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UK Human Rights Blog - 1 Crown Office Row
25 February 2019 by Rosalind English
This week has been dominated by Shamima Begum. On Tuesday last week, Home Secretary Sajid Javid issued an order depriving Ms Begum of citizenship under s.40(2) of the British Nationality Act 1981. The act authorises the Secretary of State to deprive a person of citizenship where this is “conducive to the public good” – but s.40(4) states that the order must not make the person stateless.
The Home Office claimed compliance with s.40(4) on the basis that Ms Begum could claim citizenship from Bangladesh, in light of her Bangladeshi heritage, until the age of 21. However, on Wednesday, the Bangladesh Ministry of Foreign Affairs released a statement that Ms Begum was not a Bangladeshi citizen, and that there was ‘no question’ of her being allowed into the country. Ms Begum herself told the BBC, “I wasn’t born in Bangladesh, I’ve never seen Bangladesh and I don’t even speak Bengali properly, so how can they claim I have Bangladeshi citizenship?”
As Ms Begum is UK-born and not a naturalised citizen, the special provisions under s.40(4A), which allow the Home Secretary to make a person stateless where their actions have been “seriously prejudicial to the vital interests of the United Kingdom”, do not apply. Therefore, in light of the revelations on Wednesday, the family intend to appeal; such an appeal would go to the Special Immigration Appeals Commission, a highly confidential tribunal for matters of this nature. In the meantime, they have written to the Home Secretary requesting that arrangements be made for Ms Begum’s child to return to the UK, as the child’s citizenship is not in question.
Six years ago, there was an important case on the meaning of s.40(4): Secretary of State for the Home Department v Al -Jedda [ 2013] UKSC 62. In that case, Lord Wilson stated at [32] that an inquiry under s.40(4)
is a straightforward exercise…it is whether the person holds another nationality at the date of the order .
By its failure to insert express words, such as “in circumstances in which [s/]he has no right immediately to acquire the nationality of another state,” Parliament failed to indicate its intention for anything stronger than this ([33]). In light of Lord Wilson’s dicta, Ms Begum’s hypothetical right to apply for Bangladeshi nationality may not provide the Home Secretary with a valid defence.
However, the matter will be more complicated if the Home Secretary can establish that Ms Begum’s citizenship remains intact on the basis that she has Bangladeshi citizenship by birth automatically, which has not lapsed as she is not yet 21. These issues were considered in the case of E3 & N3 (Exclusion : Preliminary issue) [2018] UKSIAC SC_146_2017 .
If the Home Office does lose the appeal, its next option may be to issue a temporary exclusion order under the Counter-Terrorism and Security Act 2015, allowing Ms Begum to return on strict licence conditions. On her return, it would be a matter of speculation what the government will charge her with, although membership of a proscribed organization, in contravention of s.11 Terrorism Act 2000, seems a likely choice. Only approximately 40 of 400 individuals suspected of ISIS involvement who have so far returned to the UK have been successfully prosecuted, so there would be no guarantee of a successful prosecution in Ms Begum’s case. No doubt more developments will follow this week.
Strip-searching of female prisoners was investigated in the Corston Report in 2007. Baroness Corston noted its effects on vulnerable women, making them feel “embarrassed, invaded, degraded, uncomfortable, vulnerable, humiliated, ashamed, violated, and dirty”, and recommended its reduction to an absolute minimum. A case this week notes a failure by HM Prison Service to put her recommendations into practice:
There were also cases about asylum-seekers:
And a case about disability discrimination:
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Editors: Rosalind English Angus McCullough KC David Hart KC Martin Downs Jim Duffy Jonathan Metzer
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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
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