Whose responsibility are returning family members of IS-fighters?
Updated: Oct 18, 2020
In February 2015, fifteen-year-old Shamima Begum and two of her classmates boarded a flight to Turkey and, from there, travelled to Syria to join the Islamic State (IS) at a time when the terrorist organisation was at the height of its power. Upon arrival in Raqqa, the IS headquarters at the time, Ms. Begum married a Dutch IS fighter. Ms. Begum lived under IS rule for over three years, until the organisation’s decline pushed her to flee. In February 2019, she was found, nine months pregnant, in a Syrian refugee camp. The baby later died of pneumonia; this was Ms. Begum’s third child to pass away since her arrival in Syria. Whilst still pregnant, Ms. Begum had pleaded to be allowed to return to the UK but then Home Secretary Sajid Javid opposed bringing Ms. Begum back and stripped her of her British citizenship. According to UK nationality law, an individual can have their citizenship stripped by the Home Secretary (the Secretary of State for the purposes of the legislation) in three circumstances. One is pragmatic, namely if the citizenship was obtained through fraud. The two others are more ambiguous, namely where, if the individual is a British citizen by birth, cancelling citizenship is “conducive to the public good” or, if the individual gained British citizenship through naturalisation, where cancelling citizenship is “conducive to the public good” because the individual’s actions are “seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory”.
There is, however, a caveat to this sweeping power to deprive individuals of their citizenship. Article 15 of the Universal Declaration of Human Rights (UDHR) states that everyone has the right to a nationality, and that no one shall be arbitrarily deprived of their nationality. The British Nationality Act 1981 confirms that a person who is British by birth can only be stripped of their British citizenship if they would not become stateless as a result of the deprivation. As such, as she was born in Britain, depriving Ms. Begum of her nationality is only legal if doing so does not leave her stateless.
Ms Begum challenged the Home Secretary’s decision to revoke her citizenship on that basis. Her challenge to the decision made international headlines. She argued that as she was born in Britain and had no other nationality, taking her British citizenship away would render her stateless. Then, an initial ruling by the Special Immigration Appeals Commission (SIAC) in February 2020, on three preliminary issues, found that Ms. Begum was "a citizen of Bangladesh by descent" and therefore was not made stateless by the Home Secretary’s decision. Establishing whether Ms. Begum has (or is eligible for) Bangladeshi citizenship is a matter of interpreting Bangladeshi law which, evidently, is a complicated area. Previously, the Bangladeshi authorities have stated that Ms. Begum would not be allowed to enter Bangladesh, as she had never claimed Bangladeshi citizenship or even visited the country, however different readings of the law show that the issue is not clear-cut. During the preliminary issues hearing before SIAC, both parties relied on an expert witness to provide expert evidence on Bangladeshi nationality law. Unsurprisingly, the expert witnesses provided evidence pointing to opposing conclusions. Ms. Begum came to the media’s attention again in July 2020, when the Court of Appeal ruled that she should be allowed to enter the UK to fight and appeal the decision to strip her citizenship in person. Former Home Secretary Sajid Javid tweeted a statement saying he was "deeply concerned about the Court of Appeal judgment” as, regardless of the outcome of her case, if Ms. Begum returns to the UK "it will prove impossible to subsequently remove her." He instead supports the idea of Ms. Begum fighting her case from overseas using “modern technology”. It is not impossible nor illegal to make legal assessments in the absence of a legal party. This remains true in the context of matters pertaining to nationals fighting for IS abroad. For example, two Belgian women who travelled to Syria together with their radicalised husbands in 2013 were convicted by a Belgian court in absentia to five years in prison and an 8000 euro fine for aiding and abetting in terrorist activities. In contrast to Ms. Begum, however, the conviction was not related to the women’s nationality – their Belgian citizenship was not a point of dispute. Plus, importantly, unlike Ms. Begum, they were not minors when they left Belgium for the caliphate. The Court of Appeal’s decision brings to the fore the issue of what should be done with members of IS (and their families) who now wish to return to their countries of origin. This issue has serious implications for those individuals who, like Ms. Begum, would return to face legal proceedings or alternatively face being convicted of terrorism offences or losing their citizenship in absentia. The Court of Appeal, at paragraph 92 of their judgment, accepted that the SIAC decision, “in clear and categorial terms”, had found that Ms. Begum “cannot play any meaningful part in her appeal” whilst in her “current circumstances”. The Court of Appeal further stated that “[w]hat ‘in current circumstances’ means is whilst Ms Begum is detained by the SDF in a camp, which as matters stand is for an indefinite period.” In other words, the Court of Appeal accepted that Ms. Begum is not in a position to fight her appeal adequately from the camp where she currently remains. The other cohort for whom this issue is particularly acute is the children of IS fighters who remain unable to return to their parents’ home countries. There is by no means a uniform approach being taken by Western European nations, with a clear point of friction being what to do with the spouses of IS fighters and, as a distinct cohort, with their children. For instance, a Belgian judge held in December 2019 that “all measures should be taken to bring the IS-widows and their children back to Belgium.” This judgment was later overturned by an appellate court, when the burden to bring the families back was stated not to be “an obligation on the state of Belgium, but merely a possible course of action.” In the case of the two Belgian women who were convicted of terrorism offences, four of their six children were brought back to Belgium in January 2020, separately from their mothers. The two youngest children remain with their mothers in a Turkish prison, until Turkey decides whether they will be extradited back to Belgium to serve out their sentence. In France, it appears that the French government is more inclined to assist the children of IS fighters than their spouses. As such, in June 2020, 10 minors and unaccompanied children were repatriated separately from their French mothers, who are still stuck abroad. This was after wives and children of IS fighters stranded in Kurdish refugee camps in Syria sued the French government for failing to assist French nationals in need by refusing to assist them to return them to France. Similarly, the UK government has taken back several unaccompanied children from former IS territory, with PM Boris Johnson stating that the repatriation was “a great success”. British Foreign Secretary Dominic Raab has also stated that bringing these children back to the UK was “the right thing to do” as “these innocent, orphaned, children should never have been subjected to the horrors of war.” A pattern emerges here where children of IS fighters are brought back to their “home” countries whilst their mothers are stuck in refugee camps or prisons abroad. In Ms. Begum’s case, this pattern manifests itself in a questionable approach on behalf of the Home Office. Granted, Ms. Begum was an IS bride, just like these French and Belgian women who are still stuck in limbo. However, she was also a child when she left London for the Islamic State. As the Home Office has stated, bringing British children back home should not be up for debate. Neither should the right to a fair trial. Charlotte Rubin is a Queen Mary law graduate. She writes about immigration and human rights issues for Seraphus, the Justice Gap, Free Movement and other outlets.