Should Shamima Begum be stripped of her British Citizenship?

I would like to consider the position of Shamima Begum’s newborn son, Jarrah.

I want to raise two points in particular:

1. Jarrah is a British Citizen in his own right.

Jarrah, insofar as he was born to Shemima Begum before her British citizenship was revoked, is himself a British citizen by descent and, at least for the moment, a European union citizen.

He continues to enjoy a right of entry and residence in the UK. Normally, under our immigration rules and under EU law (Zambrano), he is entitled to be joined and cared for by his primary carer, even if that primary carer is not a UK or EU national. EU law (Metock) also tells us that the family relationship doesn’t necessarily need to have been established within the territory of the UK, or indeed within the EU to rely on it later within an EU country.

Of course, whether, and under what conditions Jarrah should be returned to and cared for in the UK isn’t just a matter of immigration law; it is a matter of child protection law.

From a child protection point of view, the first question is whether the UK courts have jurisdiction to transfer Jarrah to the UK. In ordinary cross-border child protection cases, it falls to the jurisdiction in which the child is habitually resident to determine such questions (it is habitual residence that determines jurisdiction, not the child’s nationality). So, since Jarrah is not habitually resident in the UK it does not automatically fall to the UK authorities to determine his transfer to the UK.

But given that there is no functioning civil law system in Syria to determine those issues, and given the adverse circumstances in which Jarrah is currently living, it seems likely that the UK could assume jurisdiction.

The problems lie then in the practicalities of getting the baby home… Would it be with a view to taking him into care? Would it be with a view to placing him in the care of his grandparents or other family members? Would it be with a view to him being accompanying by his mother?

Such questions are determined in light of what is in the best interests of Jarrah. In fact, in child protection cases like this, the welfare of the child is the paramount concern, over and above all other concerns.

Given that Jarrah is still living with his mother, may be breastfeeding, and that the matters relating to Shamima Begum’s culpability have still not been fully evidenced to render her unfit to parent, any return to the UK to join family members would have to be with her consent. If the baby is to be removed from the care of his mother, it has to be shown that he has been or is at risk of significant harm at the hands of his mother (s.31 Children Act 1989).

One might not have difficulty in concluding that Shamima’s decision to travel to Syria to join ISIS constitutes significant harm, or a risk of significant harm. But if we think that a parent poses a risk to children simply because they are born as a result of their own grooming and exploitation, that is quite another issue.

If viewed as an immigration issue, section 55 of the Borders, Citizenship and Immigration Act 2009 imposes a statutory duty on the Secretary of State and those acting on his behalf to ensure that all decisions relating to entry and residence of immigrants safeguard and promote the welfare of any children concerned.

The welfare of the child is, therefore, a primary consideration to be considered alongside all other issues. This was clarified in the seminal case of ZH Tanzania (para 41) where Lord Hope stated:

          Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.

Key questions that must be at the heart of this case are:

- Is it in Jarrah’s best interests to be returned to the UK rather than to remain in a Syrian refugee camp. The answer to that must surely be yes;

- Having accepted that it is in Jarrah’s best interests to be returned to the UK, is it in his best interests to be cared for in the UK by his mother? The answer to that may well be yes also;

- And then the question remains as to whether the actions of Shamima Begum are of such considerable force, bearing in mind all of the evidence, as to outweigh the best interests reasoning.

2. Visiting the sins of the parents on the children

The third and final point I want to make is the importance of considering Jarrah as an independent holder not just of British Citizenship, but of human rights.

Our criminal law, as well as our immigration law, makes a point of ensuring that the sins of the parents are not visited on the children. This was a particular issue in the case of ZH Tanzania where the mother concerned had a truly appalling immigration history and was implicated in all sorts of fraudulent attempts to obtain asylum. But the court emphasised the importance of putting these into perspective, looking at the bigger picture, including the current and future interests of the woman’s children.

