due to having no valid travel documents. An application under Immigration Rules, Appendix FM made on the basis of her being the parent of a British citizen son would require her son to be in the UK. Furthermore, a Zam- brano claim (Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm), C-34/09), the Brexit issue aside, would only succeed if her son would be forced to leave the EEA area if residence rights were not granted to Shamima Begum. However, if Shamima Begum makes a claim on the basis of her child’s right to family life, the question of what is in the best interests of her child may be relevant. It is worth noting that any application by her is likely to be refused on suitability grounds. For the same reasons as the revocation order, such a decision will need to be appealed to the SIAC.

Can British citizens be deprived of citizenship in this way? Under section 40 of the British Nationality Act 1981 (BNA 1981), any British citizen may be deprived of his or her citizenship if the Home Secretary is satisfied that it would be conducive to the public good to do so, and that they would not become stateless as a result. ‘Conducive to the public good’ means in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours. The UK government considers that deprivation on ‘conducive’ grounds is an appropriate response to activities such as espionage, acts of terrorism directed at this country or an allied power, or expressing views which foment, justify or glorify terrorist violence in furtherance of particular beliefs. It follows that British citizenship can be deprived on the basis of their membership with a terrorist organisation provided that the individual would not be left stateless (ie they were not a dual national). Where citizenship was obtained through naturalisation, the Home Secretary may deprive that person of their British citizenship if they are able to avoid remaining stateless. To do so, the Home Secretary would need reasonable grounds for believing that the individual is able to acquire (or reacquire) the citizenship of another country.

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The government has increasingly used these powers in order to ‘combat terrorism’. 2017 saw almost ten times the deprivations of 2016, the vast majority involving alleged terrorism.

Do any of Shamima Begum’s personal circumstances, eg giving birth, leaving the UK at the age of 16, never visiting Bangladesh etc, have any impact on her legal situation when it comes to challenging the order? An appeal to SIAC is restricted to considering whether the decision under challenge was a lawful one. This means that whether the judge thinks the decision was right or wrong does not factor in the appeal. For the decision to be lawful, the Home Secretary has to prove two things. Firstly, that Shamima Begum had involvement in terrorism or that her behaviour was otherwise unacceptable. Secondly, that it is in the public good to deprive her of status (which of course her personal circumstances will come into). It has been established since ZZ v Secretary of State for the Home Department C-300/11 that procedures before the SIAC are lawful, despite the use of closed material. However, the arbitrary denial or revocation of citizenship is capable of engaging Shamima Begum’s rights under Article 8 of the ECHR due to its impact on her private and family life and this is where Shamima Begum’s personal circumstances may have more of an impact on challenging the order. K2 v UK [2017] ECHR 238 laid out the two issues to be considered when determining such a decision’s effect on an applicant’s Article 8 rights, namely:

• whether the revocation of citizenship was arbitrary • the effect of the revocation for the applicant In K2 v UK, the applicant’s family were no longer living in the UK (and were able to join him in Sudan) so the deprivation was a justifiable interference with those rights. If the opposite is true in Shamima Begum’s case and if, as a result of the deprivation, she loses all meaningful contact with her family in the UK, she may be able to distinguish her case on those grounds and engage her Article 8 ECHR rights. The Home Secretary would then need to show that the deprivation was a justifiable interference of those rights under Article 8(2) ECHR. In contrast, the fact that Shamima Begum has never been to Bangladesh (and Bangladesh saying she is not a citizen) may not be enough to challenge the decision on the grounds of her being stateless (Abu Hamza v SSHD (SIAC, 5 November 2010)). The word ‘stateless’ in BNA 1981, s 40(4) refers to de jure stateless per- sons. Shamima Begum may be de facto stateless by virtue of having no Bangladeshi passport or recognition by the Bangladeshi authorities. However, if by virtue of Bangladeshi law and government practice she obtained the nationality automatically then she would not be de jure stateless and therefore still can be deprived of her British citizenship. The issue may even come down to which country was able to legally deprive her of her nationality first (Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 3 All ER 1015).

Can Shamima Begum, if she enters the UK, be prosecuted under British criminal law or international criminal law? If yes, for what offences? Shamima Begum could be prosecuted under British criminal law as UK courts have extra-territorial jurisdiction over several terrorism offences committed outside the UK, including those listed below, provided the Crown Prosecution Service decides that:

• there is sufficient evidence to provide a realistic prospect of conviction • the prosecution is in the public interest

Potential offences under the Terrorism Act 2000 (TA 2000) and the Terrorism Act 2006 (TA 2006) include:

• belonging to or professing to belong to ISIS, which is a proscribed organisation under TA 2000, s 11 • inviting support for ISIS (and the support is not, or is not restricted to, the provision of money or other property) • arranging, managing or assisting in managing a meeting in the knowledge that the meeting is to support or further the activities of ISIS • wearing clothing or carrying or displaying articles in public in such a way as to arouse reasonable sus- picion that she is a member or supporter of ISIS (TA 2000, ss 12–13) • preparation of terrorist acts • providing or receiving training for preparing or commissioning acts of terrorism or assisting with this • attending a place used for terrorist training (TA 2006, ss 5, 6 and 8) Section 1 of the Counter-Terrorism and Border Security Act 2019 also amends TA 2000 to include the of- fence of expressing an opinion or belief that is supportive of a proscribed organisation, such as ISIS. Crimes within the jurisdiction of the International Criminal Court include the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

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Published Date 26 February 2019 FREE TRIAL Jurisdiction England; Northern Ireland; Scotland; Wales

Interviewed by Kacper Zajac. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

RELX (UK) Limited, trading as LexisNexis®. Registered office 1-3 Strand London WC2N 5JR. Registered in England number 2746621. VAT Registered No. GB 730 8595 20. LexisNexis and the Knowledge Burst logo are registered trademarks of RELX Inc. © 2017 LexisNexis SA-0617-25. The information in this document is current as of June 2017 and is subject to change without notice.