The Case of Shamima Begum - A Case About Legal Interpretation, Not Ethics
The case of Shamima Begum has been surrounded by an ethical debate. Aged 15, she left the UK of her own will after being radicalised by ISIS. She then joined the terrorist organisation and was discovered in a Syrian refugee camp in 2019. She gave birth to a child in that camp, but the child died before the legal fight over whether or not the Home Secretary had been entitled to strip her of her UK citizenship had concluded. Since under Bangladeshi law, Begum (B) would be entitled to Bangladeshi citizenship through her mother, the Special Immigration Appeals Commission (SIAC), a court dealing with issues of national security, held that the Home Secretary’s decision did not violate the obligation not to leave B stateless. This ruling was made despite the February 2019 statement of the Bangladeshi Ministry of Foreign Affairs that B is not a Bangladeshi citizen and would not even be allowed into the country.
The case raises a bundle of social, cultural and ethical issues. The fact that she left the UK at age 15, so as a young and impressionable child, is often seen as one element that should have influenced the Home Secretary more towards not denying her citizenship (see for example Kapoor, The Guardian, 11/02/2020). Others have argued that the decision was politicised, influenced not merely by her joining of a terrorist organisation but also by B’s early interview in which she seemed to show little compassion. Kapoor argues that “the foolish utterances of a teenager […] are not enough reason to deprive her of […] citizenship” (Kapoor, The Guardian, 11/02/2020).
And what is the message to minorities within Britain? Khan argues that this case is a message to minorities in the UK that they are not seen as fully British (Khan, The Guardian, 07/02/2020). Are they seen as second-class citizens?
But all these arguments seem to somehow assume that law is a moral affair. The law can be judged by our morals and values and we may dislike it, but its decisions are certainly not up for moral review in courtrooms. Moral arguments that argue that the law as it is when applied is unjust should be heard in the halls of Parliament so that the law can be changed. Moral arguments are only appropriate in a courtroom when the law itself lays down a moral test. It is not for the courts to change the law. They are primarily adjudicators of the law, not makers of it.
But was there a way out for the court? Were there legal reasons for not allowing the Home Secretary to exercise his power to strip B of her UK citizenship? Yes.
The courts took a legalist approach which ignored the reality outside its courtroom. Confined to sources of statute and common law, the courts concluded that all the necessary legal elements were given:
s. 40(2) of the British Nationality Act 1981 gives the Home Secretary the power to deprive B of her citizenship
Under international law, an exercise of this power should not to leave B stateless (see 1954 Convention relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness). The UK incorporated its international obligation into domestic law through s. 40(4) of the British Nationality Act 1981. The obligation is therefore part of English law and cannot be avoided.
It is therefore no longer enough to just look to s. 40(2) of the British Nationality Act 1981. The court also needs to find that B would not be left stateless. The court looked at Bangladeshi law under which B would be eligible for citizenship due to her mother. The court therefore concluded that the Home Secretary’s decision was legal.
When one leaves out the fact that Bangladesh clearly stated that they did not regard B as a citizen and would even refuse to let her into the country, the decision seems clear-cut. The court’s decision highlights an issue of interpretation: what defines statelessness? De facto statelessness or de jure statelessness? SIAC was aware of the issue and directly addressed it by referencing Pham v Secretary of State for the Home Department. The case concerned a similar issue as that of B: National laws indicated de jure citizenship, but there was concern over whether or not the state practice would live up to that. However, the potential dichotomy between the de jure and de facto scenario did not prevent the judges from sticking with a legalist approach and merely considering the de jure side:
“If the relevant facts are known, and on the basis of those facts and the expert evidence it is clear that under the law of a foreign state an individual is a national of that state, then he is not de jure stateless. If the Government of the foreign state chooses to act contrary to its own law, it may render the individual de facto stateless. Our own courts, however, must respect the rule of law and cannot characterise the individual as de jure stateless.” (Jackson LJ in Pham)
As morally appealing as the invocation of the rule of law may be, it does little to fighting for an individual who is nonetheless rendered de facto stateless.
