Shamima Begum may be a Bangladeshi Citizen After All

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In 2015, Ms Shamima Begum, then a 15-year-old British citizen living in London, travelled to Syria to join the so-called Islamic State. Her fate was unknown until recently when Ms Begum was discovered in a refugee camp in Syria. On 19 February 2019, the British Home Office in a letter delivered to Ms Begum’s family, revoked her British citizenship. Now, the 19-year-old wishes to return to the United Kingdom (UK). The aim of this piece is to examine whether Ms Begum is a Bangladeshi citizen as has been claimed by the Home Office, and subsequently contradicted by the Government of Bangladesh.

Article 8(1) of the 1954 Convention relating to the Status of Stateless Persons, to which the UK is a State-party (but not Bangladesh), directs a State, in this case the  UK, to not render a person stateless by depriving him or her of their nationality.

In the UK, Section 40(2) of the British Nationality Act, 1981 states that a person may be deprived of his or her citizenship if such ‘deprivation is conducive to the public good’. Furthermore, Section 40(4) of the same Act mandates that an order to deprive a person of his or her citizenship must not make that person stateless. Section 40(4) is basically the domestic reproduction of Article 8(1) of the 1954 Convention. Hence, the Home Office is authorised by law to revoke the citizenship of an individual provided it does not render that individual stateless.

The British Government is claiming that Ms Begum has both Bangladeshi and British citizenship. Consequently, the revocation of her British citizenship would not be illegal under international law or the domestic law of the UK. On the other hand, the Government of Bangladesh has unequivocally stated that Ms Begum is not a Bangladeshi citizen, and that she has never applied to become one.

It is understandable why there is so much confusion surrounding the question of Ms Begum’s Bangladeshi citizenship. This is so because the laws and regulations relating to citizenship in Bangladesh are scattered across five separate legal instruments: the Citizenship Act, 1951; Bangladesh Citizenship Rules, 1952; the Bangladesh Citizenship (Temporary Provisions) Order, 1972; Bangladesh Citizenship (Temporary Provisions) Rules, 1978; and the Naturalization Act, 1926, as well as multiple Statutory Regulatory Orders (SROs) issued by the Government. This lack of clarity has largely remained unamended due to a dearth of litigation on citizenship laws and regulations in Bangladesh.

Consequently, one is forced to turn to the decisions of the Special Immigration Appeals Commission (SIAC) of the UK to extract the meaning and interpretations given to the relevant Bangladeshi laws and regulations on citizenship. This lack of clarity in Bangladeshi citizenship laws and regulations has been recognised by the SIAC.

For present purposes, two SIAC decisions are important: the December 2017 and November 2018 decision in G3 v Secretary of State for the Home Department and E3 and N3 v The Secretary of State for the Home Department. Both of these cases concern the deprivation of citizenship of supposed British-Bangladeshi nationals on alleged terrorism and national security grounds. The applicable provisions of the citizenship laws and regulations of Bangladesh relevant to Ms Begum’s situation and their respective SIAC interpretations are as follows:

Section 5 of the Citizenship Act 1951 states that, a person born outside Bangladesh ‘shall be a citizen of Bangladesh by descent’ if either of his or her parents is a citizen of Bangladesh at the time of his or her birth. Additionally, if both the parents are only citizens of Bangladesh by descent then the birth of their child must be registered at the Bangladesh Consulate or Mission in that country in order for the child to claim Bangladeshi citizenship.

Furthermore, Rule 9 of the Bangladesh Citizenship Rules 1952 states that, any person claiming ‘citizenship by descent’ under the aforementioned Section 5 of the Citizenship Act 1951, has to apply to a designated local government office in order to obtain the relevant proof of citizenship.

The Commission in G3 (para 70) held that the aforesaid provisions make it manifest that citizenship by descent in Bangladesh arises at birth. This interpretation is also supported by the use of the phrases ‘shall be a citizen of Bangladesh by descent’ and ‘person claiming citizenship by descent’ in Section 5 of the Citizenship Act 1951 and Rule 9 of the Bangladesh Citizenship Rules 1952 respectively. Therefore, a person is automatically a citizen of Bangladesh at birth if either of his or her parents is a Bangladeshi citizen by birth (i.e. was born in Bangladesh).