Much inspiration has been drawn from Justice Albie Sachs in his seminal ruling around the criminal sentencing of parents in a South African context. Specifically, in M v State [2007] ZACC 18 (per Sachs J):

• Every child has his or her own dignity. If a child is to be…imagined as an individual with a distinctive personality… he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them…The sins and traumas of fathers and mothers should not be visited on their children. (para 18)
• What the law can do is create conditions to protect children from abuse and maximise opportunities for them to lead productive and happy lives. Thus, even if the State cannot itself repair disrupted family life, it can create positive conditions for repair to take place, and diligently seek wherever possible to avoid conduct of its agencies which may have the effect of placing children in peril. (para 20)

So for these purposes we are left with a couple of burning questions:

- Are the actions of Shamima Begum such that her child should be removed from her care and, potentially, deprived of any further meaningful contact with her?

- If Shamima Begum is ultimately convicted of terrorist offences, should part of her punishment involve complete separation from her child?

- If so, do we risk weoponising children as part of our anti-terrorism strategy in ways that are simply not acceptable in other legal contexts.

The Home Secretary is able to deprive a person of their British Citizenship if to do so would be “conducive to the public good” and not result in the person being “stateless”.

Assuming that one of Shamina Begum’s parents was a Bangladeshi citizen at the time of her birth, Bangladeshi law suggests that Shamina acquired Bangladeshi citizenship at birth. She was also a British national at birth (presumably at least one her parents was British or settled in UK). This made her a dual national.

We know that Shamina Begum was born and raised in the UK and that she has never been to Bangladesh. She has never had a Bangladeshi passport. This does not stop her having Bangladeshi citizenship in the same way that a person born overseas to a British parent may be British. At the age of 21 a dual national would lose her Bangladeshi nationality if she chose not to relinquish her British (or other) nationality.

We know that the Home Secretary’s actions to strip Shamina Begum’s citizenship took the Bangladeshi authorities by surprise. This was most likely very deliberate. Had the Home Secretary warned Bangladesh about his intentions, Bangladesh may have acted first. If Bangladesh had made it clear that they do not recognise Shamina as Bangladeshi (depriving her of her Bangladeshi citizenship) before the Home Secretary acted then she would have been left with only her British citizenship. The Secretary of State would have been prevented from revoking her British citizenship as to do so would have made Shamina stateless. Likewise, had the Home Secretary let time pass until Shamina reached 21 then he would find that she was no longer a dual national. If he revoked her British nationality at that point she would be stateless.

The UK purports to recognise international obligations, to avoid statelessness, in the legislation relevant to this case. It may be that Shamina Begum’s statelessness is not the immediate outcome of the Home Secretary’s decision but it does seem to the actual outcome. The Home Secretary has indulged in a deliberate political manoeuvre which undermines the UK’s commitment to the international effort to prevent and reduce statelessness.

Shamima Begum has lost UK citizenship - the fact that she was a sexually exploited child has been ignored

Shamima Begum has lost her citizenship on dubious legal and moral grounds with the argument being made that she has in effect been made stateless, which is against international law. It seems that the removal of citizenship was linked to the vitriol she has received in the media and the consequent impact that this has had on public opinion – polls appear to show high numbers of the public in favour of the move. The fact that she was a sexually exploited child has been given little or no attention in the media, despite all we now know about child development and grooming.

Shamima left the UK in 2015 as what appears to have been a groomed 15 year old to join ISIS/Daesh. She was legally, technically, in all senses, a child. Apparently when she arrived in Syria in 2015 she ‘was put in a house waiting to be married’ and within 10 days, she became the wife of a 23-year-old. At the time, there appeared to be great concern and sympathy for Shamima and the two school friends who left with her.

The tide has changed greatly, however. Shamima has been framed in a sensational and derogatory manner as a “jihadist-bride”. The focus has not been on the death and misery she has experienced (she describes the death of two children from malnutrition), nor on what is presumably her confused and traumatised state of mind, but on her proclaimed lack of remorse and regret for leaving for Syria.