The Office of the UN High Commissioner for Refugees states the following on international law’s definition of statelessness:
“The 1954 Convention relating to the Status of Stateless Persons […] defines a ‘stateless person’ as a person who is ‘not considered as a national by any State under the operation of its law,’ and is thus someone without any nationality or citizenship anywhere. This definition is considered to have achieved the status of customary international law.’ (Submission by Office of UN High Commissioner for Refugees in Bedri HOTI. v. Crotia, p. 1f)
English court shave accepted that the 1954 definition embodies what domestic statute law means with its s. 40(4) provision (Pham v Secretary of State for the Home Department). Prima facie, the law seems to be on the side of the Home Secretary here. “Under the operation of its law” can certainly be used to justify SIAC’s legalist approach. But there is an argument to be made that the opposite is true:
The word “operation” implies practice. It is not merely about what is written down in the statute books, but how it is applied. Whether or not B is eligible for Bangladeshi citizenship according to Bangladeshi law did not change the fact that the Bangladeshi authorities announced that they did not regard her as a citizen and would not even let her enter Bangladesh. Therefore, under the operation of Bangladeshi law, B would become de facto stateless if the Home Secretary’s decision were to be upheld. The court found B not de jure stateless, but avoided engaging much with B’s potential de jure statelessness by referring to the reasoning in Pham. The court considered the reasoning in Pham at least highly persuasive, if not binding.
But would it be a stretch of the words of the 1954 definition to argue that B is stateless according to that definition by being de facto stateless? Hardly. And even if it were, the courts have made much bigger interpretational jumps. One only needs to skim through Anisminic Ltd v Foreign Compensation Commission, Ghaidan v Godin-Mendoza and many more cases to conclude that it is certainly not outside the English courts’ ability and (occasional) willingness to interpret something differently.
The case of Shamima Begum is therefore actually a case about legal interpretation. The ethical debate surrounding it should, instead of so often only focusing on her background and young age without tying it to the legal arguments, have asked whether he courts’ willingness to adopt a different (and here, wider) interpretation only extends to non-minority persons not accused of being terrorists. Why was this interpretation not taken? The wording clearly permits it and it is hard to see how it does not encourage a wider interpretation. Such a debate would be a stronger and more informed one than the one which merely focuses on the moral side of a legal decision. None of this is an excuse for Begum’s actions nor is it a defence of her character, but there is reason to believe that her legal claim had more legal merit than the mere focus on ethics and politics makes it seem. The debate about the legal case should be reframed to consider the legal side more and not only look at the morality of the decision itself.
Aina Khan, “Shamima Begum is a Product of Britain. She Should Face Justice Here,” The Guardian, 07/02/2020): https://www.theguardian.com/commentisfree/2020/feb/07/shamima-begum-britain-british-ethnic-minorities
Anish Kapoor, “This Government has Failed Shamima Begum,” The Guardian, 11/02/2020): https://www.theguardian.com/uk-news/2020/feb/11/this-government-has-failed-shamima-begum#maincontent
“Shamima Begum: IS Teenager to Lose UK Citizenship,” BBC (20/02/2019): https://www.bbc.com/news/uk-47299907
“Shamima Begum Loses First Stage of Appeal over Citizenship,” BBC (07/02/2020): https://www.bbc.com/news/uk-51413040
British Nationality Act 1981
1954 Convention relating to the Status of Stateless Persons
1961 Convention on the Reduction of Statelessness
2006 Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession
Shamima Begum (Preliminary Issue: Substansive) UKSIAC SC_163_2019
Pham v Secretary of State for the Home Department  UKSC 42
Anisminic Ltd v Foreign Compensation Commission  2 AC 147,  2 WLR 163
Ghaidan v Godin-Mendoza  UKHL 30
Council of Europe Convention on the avoidance of statelessness in relation to State succession - Explanatory Report -  (19 May 2006), para. 1, http://conventions.coe.int/Treaty/EN/Reports/Html/200.htm.
Submission by the Office of the UN High Commissioner for Refugees in the Case of Bedri HOTI. v. Croatia (Application No. 63311/14): https://www.refworld.org/pdfid/560a2cdb4.pdf