The appellant, who was born in the United Kingdom to Bangladeshi parents, was deprived of their British citizenship by a decision of the Secretary of State for the Home Department on national security grounds after traveling to Syria. The Secretary of State also rejected their application for permission to enter the country to pursue their appeal. The appellant appealed to the Special Immigration Appeals Commission (the ‘SIAC’), arguing that the deprivation decision had made them stateless because they did not retain Bangladeshi nationality. The SIAC rejected that argument and held that, at the date of the deprivation decision, the appellant was still a Bangladeshi national by descent under Bangladeshi law and therefore was not de iure stateless. It also held that although the appellant could not meaningfully participate in their appeal from Syria, that did not mean their appeal should be allowed on that ground alone. Upon appeal, the Court of Appeal ruled that the only way to make the appellant’s fair and effective was for them to be permitted to enter the United Kingdom to pursue it.
British Nationality Act 1981
Bangladesh Constitution and citizenship law
The appellant was born in the United Kingdom to Bangladeshi parents. The appellant was a British citizen by birth under the British Nationality Act 1981 as, at the time of their birth, their father had permanent residence in the UK. At age 15, the appellant left the UK and went to Syria. They are currently detained by the Syrian Democratic Forces.
The respondent, the Secretary of State, decided to deprive the appellant of their British citizenship on the ground that the security service had assessed that she had “travelled to Syria and aligned with ISIL”, which it considered posed a threat to national security (Decision of 19 February 2019). The Secretary of State also issued a decision refusing their application for permission to enter the country to pursue their appeal against that deprivation decision (Decision of 13 June 2019).
The appellant appealed against both decisions before the Special Immigration Appeals Commission (the “SIAC”). These proceedings concern the determination of some preliminary issues, namely: (1) Whether the Secretary of State’s decision to deprive the appellant of their British citizenship made the appellant stateless; and (2) whether the appellant could have a fair and effective appeal from Syria and, if not, whether their appeal should be allowed on that ground alone.
On the deprivation decision
The appellant argues that they are not considered a national of Bangladesh under the operation of its law. The appellant does not rely on state practice to argue that they were de facto stateless, but rather argued that the appellant was de iure stateless because, as a result of political pressure, the Supreme Court of Bangladesh would decide any case involving the appellant in favour of the Government. The appellant also argued that, whatever the courts in Bangladesh might decide, the Government would not treat the appellant as a national of Bangladesh and they would not be able to challenge that in court.
On the decision refusing the appellant’s application for permission to enter the country to pursue their appeal
The appellant argued that they were unable to communicate fully and confidentially with their advisors while outside the UK and had not been able to give instructions beyond those for the appeal to be brought. They submit that the appeal has to be fair and effective to remedy the absence of an opportunity to be heard before making a deprivation decision. If the appellant could not have an effective appeal the SIAC would have to allow it.
The Secretary of State argues that it is clear from Bangladeshi law that the appellant, who was not yet 21, was Bangladeshi national by descent at the date of its decision to deprive them of their British citizenship.
On the deprivation decision
According to the British Nationality Act 1981, the Secretary of State had power to deprive a person of their citizenship if the Secretary of State is satisfied that deprivation is conducive to the public good. It prevents the Secretary of State from depriving a person of their citizenship if “he is satisfied that the order would make [the] person stateless”. It does not prevent the Secretary of State from depriving a person of citizenship which results from naturalisation if the Secretary of State has reasonable grounds for believing that the person is, under the laws of another state or territory, able to become a national of that state or territory. The British Nationality Act 1981 confers a right of appeal on a person who has been deprived of their British citizenship.
The SIAC referred to Pham v Secretary of State for the Home Department, where the Supreme Court held that the word “stateless” in the British National Act 1981 gave effect to Article 1(1) of the 1954 Convention Relation to the Status of Stateless Persons (‘1954 Convention’) and meant “not considered as a national by any state under the operation of its law”. It dismissed the appeal, holding that in any event, regardless of whether another state’s practice was relevant to the question of statelessness, the appellant was not stateless on the date when the Secretary of State made the deprivation order. The SIAC found that the decision in Pham therefore gives no direction on whether state practice is relevant to the interpretation of Article 1(1) of the 1954 Convention. The SIAC also referred to the Court of Appeal judgment in that case, which held that “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 iure stateless. If the Government of the foreign state choses 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 iure stateless”.