Her wish to return home to the UK has been met in the political, media and popular arenas with anger and disdain. There are 400 others who have returned home to the UK from Syria who had travelled to join ISIS/Daesh but Shamima has been met with particular anger. Reportedly her picture is being used for target practice at a shooting range in the Wirral. Even the interviewing ITV journalist responded to the 19 year old’s distress that her baby was trapped in the camp with the retort: ‘you’ve done this to your son, this is the consequence of your actions’; insisting to her that this dire situation is her own fault.

It is inescapable therefore that there is particular vitriol reserved for females and children (Shamima was both on leaving) who don’t fit the stereotype of their group – children as helpless, women as caring, and so on. We see many other examples of this tendency in high profile cases – think of the media and public frenzy around the killers of Jamie Bulger. They were and continue to be particularly reviled because unlike other killers of children they were aged 9 and 10 years, though sadly small children die at the hands of adults every week in the UK (a little-known fact).

There is a distinct lack of transparency around the circumstances in which the Home Secretary may revoke citizenship (it is permitted in cases “conducive to the public good”). Revoking her citizenship implies that Shamima has engaged in criminal actions. Little consideration appears to have been given, either in that decision or in narratives about Shamima in the media, that children are to have special treatment when it comes to criminal matters because of their still evolving capacities.

The UK has agreed to abide by the UN Convention on the Rights of the Child (CRC) and other international instruments and standards. Article 40 of the CRC states that children must be dealt with in “a manner appropriate to their well-being and proportionate to the offence” suspected; that there should be diversion from the courts; and like everyone, that children are to have due process rights, such as the presumption of innocence.

There are special laws and treatment for children accused of crimes in the UK and elsewhere – minimum ages of criminal responsibility, different courts, and different sentences, for example. This is because, as we are all aware, the younger one is, the less experienced one will be when it comes to decision-making. Even armed with this information it is not, however, always easy to know how to treat under-18 decisions when it comes to the law. This is for many reasons, including the fact that there are many under-18s making good and effective decisions every day. There are powerful arguments, for example, to extend the vote to under-18s because of the capacity of young people to process and consider information (note Scotland’s positive experiences of including 16- and 17-year-olds in elections).

Yet emerging research in neurobiology about the developing brain shows that it would be unwise to assume that adolescents and adults have identical decision-making capacities. Available research suggests that there is an important transition in decision-making between 15 and 19 years. Neuroscientist Jay Giedd states that in adolescence the brain simply has not reached its full decision-making potential, and coupled with this it is a time of experimentation:

Right around the time of puberty and on into the adult years is a particularly critical time for the brain sculpting to take place... [in the teen years, this] part of the brain that is helping organization, planning and strategizing is not done being built yet ... [It's] not that the teens are stupid or incapable of [things]. It's sort of unfair to expect them to have adult levels of organizational skills or decision making before their brain is finished being built. ...It’s also a particularly cruel irony of nature, I think, that right at this time when the brain is most vulnerable is also the time when teens are most likely to experiment with drugs or alcohol.

So though there is much potential for good decision-making skills in adolescence, neurobiology proves what we know intuitively – you are more likely to make bad decisions under the age of 18 as planning and strategizing abilities are not fully developed: “It is not that these tasks cannot be done before young adulthood, but rather that it takes less effort, and hence is more likely to happen.” There is huge capacity for change and development, however, so under-18 decision-making abilities will often therefore depend on the assistance and space which they have been given to reflect on and understand their situation.

