By Ryan Corbett.

Legal practitioner and researcher currently based in Paris, France. Her focus is citizenship and refugee law, including how citizenship law can lead to migration issues. She has experience working on these issues in the United States, Israel, Egypt, Malaysia, and France.

Introduction

In 2015, a 15-year-old UK citizen named Shamima Begum travelled from London to Syria in order to join the so-called Islamic State, also known as ISIS. In February of 2019, the UK Home Office made the decision to strip the now-19-year-old of her British citizenship, based on the view that she is a Bangladeshi citizen and so the decision would not render her stateless. The UK Home Office’s decision raises a plethora of legal and practical questions of citizenship law that will no doubt be raised in Begum’s appeal to the Special Immigration Appeals Commission (SIAC).[1]

The determination of whether the UK can strip Begum of her citizenship depends on international law, UK domestic law, and Bangladesh citizenship law. UK domestic law sets out the conditions under which Begum’s citizenship can be stripped. The Nationality, Immigration and Asylum Act of 2002 now allows any British citizen, naturalised or citizen from birth, to be deprived of citizenship where the Secretary of State is satisfied that “the person has done anything seriously prejudicial to the vital interests” of the UK.[2] However this cannot be done when that person was a UK citizen from birth and would be rendered stateless by this deprivation. The UK believes that it has acted in accordance with this law in their determination to strip Begum of her citizenship.  

Relevant international law and Bangladesh citizenship law must be dissected, and will be discussed at length in subsequent appeals, to determine whether Begum is a Bangladeshi citizen. In addition, though Bangladeshi law itself will be discussed, previous interpretations of Bangladeshi citizenship law by the SIAC will be instructive, as the determination in Begum’s case is likely to align with these past decisions.

I. International Instruments on Citizenship

International law says relatively little about how states may formulate or implement their domestic citizenship law. The Universal Declaration of Human Rights, adopted in 1948, states that everyone is entitled to a nationality and that no one should be “arbitrarily deprived” of her nationality.[3] Several years later, the 1961 Convention on the Reduction of Statelessness, to which the UK is a state party, codified some of these principles by requiring that states grant citizenship to individuals born within their borders who would otherwise be stateless and refrain from acting in ways that would render an individual stateless.[4] As long as the UK acts within the confines of these instruments, international law does not prohibit it stripping Begum of her nationality.

II. Bangladeshi Citizenship Law & Guidance

In deciding whether the UK’s actions violate international law and its domestic law, the primary question is whether Begum would be rendered stateless as a consequence of the deprivation of her UK citizenship. The answer to this question turns on whether the laws of Bangladesh afford her Bangladeshi citizenship. Bangladesh’s 1951 Citizenship Act grants citizenship to all those born to a Bangladeshi parent.[5] Where the parent was born in Bangladesh, as in the case of Begum, citizenship passes to the child automatically at birth. The Act prohibits dual nationality, but only for those who have reached age 21.[6] Children under that age are permitted to hold multiple nationalities.

In 2008, the Bangladeshi government released an Instruction, or policy, allowing Bangladeshi citizens who acquire UK citizenship to maintain both citizenships at any age.[7] This policy acts as an exception to the general prohibition of Bangladeshi citizens holding another citizenship after the age of 21. The language of the Instruction indicates that it only applies to those born as Bangladeshi citizens who acquire UK citizenship later in life.

However, a Note Verbale, a private diplomatic correspondence from the government of Bangladesh addressed to the UK High Commission in Dhaka, explained that the Bangladeshi government’s interpretation of the Instruction differs from this understanding.[8] The Note specified that the Instruction applies retrospectively to those who naturalised in the UK before 2008, as well as to those who were born British, rather than naturalised.[9] According to this view, anyone who has Bangladeshi citizenship and British citizenship is allowed to maintain both, regardless of age and regardless of the order of acquisition of citizenships. The Note is meant to explain a practice in the application of the citizenship law and the Instruction, but this explanation seems to run counter to the plain meaning of the Instruction.

III. The UK’s Interpretation of Bangladeshi Citizenship Law

The UK’s interpretation of Bangladeshi law is paramount in determining what likely will happen in Begum’s case. In at least one case, the SIAC disregarded the Note Verbale discussed above and public statements of Bangladeshi officials, choosing to interpret the plain language of the Citizenship Act and the 2008 Instruction. In 2018, the SIAC heard an appeal of two individuals who were UK citizens from birth and were being stripped of that citizenship.[10] The individuals argued that they were no longer entitled to Bangladeshi citizenship because they were over 21 years old, and would be rendered stateless if the UK stripped them of citizenship. Upon reaching 21, they argued, they could not maintain two citizenships according to the Bangladesh Citizenship Act, and since they had remained as UK citizens, they could not also be Bangladeshi.

In this case, the SIAC examined the Instruction in light of the Citizenship Act. Given the plain meaning of the language, the SIAC determined that the individuals did not fit the exception in the Instruction, since they were born as UK nationals. Based on the Citizenship Act, the SIAC determined that they were not Bangladeshi citizens since they had reached age 21 and retained their British citizenship.[11]

The SIAC determined that the Instruction as written cannot have a retrospective effect, as the Note Verbale claimed. There are exceptions for those who naturalise as British citizens, but the SIAC determined that the Instruction does not apply to those who were born as British citizens. In addition, the SIAC dismissed the Note Verbale as not indicative of common practice and policy in Bangladesh, because it lacked thorough reasoning and the Commission could not substantiate its stated practice.

