Consider these three propositions. First, that a person should not be rendered stateless: every person is entitled to be a citizen of somewhere. Second, that Shamima Begum, a former British citizen, is stateless. And third, that the statelessness of Shamima Begum is a direct and natural consequence of an order by a home secretary of the United Kingdom.
How can these three propositions all be true? Even the relevant legislation expressly states that the home secretary may not make an order to deprive a person of their British citizenship if they are “satisfied that the order would make a person stateless”. And yet Begum remains detained in a refugee camp in Syria, without the rights and privileges of citizenship of the United Kingdom or elsewhere.
The answer to this conundrum, at least according to the courts, is that although the effect of the order of the home secretary was to render Begum stateless, there was the technical possibility that she could take up citizenship of Bangladesh—even though there was no realistic prospect of her being accepted into the country. She did not actually have a Bangladeshi passport and she had never been there, but because her parents came from Bangladesh she was entitled to citizenship of her parents’ country.
Well, she was so entitled for a short while. The order was made in 2019, when she was 19. But under Bangladeshi citizenship law, the entitlement to take one’s parents’ nationality expired when she became 21. The home secretary thereby could not, at law, make the same order now that Begum is an adult. But the home secretary at the time—Sajid Javid—was able to do so because he was dealing with a mere teenager.
The ability to deprive a person of their British citizenship is an immense power of the British state. And the power is framed by statute in wide legal terms. The home secretary may by order deprive a person of citizenship if he or she “is satisfied that deprivation is conducive to the public good.”
The courts will defer to the minister as to what constitutes being “conducive to the public good.” The courts can only readily intervene if a relevant consideration has been completely ignored or an irrelevant consideration has been determinative. But if the minister can show that they were aware of the relevant facts and issues then their decision is pretty much impregnable. Under the law, it is a decision of the home secretary.
The ability to deprive a person of their British citizenship is an immense power of the British state
The recent Court of Appeal judgment upholding the deprivation order in the Begum case shows how difficult it is to attack the fairness or rationality of a home secretary’s decision. Challenges were made on the basis of the common law, and on the basis of the European Convention on Human Rights, and on the basis of equalities law.
Each of these challenges failed. The court said: “It could be argued that the decision in Ms Begum’s case was harsh; it could also be argued that Ms Begum is the author of her own misfortune. But it is not for this court to agree or disagree with either point of view. Our only task is to rule on whether the decision… was unlawful.”
The implications of this draconian deprivation power are stark. For example, Jewish people are entitled to Israeli citizenship under the country’s Law of Return, and those with at least one grandparent born in Ireland can become Irish citizens. A home secretary could thereby deprive a person of their British citizenship if they were satisfied that they would still be entitled to become a citizen of Israel or Ireland or somewhere else. As the United Kingdom is a multicultural nation with many first- and second-generation immigrants, the implications of such a power are chilling.
And this executive power is even more worrying when it can render somebody stateless. This is not just a concern of liberal pundits. As the former Supreme Court judge Jonathan Sumption, perhaps Britain’s least woke legal commentator, explains:
“When the decision was made, in 2019, Ms Begum was 19. She was a citizen of Bangladesh, but only in the most technical sense. She had provisional citizenship until she was 21, when it would lapse unless she took it up. This was because her parents were born there. But she has never been to Bangladesh. She has no links with the country. And Bangladesh has disowned her. Her Bangladeshi citizenship always was a legal fiction. Today, it is not even that. She is 23. As a result of the home secretary’s decision, she is stuck in a camp in Syria, with no citizenship anywhere and no prospect of one. Children who make a terrible mistake are surely redeemable. But statelessness is for ever.”
Other conservatives agree. Jacob Rees-Mogg set out in the Spectator why he believed Begum should not have lost her British citizenship. The raw and severe nature of this use of executive power is such that both liberal and conservative constitutionalists concur: this is a wrong and it is a wrong that should be rectified.
The Begum case may now go to the Supreme Court for a decision on the substantive issue of statelessness. The judges may then, like the courts below, nod along with the government’s decision while noting their concern. Or the justices may tackle this apparent abuse of power head-on and rule that it is not open to a home secretary to render a person stateless by reference to theoretical possibilities of citizenship elsewhere. The Supreme Court was similarly bold with a wide ministerial discretion that affected fundamental rights in the Rwanda removals case last year.
Why is the government persisting with contesting this case? There are three possibilities. First, because it is worried about the political consequences of a decision to drop it. A second possibility is that there is information not in the public domain, but which has been considered by the court on a “closed” basis, which warrants this extreme order. What tells against this, however, is that the courts have been plain that they are not depending on any non-public information in upholding the deprivation order.
But the most plausible explanation (from the perspective of this former government lawyer) is that, although this is not a case the government would choose to litigate, the stakes are now too high for the government not to contest the claims of Shamima Begum.
For the ability to deprive a person of citizenship is an immense power—and it is one which the government really does not want to have judicially limited. And this would explain why the government instructed not one, not two, but three KCs to oppose Begum’s case in court. Ministers and officials, and their lawyers, may well wish that Sajid Javid had not made this particular decision, but they are now stuck.
And, of course, Shamima Begum is also stuck, though in a very different way. It is hard to believe that, if she returned, whatever threat she posed could not be managed: the United Kingdom currently hosts, for example, war criminals such as the former Liberian president Charles Taylor and the former Bosnian Serb president Radovan Karadžić, and it was able to contain Abu Hamza before his extradition. Presumably Begum would be no greater threat on British soil.
The British state has a formidable array of legal powers to contain known individuals, many of which can be exercised with no need for any criminal conviction. Those are the control powers on which the government should be relying, rather than rendering a British citizen stateless on the basis of a legal fiction.