This is what makes it all the more important to talk about child grooming in Shamima’s case. It was not alcohol or drugs which she ultimately came to experiment with, but with a terror organisation she likely had contact with online. There is much that is unknown about the circumstances that led her to leave for Syria. Yet UK security sources state that the internet is the common avenue for ISIS/Daesh indoctrination of children. It is inescapable that Shamima encountered adults online who groomed her, defined by the NSPCC as “when someone builds an emotional connection with a child to gain their trust for the purposes of sexual abuse, sexual exploitation or trafficking.” Child marriage involves inevitable sexual exploitation – at age 15 she could not legally have consented to travelling for marriage – and therefore Shamima was a sexually abused child. Children frequently do not understand that they have been groomed or abused. If the situation had been dealt with in 2015 by her family or professionals (and indeed it seems that authorities failed to act on information that they had in this regard), and adequate assistance provided to her, the outcome would likely have been very different for Shamima.

Indeed, international humanitarian law insists that girls in Shamima’s situation – that is, recruited by terrorist groups like ISIS/Daesh – as are to be seen as “victims of multiple violations of their rights” who must be afforded the same protections as others who have been exploited in criminal activities and trafficking. Nevertheless there has been little concern for Shamima’s situation as a groomed minor, nor adequate recognition that it is the broader system of power in operation – an international network of exploitative adults – which should be the focus of blame here, not the teenager who was groomed by them. When seen through this lens it becomes painfully clear how shameful is it to use a picture of a sexually exploited girl for target practice; to strip her of her citizenship; to tell her this is her own fault.

There have been many cases in the courts seeking to deal with children of those returning from Syria and those considered to be radicalised and otherwise affected by the operations of ISIS/Daesh. A government spokesperson commented to the Independent newspaper that: “Authorities will use …a range of powers to protect returning children and support their welfare…” It seems that, once they happen to have turned 18 they are considered fair game for any treatment deemed politically advantageous at the time.

There is clearly a large degree of demonisation of Shamima, and it is likely that this will happen to other women returning from Syria in similar circumstances. In 2015 she was a sexually exploited child and she has recently entered adulthood. Whether she has actually committed any crimes is unclear and unproven. Whether she would pose any risks to the public at all is likewise unproven. Yet she has been stripped of her citizenship. Until these skewed perceptions of Shamima’s situation are called out for what they are, young people like her will be denied the proper assistance and care after exploitative and traumatic experiences.

Biography

Aoife Daly is Senior Lecturer at the School of Law and Social Justice at the University of Liverpool and Deputy Director of the European Children's Rights Unit which seeks to progress children’s rights through research. She recently published Children, Autonomy and the Courts: Beyond the Right to be Heard (Brill/Nijhoff, 2018) in which she argues that it is children’s autonomy and due process rights, not solely their ‘right to be heard’ which should be the focus where courts determine their best interests. She is at present writing about the preoccupation of the law with children’s ‘competence’.

Shamima Begum has gained an unfortunate notoriety in the UK media. On top of her treatment at the hands of the UK government, this notoriety and the particularly dehumanising and misogynistic manner in which she is discussed (“ISIS wife”, “Jihadi bride”, I won’t go on…) have converted her in to a social pariah. The media attention on Begum is fairly unusual in the light of the numbers. But her treatment by this government is not.

The ‘new normal’

She is one of over 150 people who have been cast out by a government committed to a policy of differential treatment and punishment of the most extreme nature. She is part of a ‘new normal’ – of citizenship stripping. This new normal was inevitable for a number of reasons. It is the inevitable end point – insofar as citizenship can be conceived as an end point or social death for the victim – of a discriminatory counter terrorist constitution that has been established at pace and in great volume, since the Terrorism Act was enacted by Blair’s Labour government in 2000. This new normal goes further back than 2000, however; it is the continuation of colonial policies and practices, where the “terrorist”, the “barbarian”, the “native”, the “savage”, the “deserving”, or the “colonised” is primed for differential treatment. John Reynolds puts it perfectly:

“…the supposedly new normal is in fact part of a continuing historical constellation of emergency control mechanisms”

Shamima Begum’s move to align herself, whether by choice or through coercion, to Daesh/IS is politically and morally condemnable. It may be legally condemnable, if she has committed offences in national law. But it is in this legal condemnation that this historical constellation becomes most vivid.