The SIAC analysed Bangladeshi law and concluded that, at the time of the Secretary of State’s decision to deprive the appellant of their British citizenship, the appellant “was a citizen of Bangladesh by descent […]. She held that citizenship as of right. That citizenship was not in the gift of the Government, and could not be denied by the Government in any circumstances. As she was under 21, […] her Bangladeshi citizenship was not affected [by a provision prohibiting dual nationality].” (para 121) “[…T]hat was the meaning and effect which the Supreme Court of Bangladesh would give the relevant provisions, if it correctly applied the law of Bangladesh.” (para 122)
The SIAC rejected the appellant’s argument according to which the appellant was de iure stateless because the Supreme Court of Bangladesh would decide any case involving the appellant in favour of the Government, as a result of political pressure, as the SIAC found that there was no support for it in the evidence. The SIAC further considered that, “in any event […] it would be wrong for a court in England and Wales to accept that the provisions of the law of a foreign state, with a written constitution […] and a common law tradition, do not mean what they appear to mean, because the Government might argue, wrongly, that they mean something else. Such an approach is arbitrary and undermines legal certainty.” (para 125).
The SIAC also rejected the appellant’s argument according to which, whatever the courts in Bangladesh might decide, the Government would not treat the appellant as a national of Bangladesh, as it found that the appellant could not show that, at the date of the Secretary of State’s deprivation decision, the Government of Bangladesh had any position, either in relation to the appellant, or in relation to people in their situation.
Accordingly, the SIAC found that the appellant was not de iure stateless and the deprivation decision had not made them stateless.
On the decision refusing the appellant’s application for permission to enter the country to pursue their appeal
On the question of whether the appellant could have a fair and effective appeal from Syria and, if not, whether their appeal should be allowed on that ground alone, the SIAC determined that, in their current circumstances, the appellant could not play any meaningful part in their appeal and, to that extent, the appeal would not be fair and effective.
However, it rejected the assumption that, if she could not have a fair and effective appeal, their appeal had to succeed. If that assumption were right, the fact that a person who had been deprived of their nationality on grounds of national security outside the UK and was unable to instruct lawyers and/or to take part in their appeal by video link, entailed, in and of itself, that their appeal should succeed, without any examination of its merits and, in particular, without any consideration of the national security case against them. There was no warrant for a universal rule that every deprivation appeal had to be effective in the statutory scheme. Otherwise, a right of appeal on the merits would be converted into an automatic means of overturning a deprivation decision, regardless of its merits, if an appellant was unable to take part in their appeal. An intention to enact such an implied universal rule could not sensibly be imputed to Parliament.
Accordingly, the appellant's submission that their appeal had to succeed because they could not have a fair and effective appeal was rejected.
The SIAC rejected the appellant’s appeal against the Secretary of State’s decision to deprive them of their British citizenship and their decision refusing their application for permission to enter the country to pursue their appeal.
On 6 April 2020, the appellant was granted permission to apply for judicial review of the SIAC’s decision rejecting their submission that their appeal had to succeed because they could not have a fair and effective appeal was rejected. The appellant did not seek to challenge by way of judicial review the SIAC’s decision on the first preliminary issue that the deprivation decision had not rendered them stateless.
On 16 July 2020, the Court of Appeal ruled that, given that the only way in which the appellant can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal against the deprivation decision, fairness and justice must, on the facts of this case, outweigh the national security concerns, so that their permission to enter the United Kingdom for that purpose should be allowed. (Begum v SIAC (16 July 2020) [2020] EWCA Civ 918)
Alison Harvey, 'Shamima Begum Supreme Court judgment: What are the implications for statelessness cases?', 2 March 2021: https://www.statelessness.eu/updates/blog/shamima-begum-supreme-court-judgment-what-are-implications-statelessness-cases
Alison Harvey, 'Burden of proof in statelessness cases and the meaning of “by operation of its law”', 31 January 2020: https://www.statelessness.eu/updates/blog/burden-proof-statelessness-cases-and-meaning-operation-its-law
Amal de Chickera, 'The power to deprive: prejudiced and precarious citizenship', 13 March 2019: https://www.statelessness.eu/updates/blog/power-deprive-prejudiced-and-precarious-citizenship
Dr. Jules Lepoutre, 'In varietate concordia? Loss of nationality in the EU', 8 May 2020: https://www.statelessness.eu/updates/blog/varietate-concordia-loss-nationality-eu