Though the Note Verbale is not necessary to examine in Begum’s case since she is still less than 21 years old, it is illustrative of the reasoning of the SIAC. This case seems to indicate that, in making a determination of Begum’s Bangladeshi citizenship, the SIAC likely will only examine the Citizenship Act and the Instruction. It likely will dismiss public statements or policies of Bangladeshi officials, even when they indicate that Begum will not be allowed to enter Bangladesh or acquire a Bangladeshi passport. If the SIAC acts in accordance with its past decisions and dismisses the words of Bangladeshi officials in favour of an application of the plain language of the laws and substantiated past practice, Begum would likely be determined not to be stateless.

From the language of the respective country’s domestic laws, it seems that Begum is a Bangladeshi citizen, and consequently the UK would be within the parameters of domestic and international law in depriving her of her UK citizenship.

IV. What about De Facto Statelessness?

Although Begum may not be de jure stateless, since the laws of Bangladesh afford her citizenship, there is reason to believe she is de facto stateless due to Bangladesh’s stated refusal to recognise her as a citizen. With Bangladeshi officials stating they will refuse her entry, and that she is not and never was a citizen,[12] there is cause for concern that the UK’s deprivation of her citizenship will render her stateless in effect. She would not have access to a passport, consular protection abroad, or a country to which she could return or settle. Without many of the rights and privileges we have come to expect to go hand in hand with citizenship, an individual is stateless in effect, even if the laws state otherwise.

In a case in 2013, the Supreme Court affirmed a decision of the SIAC in a similar case to Begum’s. A British-Vietnamese man appealed the decision of the SIAC to strip him of UK citizenship, because the Vietnamese authorities stated he was not Vietnamese and barred his entry into the country.[13]  The Court of Appeal noted that the word “stateless” in UK law refers only to de jure statelessness, and does not prohibit the UK from stripping an individual of citizenship where it would render him de facto stateless.[14] It notes that only the law and settled policy of a country should be considered when determining whether an individual is or would be stateless.

Begum, and others in her position, will not be given citizenship, a passport, or entry into a country in which to live. She will remain unprotected by any government and will remain isolated and vulnerable. She will be de facto stateless. In making grave decisions of deprivation of citizenship, states should be as concerned about creating de facto stateless persons as they are about creating de jure stateless persons. Laws must be enforced and carried out, and where states or leaders refuse to enforce those laws by their plain language, we must respond to their actions regardless of the law itself.  

V. Conclusion

The UK stripped a total of 104 people of citizenship in 2017 alone, nearly ten times the number in 2016. With an increasingly transitory population in a world where international law constrains the actions of states very little with regard to citizenship, we should be concerned about individuals who are rendered stateless, either de facto or de jure. The words and actions of states with regard to implementation of their own citizenship laws, and not only the laws themselves, ought to be given significant weight if we are to truly address the issue of statelessness.

However, as neither the laws of the UK nor international instruments make this distinction, the SIAC likely will examine only the laws of Bangladesh. In accordance with past practice, the SIAC likely will determine that the law states Begum is a Bangladeshi citizen, and, regardless of the statements or actions of officials, that the UK is legally allowed to strip Begum of her UK citizenship, since she would not be rendered de jure stateless. However, they should make a holistic determination based on laws, policies, and public statements of Bangladesh and recognise that she is in effect stateless.

[1] For background information on this case, see Vikram Dodd, Shamima Begum family challenge Javid’s citizenship decision, The Guardian (20 March 2019), available at: https://www.theguardian.com/uk-news/2019/mar/20/shamima-begum-family-challenge-sajid-javid-over-citizenship-decision.

[2] Nationality, Immigration and Asylum Act 2002 [UK] (7 November 2002), art. 40(2).

[3] Universal Declaration of Human Rights (10 December 1948), UN General Assembly resolution 217A (III), UN Doc A/RES/3/217 A, art. 15(2).

[4] Convention on the Reduction of Statelessness (13 August 1961) 989 UNTS 175, art. 1.

[5] 1951 Bangladesh Citizenship Act [Bang.] (12 April 1951), art. 3(a).

[6] Id. at art. 14.

[7] Statutory Regulatory Order (SRO) [Bang.] No. 69 Law/2008 (2008 Instruction).

[8] This Note does not exist in an English format, though it is discussed at length in: E3 and N3 v. the Secretary of State for the Home Department, (15 November 2018) Special Immigration Appeals Commission [UK] at § D.

[9] E3 and N3, supra note 8,at para. 26.

[10] Id.

[11] Id.

[12] Esther Addley & Redwan Ahmed, Shamima Begum will not be allowed here, says Bangladesh, The Guardian (20 February 2019), available at: https://www.theguardian.com/uk-news/2019/feb/20/rights-of-shamima-begums-son-not-affected-says-javid.

[13] Pham v. The Secretary of the State for the Home Department (25 March 2015) United Kingdom Supreme Court 19 [UK].

[14] Id. at paras. 33-38.