Punishment not security

Shamima Begum’s case is another act in the performance of a racialised counter terrorist emergency regime. The justification for deprivation of citizenship, in this and other cases, is legislated as deprivation “conducive to the public good” as the person has “conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”. The Home Office has represented Savid Javid’s decision to revoke her citizenship as in the interests of ‘safety and security’. She may be a security risk, and, in this respect, in terms of her monitoring and possible legal action once back in the UK, there would of course be economic consequences and a political cost. This is the case across several social sectors where monitoring and surveillance are required.

However, there are at least two incredibly compelling reasons to wholly doubt the security justification. First, if she is a security risk at all, she is as much so outside of the country as she is in the UK. In A v Secretary of State for the Home Department, concerning the indefinite detention of 9 foreign nationals at Belmarsh prison, the House of Lords recognised the deceit of a security justification for a measure which distinguished, discriminatorily, between nationals and non-nationals. The measure, which provided for extended powers of arrest and detention, essentially allowed non-nationals who could safely leave the country the choice to do so whilst non-nationals who were unable to leave, due to the risk of torture if deported, were subjected to indefinite detention. Lord Bingham said:

“allowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country.”

In other words, if you are worried about the security risk here, why are you not worried about the security risk they pose there? In reality, whilst presenting it as a security problem, the Blair government had found a security solution to an immigration problem. But, and this helps to work out the second fallacy in Javid’s security justification, the House of Lords found that they had discriminated against non-nationals because they were treated differently to nationals who also posed a security risk but were not subject to an indefinite detention order.

A similar discriminatory underpinning exists in the case of citizenship deprivation – between ‘suspected’ dual nationals and nationals; though, arguably, the politics at work are even more grievous. Nationals, who have no claims on citizenship elsewhere, but who pose a security risk, are not subject to this ‘measure’ (and, it should go without saying, should not be). This then is a security ‘solution’ – applied to a national – to an anti-immigration populist problem.

The art of security

Security, then, is the justification. Security is a convincing and seemingly inclusive language. Security is the tactic by which the government earns our support for its policies. Because we all want to feel, and be, secure and because national security seems to be an objectively good goal. But security is a duplicitous concept - a “slippery concept”, as Lucia Zedner has put it. Security is always beyond reach: there is no such thing as absolute security.

Beyond this elastic, yet all-encompassing, nature of the concept, it is important to understand that there is an intrinsic othering also at work in the notion of security, and in the Home Office’s gesture towards national security. Our security is pitted against their liberty. Their security – Shamima Begum’s security – falls outside the frame of perception. Moreover, our security from the state – a state with the power to withdraw citizenship – is not even part of the discussion. So security is the mechanism by which we can convince ourselves that Shamima Begum deserves her treatment because the state has convinced us that ‘she’ is the problem. This approach shields us from the realisation that she is in fact being punished for joining IS and – dare I say it – for her heritage.

Our security-their emergency

We would wish to explain the Home Secretary’s attempt to strip Shamima Begum of her citizenship as a move to protect security. It is not. It is another move in a highly racialised game of emergency, that has been in play, in this iteration, since 2000. In the UK today, narratives of Britishness, British values, the tradition of liberty, the rule of law and security prevail for the many, for “us”. The assertion of normality stands in stark contrast to the executive and emergency powers that the government has mobilised and which are applied to “them”. Over the past 20 years, extensive powers to strip citizenship, to stop and search, to detain at ports and borders, to detain, without charge, amongst many others, have been wielded against a “suspect community”. Counter-terrorism legislation and powers allow for executive decision making and de facto emergency powers in numerous areas. The effect is to confer different status on different people depending on how they look or how committed they are to the notion of British values.