The application referred to in Rule 9 is merely an application to obtain proof or certificate of citizenship. It has no legal effect on the status of citizenship, which has been acquired at birth. This inference is also supported by the nature of the documents that need to be submitted along with an application under Rule 9.

According to the information currently available, Ms Begum was born in the UK, at least one of her parents is a Bangladeshi citizen by birth. Therefore, according to Section 5 of the Citizenship Act 1951 and Rule 9 of the Bangladesh Citizenship Rules 1952 , Ms Begum is ‘a citizen of Bangladesh by descent’. Her citizenship is not contingent upon whether she holds a Bangladeshi passport or any other proof of citizenship or whether she has submitted any application for the same, or whether she has ever visited Bangladesh. It is evident from the provisions above that holding a passport or a proof of citizenship or applying for the same or even visiting Bangladesh has no impact on the legal fact of citizenship.

Now, the question is whether Ms Begum can simultaneously hold both British and Bangladeshi citizenship. The UK permits dual citizenship. However, Bangladesh generally prohibits the same.

Section 14 of the Citizenship Act 1951 of Bangladesh prohibits dual citizenship by stating that, if a citizen of Bangladesh simultaneously holds the citizenship of another State, then he or she must renounce the citizenship of that other State, failing which he or she shall cease to be a citizen of Bangladesh. However, this provision is not applicable to any person below the age of 21 years. In Ms Begum’s case, this provision is inapplicable as she is only 19 years of age. Consequently, she can still simultaneously be a national of the UK and Bangladesh, at least until she turns 21.

Additionally, Article 2B(1)(i) of the Bangladesh Citizenship (Temporary Provisions) Order 1972, states that, a person shall be disqualified from citizenship of Bangladesh if he or she ‘owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state’. The Commission in G3 (para 63) has confirmed that, this provision is confined to persons who were alive during the commencement of the that Order in 1972, and the Commission in E3 and N3 (para 69) has also held that in light of the historical context, the aforesaid provision is only concerned ‘with allegiance to a hostile state’.

Furthermore, the proviso to the aforementioned Article 2B(1) clarifies that a citizen of Bangladesh shall not cease to be a citizen merely by reason of being a citizen or acquiring the citizenship of another State. The Commission in E3 and N3 (para 69), after criticising the proviso for being ‘poorly conceived and poorly drafted’, concluded that its purpose is to clarify that the bare fact of dual nationality would not disqualify someone from being a citizen of Bangladesh.

Moving on to Article 2B(2) of the Bangladesh Citizenship (Temporary Provisions) Order 1972. It authorises the Government of Bangladesh to grant Bangladeshi citizenship to any person who is a citizen of any other State through the issuance of an official notification.

Subsequently, purportedly, on the basis of the aforementioned provision, on 18 March 2008, the Government of Bangladesh issued a Statutory Regulatory Order (SRO) No. 69 Law/2008 (2008 Instruction) in Bangla (online version unavailable). It provides that a citizen of Bangladesh can acquire and concurrently hold the citizenship of the UK. Also, no special permission or authorisation needs to be acquired in this regard, nor are there any sort of formalities required to be fulfilled in order to benefit from this Instruction.

Unofficial translations of this 2008 Instruction have been used by the Commissions in G3 (para 11), and E3 and N3 (para 17). This Instruction has also been criticised by the Commission in E3 and N3 (para 77) for being ‘imprecise and discursive’. Ultimately, the Commissions in G3 (para 74), and E3 and N3 (para 79) have held that the 2008 Instruction does not apply to cases where British citizenship has been acquired at birth. It only applies to Bangladeshi nationals who have subsequently acquired British nationality such as by taking an oath of allegiance. The Commission in E3 and N3 (para 79) further added that the 2008 Instruction does not have retrospective effect. Therefore, the 2008 Instruction is clearly not applicable to Ms Begum since she acquired British citizenship by birth.

It is evident that the relevant legal provisions are far from precise and efficient. However, it is abundantly clear that Ms Begum is legally a citizen of Bangladesh until she attains the age of 21 years. Thus, the claims of the Government of Bangladesh and some others that Ms Begum is not a Bangladeshi citizen owing to the fact that she does not hold a Bangladeshi passport or any other proof of citizenship, has never submitted any application for dual nationality, and has never visited Bangladesh, have no legal basis.

