Shamima Begum and the Right to Enter One’s Own Country

Siddharth S Aatreya is an Advocate (India) and Future Trainee Solicitor at the London office of Cleary Gottlieb Steen & Hamilton LLP. All opinions expressed here are strictly personal.

Shamima Begum was born a British citizen in Britain. At the age of 15, she left Britain for Syria, where she joined the ISIL. She subsequently married an ISIL fighter in Syria and gave birth to three children, all of whom are no more. Following the defeat of ISIL and the recapture of ISIL-held territory, Ms. Begum was moved to the al-Roj Detention Camp, under the control of the Syrian Democratic Forces, where she remains to date.

Following concerns surrounding the national security threat posed by Ms. Begum, the UK Home Secretary (then the Rt. Hon. Sajid Javid MP) informed her on 19 February 2019 that he intended to deprive her of her British citizenship under the British Nationality Act 1981, on the grounds that it would be conducive to the public good to do so. This was possible because, in the Home Secretary’s opinion, Ms. Begum would not be rendered stateless if deprived of her British citizenship since she was eligible for Bangladeshi citizenship, owing to the fact that her parents were born in Bangladesh (dealt with in more detail below). Following this, Ms. Begum sought permission from the Home Secretary to re-enter the UK to pursue a judicial challenge to his decision to deprive her of her British citizenship – while her first instance judicial challenge to the deprivation decision has been rejected, appellate remedies (including a potential appeal to the UK Supreme Court) still remain open to her. Despite this, her application for Leave to Enter (LTE) was rejected. A series of judicial proceedings ensued, which culminated in the UK Supreme Court’s decision in R (on the Application of Begum) v. Special Immigration Appeals Commission on 26 February 2021.

Among other crucial holdings, the UK Supreme Court effectively upheld the Home Secretary’s decision to deny Ms. Begum leave to enter the UK to pursue a judicial challenge to the decision to deprive her of British citizenship. The Court acknowledged (at para 135) that in doing so, it was interfering with her ability to fairly and effectively pursue the appellate judicial recourse available to her to challenge the Home Secretary’s deprivation decision. It offered little by way of reconciliation, observing that there is “no perfect solution” to this problem and that Ms. Begum’s appeal should be stayed until she was able to participate in it in a fair manner from outside the UK.

The Home Secretary’s decision in this case relied, in part, on the assertion that the ECHR had no applicability to Ms. Begum and that, in any case, denying her LTE would not result in her ECHR rights being violated. Reactions to the judgment have questioned this and considered whether Ms. Begum can and should make an application to the European Court of Human Rights in Strasbourg to challenge the UK Government’s LTE and deprivation decisions. In this post, however, I will argue that while the merits of the Home Secretary’s deprivation decision are questionable under international law, depriving Ms. Begum of her right to re-enter the UK to pursue her appeal in and of itself likely amounts to a violation of Art. 12(4) of the International Covenant on Civil and Political Rights (ICCPR).

Importantly, while the UK has signed and ratified the ICCPR, it has not signed the First Optional Protocol to the ICCPR. Consequently, the UK remains fully bound by the ICCPR under international law, but no direct complaints can be made to the UN Human Rights Committee against it alleging violations of individuals’ ICCPR rights. While this means that Ms. Begum cannot make a direct complaint against the UK on the grounds mentioned below, I would argue that considering the UK’s treatment of Ms. Begum in terms of its status as “her own country” under Art. 12(4) of the ICCPR is important because it exposes the unique vulnerability of second and even third-generation immigrant citizens’ status around the world.

Art. 12(4) ICCPR, Art. 15 UDHR and “One’s Own Country”

 Art. 12 of the ICCPR provides for a general freedom of movement. Art. 12(4) specifically provides that no one shall be arbitrarily deprived of the right to enter “his own country”. In this context, General Comment No. 27 to Art. 12 provides that the scope of “his own country” is broader than the concept of “country of his nationality”. This means that whether a country is “one’s own” is not determined based on whether they are a national/citizen of such country, but whether owing to their special ties (social, economic, cultural, familial etc.) to that country, it can be considered to be their own as a matter of fact.