When prompted by an ITV reporter, immediately after reading the letter from the Home Secretary notifying her of his decision to revoke her British citizenship, ‘So the Home Secretary’s deprived you of your British citizenship?’, Shamima Begum replies, ‘Yeah, but I’ve heard that other people have been sent back to Britain. So I don’t know why my case is any different to other people. Was it just because I was on the news four years ago?’

She has to be on to something, here. The high profile that UK news media have given to this case will have counted against Begum in the decision to revoke her citizenship. But this is not an isolated case of press coverage of a singular issue, it fits into a much broader pattern of reporting on ‘Britishness’ and ‘foreignness’ as played out in stories related to immigration and citizenship law. Fitting within this well-worn track has allowed the story to take off in the public imagination the way that it has and allows us to draw some broader points from this one example.

The points that I want to make here draw on a chapter written with Dr Eleanor Drywood on immigration and human rights in the media. Whilst Begum’s case is not, strictly speaking, an immigration case rather one about citizenship, close similarities can be drawn because of how the media understands who “counts” as British, and thus to whom immigration frames apply.

The first point is that media presentations of ‘Britishness’ and ‘foreignness’ are unrelated to legal statuses. In Begum’s case, she is marked out as ‘foreign’ by her involvement with ISIS, by leaving the UK, and by destroying the British passport on which she travelled, despite being a British citizen. So too with other groups, media presentation and legal reality are divided. EU migrants are chastised for ‘abusing’ the British welfare state and presented as a threat to it, rather than properly part of it, despite many having the legal right to access support and public services and making significant contributions to its budget. Asylum seekers are directly attacked as ‘bogus’ or ‘illegal’ and the legitimacy of all called into question by repeated emphasis on the need to identify those who are ‘genuine’. This is notwithstanding the long-standing legal right to apply for asylum from persecution and the right to remain in the UK while that application is determined.

Second, the press links together markers of ‘foreignness’ and represents all as dangerous. This is most obvious in instances of criminal behaviour. Stories about criminality or activity that is deemed terrorist are jumped upon by the press when they relate to those perceived as ‘foreign’, and through over-emphasis of this association. Through drawing these overt connections, less direct, but nonetheless consistent and pernicious connections are drawn between, on the one hand, danger and criminality and, on the other, characteristics that are used to mark out citizens as ‘not British (enough)’, or as ‘other’: being born outside of the UK, being Muslim, belonging to a group racialised as non-white. This suspicion of danger is compounded by the way in which immigration cases are legally framed and reported on by the media, that is, as a challenge and danger to the British state, British public (conceptualised to exclude migrant and ‘foreign’ groups) and, more generally and intangibly, to ‘Britishness’ itself. When exercising the power to revoke citizenship in particular, the Home Secretary is charged with protecting public security and the public interest, so challenges to such decisions are presented as direct challenges to public safety.

The third point is that this matters. There is a significant body of research in media and communications literature that demonstrates the links between media presentation and public perception and understanding. Media reporting shapes, reflects and perpetuates public opinion. We can see this very clearly when looking at some opinion polls conducted on Begum’s case. The Liverpool Echo ran a poll that showed 97% of voters in favour of the decision to revoke Begum’s citizenship*. A talkRADIO poll resulted in a 99% majority in favour of the decision from more than 280 000 votes. Perhaps a more representative, but nonetheless shocking, result comes from a Sky Data poll which found 78% in favour. I am not making any empirical claims about the accuracy of these polls, and am not condoning the decision to hold them, but they certainly show which way the wind is blowing in public opinion.

This creates an environment in which not only one young woman is deprived of her citizenship in a media circus, but, more broadly, it creates one in which a government thinks it will be politically advantageous to declare a hostile approach to those among us not considered to be ‘British enough’, regardless of legal status, resulting in a legal framework that means that your citizenship rights are less enduring if you’re not white. This is true for Shamima Begum as it is for the Windrush generation and for other members of our society.

*Since seems to have been removed from the internet.