British-Bangladeshi ISIS bride Shamima Begum’s return to the United Kingdom – What does the law say?

Shamima Begum, a British-born woman who left the UK aged 15 to join Islamic State (ISIS) in Syria, dominated the headlines early last year when she announced her intention to return to the United Kingdom. The then home secretary rejected her plea and revoked her British citizenship as she is "a citizen of Bangladesh by descent", against which she has appealed.

On 16 July 2020, the British Court of Appeal partially overturned an earlier ruling by the Special Immigration Appeals Commission (SIAC) and ordered that she can return to the United Kingdom to fight for her British nationality status.

Shamima, born to parents of Bangladeshi origin, left London in 2015 as a schoolgirl with two school friends from Bethnal Green in east London and absconded to Syria via Turkey.

In Syria, she married an Islamic State fighter, Dutch-born Yago Riedijk and spent more than three years living under the rule of the brutal group in the capital of the self-declared caliphate.

She was discovered nine months pregnant, in a refugee camp in Syria early last year, after the group lost control in Raqqah.

Shortly after the UK home secretary's decision was announced her child, Jarrah died of pneumonia. She has said she had two other children while living under ISIS, but that they too died due to malnutrition.

The former UK home secretary made clear which was then maintained by the current home secretary that Shamima would face potential prosecution if she did manage to return to the UK and it did not help that she had no regrets about joining ISIS. She is aware that she will be tried on return but believes that there is more safety in a British prison, education and access to family.

The UK stripped Shamima of her British citizenship on security grounds under the domestic law that sets out the conditions under which Shamima's citizenship can be stripped.  According to the UK Nationality, Immigration and Asylum Act of 2002, a British citizen, naturalised (acquired British citizenship later in life) or citizen from birth, can be deprived of their citizenship if the Secretary of State is satisfied that "the person has done anything seriously prejudicial to the vital interests" of the UK and they would not become "stateless" as a result.

However, this cannot be done when that person has been a British citizen from birth and would be rendered stateless by this deprivation. Statelessness deprives a person amongst many rights and privileges, access to a passport, consular protection abroad, and a country to which they can return or settle.

International law lacks a holistic guideline as to how states should make and implement their domestic citizenship laws. However, the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, states that everyone is entitled to a nationality and that no one should be "arbitrarily deprived" of their nationality.

Subsequently, the Convention on the Reduction of Statelessness was adopted in 1961, to which the UK is a State party, became the leading international instrument. The instrument set out the rules that States grant citizenship to individuals born within their borders and non-withdrawal of citizenship to prevent cases of statelessness from arising. To be precise, under international norms, it is only legal to strip a person of their citizenship if they are entitled to citizenship in another country. 

Provided the UK can establish that Shamima is entitled to citizenship elsewhere following the instruments, international law does not prohibit the authorities to withdraw her citizenship.

Bangladesh has rejected the UK's claim reiterating that Shamima has never set foot in Bangladesh, nor did her or anybody from her family ever claimed her Bangladeshi citizenship. In essence, therefore it is imperative to determine whether UK's decision is deemed justified in legal terms in Bangladesh by claiming that she also holds Bangladeshi citizenship by ancestry.

Section 5 of the Bangladesh Citizenship Act 1951, a person is a citizen of Bangladesh by descent if their father or mother held Bangladeshi citizenship at the time of their birth. It goes on to say that dual nationality is not permitted, so someone with another citizenship "ceases to be a citizen of Bangladesh" if they are over 21. In this case, Shamima born to Bangladeshi parents was, and is, younger than 21.

In 2008, the Bangladeshi government introduced an exception to the general prohibition of Bangladeshi citizens holding another citizenship after the age of 21. The Bangladeshi government now allows people born as a Bangladeshi citizen who later acquire British citizenship in life to maintain both citizenships at any age. This, however, does not apply to the case of Shamima as she is born as a British citizen.

To comprehend what is likely to happen in Shamima's case, it is important to construe the UK's interpretation of the Bangladeshi laws.  As mentioned above, SIAC in interpreting the Bangladeshi citizenship laws gave the language of the laws their plain meaning.

Consequently, in stripping Shamima's British citizenship it reasoned that she had not been illegally rendered stateless by the decision because she is entitled to Bangladeshi citizenship. This indicated that SIAC is likely to dismiss public statements and/or policies of Bangladeshi officials even when they declare that Shamima will not be allowed to enter Bangladesh or obtain a Bangladeshi passport and only follow the Bangladeshi Citizenship Act.

Interestingly, out of the three preliminary findings issued by SIAC, it is ruling on the first has been kept intact by the British Court of Appeal - the loss of British citizenship does not render Shamima stateless as she is entitled to Bangladeshi nationality through her Bangladeshi-born parents.

Moreover, Shamima did not challenge the finding on statelessness, so SIAC's finding that she is a Bangladeshi citizen stands unchallenged. Concerning the second and third findings, namely, a human rights challenge to the deprivation of citizenship decision and a challenge to have an effective or fair appeal in her current circumstances - SIAC was found to have erred.