Judged against this standard, the UK plainly continues to be Ms. Begum’s “own” country. While the continued operation of the Home Secretary’s deprivation decision (in the absence of any judicial interference with it yet) means that she has, as a matter of British law, ceased to be a British citizen, the fact that she was born in, grew up in and has her immediate family in Britain means that she has close social, economic and familial ties with Britain and it must be considered to be “her own”. In fact, by this standard, Bangladesh cannot be considered Ms. Begum’s “own” country, since she has never been there, doesn’t speak Bengali (the language predominantly spoken there) and has no established social or economic ties there. Thus, while Ms. Begum was, arguably, eligible for Bangladeshi citizenship on 19 February 2019 (when her British citizenship was revoked), this analysis would mean that for the purposes of Art. 12(4) of the ICCPR, her close ties to the UK would entitle her to enter the UK as it was her “own” country, regardless of her status as a Bangladeshi citizen or otherwise.

Interpretations of Art. 12(4) by the UN Human Rights Committee would strengthen this conclusion. In Stewart v Canada, the Human Rights Committee explicitly observed that those “stripped of their nationality in violation of international law”  (at Para 12.4) would continue to fall under the category of “one’s own country” owing to their enduring special ties with their country of origin. If the Home Secretary’s deprivation decision is considered to amount to a violation of international law, Stewart could mean that the UK remains obligated to let her re-enter under Art. 12(4). This is a distinct possibility under Art. 15 of the Universal Declaration of Human Rights (UDHR), which gives every individual a right to a nationality and protection against arbitrary deprivation of their nationality. This means that States are not entitled to render anyone stateless by stripping them of their citizenship – a requirement included in Sec. 40(4) of the British Nationality Act 1981 too. In Ms. Begum’s case, the deprivation decision arguably leaves her effectively stateless, as she was not a dual British-Bangladeshi citizen at the time of deprivation. The Bangladesh government has also stated that she is not eligible for Bangladeshi citizenship in their view and that they would not allow her into Bangladesh even if she is unable to return to the UK and is rendered effectively stateless.

In this context, I would argue that at the very least, until a final judicial determination is made (after all appellate remedies are exhausted) of whether the Home Secretary’s deprivation decision is legal under British law, the above observations from Stewart suggest that the UK should let Ms. Begum re-enter under Art. 12(4). This is particularly true for two reasons. First, the appellate remedies still available to Ms. Begum mean that it remains entirely possible that the British courts will restore Ms. Begum’s British citizenship. If that does eventually happen, it is plainly obvious that her present inability to enter the UK following the UKSC’s decision (until her citizenship is restored) would amount to a violation of Art. 12(4). Second, as suggested above, Art. 15 of the UDHR gives Ms. Begum a right against arbitrary deprivation of her nationality/citizenship. As the UKSC itself observed, its decision makes it impossible for Ms. Begum to meaningfully participate in appellate judicial proceedings concerning her British citizenship. As a result, her deprivation of British citizenship without any meaningful judicial recourse against it will continue indefinitely, until a workable solution can be found to enable her to participate in proceedings concerning her British citizenship. In my submission, this itself amounts to an arbitrary deprivation of Ms. Begum’s citizenship and is a continuing violation of Art. 15 of the UDHR on the UK’s part.

The above conclusion is strengthened by the considerations (such family ties and a person’s duration of residence in a country) that have led the HRC to apply Art. 12(4) to individuals in subsequent decisions (see Nystorm v Australia and Warsame v Canada). Other interpretations of Art. 12(4) also point to the importance of a country facilitating the re-entry of its citizens who have travelled abroad – specific concerns have been raised, for instance, in the context of the Syrian Government’s failure to issue passports to some Syrian citizens abroad, effectively barring them from re-entering Syria (see Concluding Observations of the Human Rights Committee on the Syrian Arab Republic).

Admittedly, a delicate balance has to be struck here. In Nystorm itself, the HRC observed that giving an overbroad scope to Art. 12(4) would unfairly curtail States’ rights to remove offenders and those posing security/public order risks from their territory and impede upon their sovereignty as a result. In that light, I have to concede that following the conclusion of all judicial (and appellate) processes, if the Home Secretary’s deprivation decision is upheld and Ms. Begum is stripped of her British citizenship, the UK Government would be entitled to remove her from the UK permanently, subject to the important question of whether this would render her stateless based on Bangladesh’s position on accepting her. The same cannot be said, however, of barring her entry into the UK while the question of the deprivation of her citizenship remains sub judice before the British courts. Without having received a final verdict on her citizenship, Ms. Begum has, on this view, been denied access to “her own country” by the Home Secretary’s LTE decision, resulting in a violation of her rights under Art. 12(4) of the ICCPR.