Therefore, as of February 2019, Ms Begum is legally a Bangladeshi citizen. Consequently, the decision of the Home Office to deprive her of her British citizenship does not legally render her stateless. Hence, the measure is not unlawful insofar as the issue of statelessness is concerned. Although, it may very well be unlawful on other grounds, whether under British law or even international law.

 

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    Comments

    Marek Linha says

    March 14, 2019

    I find it striking that the author of the blog did not reference the definition of statelessness in Article 1(1) of the 1954 Convention. The wording “considered […] under the operation of the law” (considère [...] par application de sa législation) suggests that one must take into consideration how the citizenship law is actually applied in the specific case by the authorities of the respective state. The same is suggested by UNHCR in their 2014 statelessness handbook (paras. 22-24). The fact that the Bangladeshi government categorically pronounced that Begum was not a Bangladeshi citizen is legally directly relevant for the question of whether Begum is stateless according to Article 1(1) of the 1954 Convention.

    Marek Linha says

    March 14, 2019

    Also note that the author of the blog incorrectly references Article 8(1) of the 1954 Convention relating to the Status of Stateless Persons, instead of the 1961 Convention on the Reduction of Statelessness.

    Norton McKree says

    March 14, 2019

    Mr. Udin, thank you for your analysis. It is regretful to see to what extent people lack courtesy when commenting on posts of this blog.

    Farhaan Uddin Ahmed says

    March 14, 2019

    On your second observation: Yes, It should be the 1961 Convention on the Reduction of Statelessness not the 1954 Convention relating to the Status of Stateless Persons. Apologies for the oversight.

    On your first observation: The thrust of the argument made in the post is that the Bangladeshi Government's position that: Ms Begum is not a citizen is one that has no basis in Bangladeshi law regardless of what it has pronounced.

    However, you do raise an important point here. Which is: To what extent should we consider, acknowledge or accept a position of the State if that position contravenes its own municipal laws? One cannot say that the position of the State is be-all and end-all, at least in case of statelessness. If that were the case then Article 1(1) of the 1954 Convention would have ended at the word 'State' and would not have included the subsequent phrase 'under the operation of its law'.

    Thank you for your correction and insightful observation.

    Farhaan Uddin Ahmed says

    March 14, 2019

    Additionally, it seems that Ms Begum's case is unlike any in the past. I am not sure about the extent to which post-facto (i.e. post-revocation) clarification of the law or (requisite) practice by the Bangladeshi Government may be relevant in Ms Begum's case.

    Additionally, I am also not sure about the extent to which de facto statelessness influences a case concerning statelessness. Nonetheless, the UNHCR's Handbook states that 'the term de facto statelessness is not defined in any international instrument and there is no treaty regime specific to this category of persons' (para 7). It seems that the concern of de facto statelessness may not have any effect on the issue of de jure statelessness or statelessness as defined and envisaged in the legal instruments.

    Marek Linha says

    March 15, 2019

    The distinction between de-jure and de-facto statelessness is unhelpful. The relevant question is whether the person, at the time of the assessment, is stateless according to Article 1(1) of the 1954 convention. This is a mixed question of both fact and law. If authorities of the respective state refuse to recognise a person as a national on discriminatory, political or other arbitrary grounds in contravention of the domestic law, then the person is stateless within the meaning of the definition. A different reading would be hard to square with the object and purpose of the 1954 Convention. If the actual application of the law by the state was irrelevant, the wording would be “by any State under its law” rather than “under the operation of its law” or, even more clearly in the French version, “par application de sa legislation”. As the UNHCR statelessness handbook states (para 24): the definition of statelessness "covers situations where the written law is substantially modified when it comes to its implementation in practice."

    Russell says

    March 18, 2019

    What evidence is there that Miss Begum was a British citizen by birth or otherwise? Being born in UK in 2000 did not grant citizenship unless at least one of her parents are legally entitled to register her as British at the time of her birth?

    Were her parents legally married? If not she could only gain nationality through her mother, if her mother was British and/or able to pass on British citizenship to her daughter at her birth. Her father divided his time between UK and Bangladesh and his other wife at the time of her birth. This suggests a Sharia marriage which is not recognised in the UK.

    Alternatively, has her mother gained British nationality or "settled" status and naturalized her daughter since she was born.

    The registration of the birth in a UK register does not in itself grant citizenship, if done without provision of the correct supporting documents.