The UK government policy not to remove citizenship if this gives rise to a real risk of mistreatment contrary to European Convention of Human Rights (ECHR), Article 2 (right to life) or Article 3 (prohibition of torture) were addressed and it was accepted that conditions in the Syrian camp were deplorable and met the threshold of inhuman or degrading treatment within the meaning of Article 3 ECHR.

However, it didn't adequately consider the risks associated with Shamima's possible transfer to a third country, notably Bangladesh considering Bangladesh has a "zero-tolerance policy" for terrorism and she could face death penalty according to the local law. Moreover, relocation to Iraq or Syria would put her at a real risk of death or suffering other human rights abuses.

Whether or not she will be allowed to enter the Netherlands with her Dutch husband depends on whether the Dutch authorities allow him entry and provided she still has a genuine and subsisting marriage.

Three judges from the Court of Appeal unanimously agreed that Shamima could have a fair and effective appeal of that decision only if she were permitted to come back to the UK. Concluding, Lord Justice Flaux said, "Fairness and justice must, on the facts of this case, outweigh the national security concerns." The ruling essentially means Shamima can now apply to enter the UK and could play a meaningful part in her appeal, and that, to that extent, the appeal will be "fair and effective".

The ruling that Shamima is entitled to return to the United Kingdom to appeal the decision on her citizenship does not mean that she can enter the UK and will be successful in having her citizenship restored. Shamima's prospect of a return to the UK also depends on whether the UK Home Office is planning its application for permission to appeal to the UK Supreme Court and it has 28 days to make this application to the Court of Appeal. If unsuccessful, she can make a further application directly to the Supreme Court.

As long as these applications for permission to appeal continue, she will not be granted permission to enter the UK. It may take very long until it is decided whether or not she will be permitted to return to the UK to participate in her appeal. She will then require either a passport or travel documents to travel which she does not have at this point. She can apply for a Uniform Format Form (UFF) travel document from the Kurdish authorities, acquiring which in practice may prove challenging.

If she is permitted to enter the UK, she will be allowed to stand trial in her home country. Her case will then be reviewed by SIAC that initially ruled that removing her citizenship was lawful. She would have to persuade SIAC that she is not a national security risk, or that the human rights arguments against her are made out. As mentioned above, Shamima has not challenged the finding that she has Bangladeshi citizenship or is entitled to it. That leaves her without a statelessness argument when it comes to citizenship deprivation and may support the UK government's deprivation decision.

Although Bangladeshi ministers have made clear that they would not accept her, from the language of the Bangladeshi citizenship laws, it seems that Shamima is a Bangladeshi citizen. However, if she is deprived of her British citizenship and the Bangladeshi officials refuse to recognize her as a citizen, she will "in effect" be rendered stateless. It cannot yet be predicted whether the Bangladesh Supreme Court would rule in favour of the government or overrule such a decision if such an event takes place.

Governments in countries including the UK and Europe have refused to allow its citizens with a history of ISIS-links back into the country. It is believed that trying ISIS-linked cases at home could result in acquittals or minimal sentences, because of the challenge of gathering evidence. Authorities have struggled to devise a comprehensive policy for ISIS returnees and their families. They have often been criticised citing appalling conditions in refugee detention camps, and a right to be given a fair trial at home. In the past few years, very reluctantly, these states have allowed some children and families into the country on a case-by-case basis.

Shamima's return to the UK for the citizenship appeal could, in reality, pave the way for her to remain in the country indefinitely. Nevertheless, denying her entry to the UK will essentially mean she will not be given a passport or entry into a country to settle. She will remain isolated, vulnerable and exposed to inhuman and degrading treatment.

Depriving her of citizenship does not make the UK any safer. It may, however, further aggravate the already torrid racial tensions. As a British citizen, she deserves a fair trial and sentencing in Britain. To deprive her of her British citizenship and say she is a Bangladeshi citizen based on her parent's lineage is unreasonable. She was born and raised in the UK and was groomed in the UK. Whether or not she is a worthy citizen of the UK, she is a British citizen and the state owes her rights and responsibilities as it does to its other citizens. 

Shamima's case further highlights the pattern of "otherness" targeting certain UK citizens and sets a dangerous precedent for second-generation immigrants which spells out to say that one is not British unless they are 'white'.

While international law does not provide much direction concerning a State's citizenship laws, there is cause for concern when an individual is rendered stateless by actions of the States. Apart from laws which ought to be interpreted in plain language, statements or actions by State officials should also be considered. SIAC should, therefore, realise that on examining both laws and statements by Bangladesh officials, as a whole it can be construed that Shamima's deprivation of British citizenship will in effect leave her stateless.  

Barrister Fahmida Hasan is a practicing lawyer in the UK specialising in Immigration, Asylum and Human Rights laws. She can be contacted at [email protected]