Exceptions under Art. 12(3)

The next question is whether exceptions to the freedom of movement in Art. 12(3) can justify the Home Secretary’s decision, which stands vindicated by the UKSC. At the outset, the placement of Art. 12(4) after Art. 12(3) raises questions about the applicability of the exceptions in Art. 12(3) to it, since these appear before the substantive right in Art. 12(4). Assuming the exceptions do applyto Art. 12(4) too, however, two points are relevant.

First, Art. 12(3) provides that “national security” is a substantive ground on which an exception to Art. 12 can be sought by States. This is obviously the ground the UK Government would use to defend itself, as it is also the basis of the Home Secretary’s decision under the British Nationality Act. On a prima facie view, Ms. Begum can be said to pose a national security threat to the UK, given her proven links to extremists who have perpetrated abhorrent atrocities around the world. Unfortunately, the Home Secretary’s deprivation and LTE decisions were expressed to have been made based on confidential information, so all the facts necessary to determine whether national security grounds exist in this case are not in the public domain.

Second, assuming national security grounds exist, the next question is whether the Home Secretary’s LTE decision is “necessary” to protect national security. As has been observed in GC No. 27, this imports a proportionality test into Art. 12 of the ICCPR. It is here that, in my opinion, the Home Secretary’s LTE decision stands on potentially weak ground. Ms. Begum is a solitary individual who has long lost links with active ISIL fighters. Upon her return to the UK, British security and intelligence forces would have every right to charge her with criminal offences committed by her in the UK and abroad and place her under constant surveillance/in custody as a result (a model followed by other European nations dealing with returning ISIL militants). With these options open to fully mitigate national security risks she poses, I would argue that a blanket ban on re-entry into the UK cannot be considered proportionate. This argument is strengthened when considered against the fact that Ms. Begum has been denied re-entry even before a final judicial determination of whether she remains a British citizen has been made. In my submission, therefore, Art. 12(3) would not provide adequate grounds for a justification of the Home Secretary’s LTE decision under the ICCPR and international law in this case, despite its vindication by the UKSC.

Conclusion

As previously stated, Ms. Begum cannot make a direct complaint alleging the abovementioned violations of her rights under Art. 12(4). Had she been able to do so, crucial questions surrounding the international justiciability of national security-based justifications for the violation of international legal rights (an issue that has been in the spotlight recently owing to Art. XXI of the General Agreement on Tariffs and Trade) would have been considered and answered. Without such a remedy, no definitive conclusion will likely ever be reached on whether Ms. Begum’s Art. 12(4) rights have been violated.

Regardless, phrasing the international legal conversation surrounding Ms. Begum’s case in these terms is important. The UKSC’s decision, and Ms. Begum’s case more generally, show that the citizenship of second and potentially even third-generation immigrants around the world are not as secure as “native” citizens’ citizenship, since even a cursory jural relationship with another country (and a potential entitlement to a foreign citizenship, even in the absence of any meaningful social, cultural or economic ties with such a foreign country) can lead to an absolute deprivation of citizenship and the right to return to one’s home in some circumstances. Shifting the focus to whether a country is “one’s own” for the purposes of international law, irrespective of domestic legal provisions on whether one remains a citizen of that country, is an important way of pushing back against this narrative and re-asserting immigrant communities’ right to be treated like “native” citizens of countries they have lived in, integrated into and contributed to for generations. At the very least, phrasing the conversation in these terms exposes the need to ensure that immigrant (and immigrant descendant) citizens retain the right to re-enter their countries of citizenship just like other “native” citizens.

Ms. Begum has committed grave criminal offences. Had she not been of Bangladeshi origin, she would have had a right to re-enter the UK, been charged with the full extent of her criminal acts in the UK and been punished accordingly under UK law. In my submission, it is wrong and a violation of Art. 12(4) of the ICCPR that the foreign place of birth of her parents has led to her being deprived of the fundamental human right to re-enter “her own country”.