Shamima Begum: judgment of the Special Immigration Appeals’ Commission

Mon, 10 Feb 2020

© Alison Harvey

If Shamima Begum is not a national of Bangladesh, the Secretary of State cannot deprive her of her British citizenship.

The UK has ratified the UN Convention on the Prevention and Reduction of Statelessness 1961, which barred States parties from taking new powers to make people stateless on the grounds of their character or conduct.  It did, however, allow States to retain their existing powers to make people stateless on these grounds. This the UK opted to do.

At that time, UK powers were to deprive persons of their citizenship, whether it made them stateless or not, only extended to those who had naturalised as British citizens as adults, not to those, such as Ms Begum, who were born British.  The UK took powers in 2002 to deprive the British born of their citizenship, but the bar on leaving them stateless remained. See further my article in Journal of Immigration, Asylum and nationality law, the official journal of the Immigration Law Practitioners’ Association, on this topic.

Whether Ms Begum was a national of Bangladesh is a matter for the courts of Bangladesh, and thus a matter of fact to be determined by expert evidence in the UK courts. The Special Immigration Appeals Commission in Shamima Begum v Secretary of State for the Home Department SC/163/2019 heard from two experts.

The Secretary of State’s expert was Dr Hoque.  The expert for Ms Begum gave evidence anonymously.  We are only told that this was “because of fears of what might happen if they could be identified as having given evidence in this case” (paragraph 6). This is sobering.  The expert was a lawyer, giving evidence on the law. We do not know whether it is the expert’s criticisms of the government of Bangladesh’s respect for the rule of law, or the association with Ms Begum that put them at risk, but either is a reminder of the risks lawyers run in so many parts of the world, just to do their jobs.

The Special Immigration Appeals Commission concluded that Bangladesh, a country that generally sets its face against dual nationality, permits dual nationality up to the age of 21.  Ms Begum is 20 and has thus not reached the age where her possession of British citizenship would result in automatic loss of her Bangladeshi citizenship. Students of statelessness law will be fascinated to read in the judgment how the citizenship laws of Bangladesh have been framed and interpreted in respect of the Bihari (see paragraphs 101, 110), and the Rohingya (paragraph 105).  Members of the public should bear in mind that this is only the UK court’s interpretation and that their application s for recognition of their Bangladeshi citizenship will be determined by the Bangladesh government and courts.

Having determined that the letter of the law of Bangladesh meant that Ms Begum was a citizens of that country, the Commission went on to consider whether she would be stateless within the meaning of Article 1 of the 1954 UN Convention on the stateless of stateless persons, the internationally accepted definition: “a person who is not considered as a national by any State under the operation of its law”

This is an area in which UK law has become horribly confused since the judgment of the UK Court of appeal and then Supreme Court in Pham v Secretary of State [2014] UKSC 19 , about which I have written most recently in my blog for the European Network on Statelessness, of which I am an associate member. 

 Tom Hickman QC for Ms Begum made the lucid and in my view,  correct arguments, first that the comment on the meaning of “by operating of its law” in Pham  are obiter (see paragraph 127 of the judgment) and secondly that a person who would not be recognised as national by the courts of her county because of pressure brought to bear on those courts by their government would be stateless (paragraph 124 of the judgment).  Stateless as a matter of law, within the meaning of Article 1 of the 1954 Convention.  He eschewed the discredited language of “de facto statelessness” best translated into lay language as “not really stateless”.

The Commission rejected Mr Hickman’s argument, but it did so primarily on the basis that there was no evidence that Ms Begum would not be recognised as national by the courts or government of her country (paragraph 125).  Nonetheless, it arguably perpetuates the muddle in Pham about whether a person who is arbitrarily and contrary to the law of their country, not recognised as a national, is stateless.  As I argue in my blog, it is to be hoped that the case, also concerning Bangladesh, of Secretary of State for the Home Department v E3 & Anor [2019] EWCA Civ 2020 will go to the Supreme Court and that the Supreme Court will sort out this muddle, and do so in a protective fashion.

The Commission also held that the decision died not breach the Secretary of State’s extra-territorial human rights policy by exposing Ms Begum to a risk of death or inhuman and degrading treatment.  There was powerful evidence before the Commission of the appalling situation in the Al Roj camp.  But, held the Commission, the decision to deprive Ms Begum of her citizenship was not what created the risks to her in the camp: they would be the same f she were still British. British or not, she could not get out of Al Roj and the Secretary of State was not required to speculate on future developments, including her rendition to a third state (paragraph 139). 

Paragraph 139 describes Ms Begum as in Al Roj “because of her own choices, and of the actions of others, but not because of anything the Secretary of State had done”. Whatever the merits of the comment about he Secretary of State, this comment pays scant regard to Ms Begum having been a child and having been groomed when she left the UK to join Daesh (see further paragraph 144 where it was submitted on behalf of the Secretary of State that Ms Begum left the UK “apparently of her own free will”).

Finally, the Commission turned to whether Ms Begum could have an effective appeal, given that she is outside the UK, in Al Roj camp.  The Commission accepted that Ms Begum could play no meaningful role in her appeal (paragraph 143). But, it held, she could not succeed in her appeal for that reason.  The Commission held that there was no universal rule that every appeal against deprivation of citizenship has to be effective (paragraph 145).  That parliament should knowingly grant a right of appeal which is not effective, a right to an appeal the outcome of which will not be fair, is as surprising as it is troubling a conclusion.

Ms Begum is 20.  If the deprivation of her British citizenship is held to stand then, possessing only Bangladeshi nationality, she will not lose that nationality on turning 21. Because deprivation of citizenship now takes place when the order is made, not at the conclusion of the appellate process, there is no race against the clock in this case as there was in the earlier case of Australian and British Guantanamo Bay detainee David Hicks: Secretary of State for the Home Department v Hicks [2006] EWCA Civ 400.


Alison Harvey is a barrister at No5 Barristers’ chambers, based in London, who practices in immigration law, public law and international human rights’ law.  She is an associate member of the European Network on Statelessness. She accepts instructions in deprivation of citizenship and statelessness cases and associated matters, such as unlawful detention cases. She writes and lectures widely on deprivation of citizenship and gave a paper on deprivation of citizenship in plenary at the first Global Forum on stateless, hosted by UNHCR and Tilburg University, in 2014. She is a contributor to Fransman’s British Nationality Law.  She chaired a panel on national security and stateless at the World Conference on Statelessness in 2019.  She is a speaker at the Immigration Law Practitioners’ Association first conference on nationality law on 6 May 2020.


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