On 26 February 2021, the UK Supreme Court passed down its judgment, unanimously ruling in favour of the UK Home Secretary’s appeal to refuse Shamima Begum entry to the UK to challenge the deprivation of her citizenship.
BACKGROUND OF CASE
Shamima left the UK as a 15-year-old schoolgirl to travel to Syria and marry an ISIS fighter. In February 2019, the then UK Home Secretary Sajid Javid made an order to deprive Shamima of her British citizenship. The Home Secretary argued that her British citizenship should be revoked because it was conducive to the public good.
In July 2020, the Court of Appeal ordered that Shamima be granted leave to enter the UK so she can participate in her deprivation of citizenship appeal. The Court held that the “only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal”.
However, the Supreme Court unanimously overturned the Court of Appeal’s decision and they held that Shamima cannot return to the UK to appeal against her deprivation of citizenship. The Supreme Court stated that the Court of Appeal mistakenly believed that, when an individual’s right to have a fair hearing conflicts with national security, the right to a fair hearing must prevail. In the eyes of the Supreme Court, national security risk trumps Shamima’s right to a fair hearing.
ACCESS TO JUSTICE AND THE NATIONAL SECURITY DICHOTOMY
The right to a fair trial is a fundamental right, enshrined in article 6 of the European Convention on Human Rights. The Supreme Court is the final court of appeal in the UK and it hears appeals on arguable points of law of the greatest public importance.
The Supreme Court criticising the Court of Appeal for not giving “the Home Secretary’s assessment the respect which it should have received” is unusual. The judiciary, particularly the highest court of law ought to stand as a robust safety net that enables the citizenry to access justice, not to appease or give “respect” to the Home Secretary’s assessment without challenge.
Depriving an individual’s citizenship is arguably the most severe punishment that a Home Secretary has in their repertoire. The Court of Appeal recognised that, despite what one may think of Shamima’s actions, she should have the right to challenge the deprivation of her citizenship. The old adage should ring true—the rule of law applies to everyone, regardless of the crimes committed or the opinions they may hold, and everybody has the right to have their case heard. However, the Supreme Court disagreed.
The Supreme Court strongly criticised the Court of Appeal for stepping in and assessing national security for itself: it “appears to have overlooked the limitations to its competence, both institutional and constitutional, to decide questions of national security”. The Supreme Court confirmed in their judgment that matters of national security are reserved for the executive, not the judiciary.
Thus, when an individual’s rights are curtailed because of “national security,” one must ask: how can the decision be effectively challenged? There is a clear dichotomy between one’s access to justice and the state’s decisions on national security. Though, the Supreme Court makes it clear, when such a conflict arises, the executive may have unfettered power.
“BRITISHNESS” AND DE FACTO STATELESSNESS
Shamima was born on 25 August 1999 in the UK, and automatically attained British citizenship at birth pursuant to section 1(1) of the British Nationality Act (BNA) 1981 as her Bangladeshi parents were settled in the UK. Though in 2019, Shamima’s citizenship was deprived by the power at section 40(2) of the BNA 1981 which states “the Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.” However, a key provision is found in section 40(4) of the same Act which states “the Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless”.
The right to a nationality is a fundamental human right, and so rendering an individual stateless contravenes international law. The 1954 Convention relating to the Status of Stateless Persons defines “stateless person” as a person who is not considered as a national by any State under the operation of its law.
The Home Secretary, when depriving Shamima’s citizenship in 2019, stated that Shamima was a “British/Bangladeshi dual national” and so he is “satisfied that such an order will not make [her] stateless.” However, Bangladesh’s ministry of foreign affairs has said that the government was "deeply concerned" she had been "erroneously identified" as a Bangladeshi national.
The Bangladeshi authorities have stated unequivocally that Shamima is not a Bangladeshi citizen and there is "no question" of her being allowed into the country. Practically speaking, Shamima is de facto stateless. Shamima is not a British citizen nor is she a Bangladeshi citizen—she has no consular support from the Bangladeshi authorities nor can she avail herself to the protection of the country.
The stark reality is, British nationals born in the UK with immigrant parents have inherently less protection in respect to their British citizenship compared to other British nationals. The power to deprive British nationals of their citizenship is only possible against the children of immigrant parents. This intrinsically discriminatory policy is problematic when considering that one’s right to effectively challenge the deprivation of their citizenship can be superseded outright if the Home Secretary alleges national security concerns.
The call for Shamima to be brought back to the UK to effectively challenge the deprivation of citizenship should not be misconstrued as an endorsement or acceptance of her actions. Rather, it is a call that the right to a fair trial is integral to any democracy and limiting that right sets a dangerous precedent.
The next steps in Shamima’s case are rather limited. Her instructed lawyers can try proceeding with her appeal challenging the deprivation of her citizenship or wait until she can participate effectively abroad.
Zaki has a background in human rights law and international protection. He has worked in different international organisations and law firms in the UK and in the Middle East. Currently, he works in refugee law and policy in London.