Terror trio triumphant in citizenship deprivation appeal

In C3, C4 and C7 v SSHD, the Special Immigration Appeals Commission (SIAC) agreed with the point that C3, C4 and C7 had no other nationality other than that of the UK and so the SSHD was not able to deprive them of their British citizenship under section 40(2) of the British Nationality Act 1981. In distinction to R (Begum) v SIAC [2021] UKSC 7, discussed here, the issues in the instant proceedings were not connected to whether the SSHD should have taken the decisions that she did, but instead whether those decisions were legally open to her. C3 was born in the UK in 1990 and was deprived of her British citizenship. Further, both of her parents were born in present day Bangladesh but her father arrived in the UK in 1957 as a Pakistani citizen but got British citizenship and lost his Pakistani citizenship. C3’s mother arrived the UK in 1987 and was issued her first British passport in 1990 and C3 was a British citizen under section 1(1) of the British Nationality Act 1981 as she was born in the UK to a British citizen father. C4 was born in the UK in 1992 and was 27 when deprived of her British citizenship. Her father was also born in present day Bangladesh in 1940 and moved to the UK in 1965 and got settled status but did not acquire British citizenship. Her mother was also born in present day Bangladesh in 1951 and her mother moved to the UK in 1990 and was granted British citizenship in 2002. C7 was born in Bangladesh in 1978 and was a dual British-Bangladesh citizen, he was a British citizen since his father was a British citizen. He was a Bangladeshi citizen owing to his birth there. The trio travelled to Syria to join ISIS/ISIL and were stripped of their British citizenship.

The territory of present day Bangladesh was a part of British India until 14 August 1947 when it became East Pakistan which then later became the sovereign state of Bangladesh on 26 March 1971. Notably three Bangladeshi legal instruments were relevant to these proceedings, first of all the Pakistan Citizenship Act 1951 which was Pakistani legislation written in English and section 5 (citizenship by descent) was important. For example, one of the issues in C3’s case was whether the amendment (in 2009) to acquire Bangladeshi citizenship through matrilineal descent under section 5 was retrospective. Another piece of primary legislation was the Bangladesh Citizenship (Temporary Provisions) Order 1972 (as amended). The Government of Bangladesh exercised the power conferred by article 2B(2) of the 1972 Order by giving an Instruction, SRO No. 69/2008, in the Bangla language and no official version accompanied it (the most authoritative translated version in English was approved in E3 and N3 v SSHD [2019] EWCA Civ 2020). Overall, C3 submitted that she was never a Bangladeshi citizen by descent and that it was irrelevant even if she was as she lost her Bangladeshi citizenship upon turning 21. C4 and C7 made a like submission which rested on three strands supported by expert evidence.

First of all, when read in isolation, section 14 of the 1951 Act produced the effect that a person who is a Bangladeshi citizen and is also a citizen of another country at the same time loses her Bangladeshi citizenship unless the other citizenship is renounced. Section 14(1A) gives protection against the operation of this provision for under-21s. However, if a person does not renounce her citizenship when she turns 21 she loses her Bangladeshi citizenship. 

Secondly, article 2B(1) of the 1972 Order does not address the circumstances in which dual citizenship can be conferred and does not confer any right to dual citizenship. Thirdly, the 2008 Instruction does not apply to those who became British citizens at birth and only applies to those who acquired British citizenship by naturalisation. The SSHD contested the second and third line of argument. C3, C4 and C7 submitted that SIAC had already on three occasions dealt with the point whether the proviso to article 2B(1) meant that they retained any Bangladeshi nationality after they turned 21. SIAC had considered the point in G3 v SSHD SC/140/2017, E3 & N3 and Shamima Begum v SSHD. C3, C4 and C7 were aggrieved that the SSHD’s attempt to re-argue points determined by SIAC amounted to an abuse of process. They relied on Devaseelan v SSHD [2002] UKIAT 00702* to emphasise that there is a well-stablished jurisprudence in the immigration context governing the use of findings of fact in previous decisions arising out of the same factual matrix.

Devaseelan was approved in AA (Somalia) v SSHD [2007] EWCA Civ 1040 and also in AL (Albania) v SSHD [2019] EWCA 950. In agreement with the expert evidence adduced C3, C4 and C7 submitted that, article 2B(1) of the 1972 Order was introduced to deal with a particular group (namely, the Urdu speaking Biharis stranded in Bangladesh) who would otherwise have qualified for Bangladeshi citizenship but were perceived to be pro-Pakistan and anti-Bangladesh. It did not refer to dual citizens but captured those who owe, affirm or acknowledge allegiance go another state. Overall, article 2B(1) does not by itself confer any right to dual citizenship. The SSHD made lengthy some submissions in relation to the historical context of the relevant legislation and did not accept that the attempt to re-argue points settled in earlier cases was abusive and Devaseelan was not against her. Section 5 of the Citizenship Act 1951 states:

Citizenship by descent

5. Subject to the provisions of section 3 a person born after the commencement of this Act, shall be a citizen of Bangladesh by descent if his [father or mother] is a citizen of Bangladesh at the time of his birth:

Provided that if the [father or mother] of such person is a citizen of Bangladesh by descent only, that person shall not be a citizen of Bangladesh by virtue of this section unless-

(a) that person’s birth having occurred in a country outside Bangladesh the birth is registered at a Bangladesh Consulate or Mission in that country, or where there is no Bangladesh Consulate or Mission in that country at the prescribed Consulate or Mission or at a Bangladesh Consulate or Mission in the country nearest to that country; or

(b) that person’s [father or mother] is, at the time of the birth, in the service of any Government in Bangladesh.

Moreover, section 14 of the Citizenship Act 1951 provides:

Dual citizenship or nationality not permitted

14. (1) Subject to the provisions of this section if any person is a citizen of Bangladesh under the provisions of this Act, and is at the same time a citizen or national of any other country, he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Bangladesh.

(1A) Nothing in sub-section (1) applies to a person who has not attained twenty-one years of his age.

(2) Nothing in sub-section (1) shall apply to any person who is a subject of an Acceding State so far as concerns his being a subject of that State.

In the key case of Bangladesh v Golam Azam 46 DLR (AD)(1994) 192, Latifur Rahman J held in the Supreme Court that the 1951 Act and the 1972 Order are “to be read together to get a complete picture of the law of citizenship in Bangladesh.” However, the SSHD argued that whether the two instruments are in conflict the 1972 Order must prevail. 

SIAC began its discussion by noting that no authority existed to establish that Devaseelan had any application in the present context.

Its starting point was that the proviso to article 2B(1), as inserted by the Bangladesh Citizenship (Temporary Provisions)(Amendment) Ordinance 1978, did not prevent section 14(1) of the 1951 Act from operating from depriving C3, C4 and C7 of their Bangladeshi citizenship when they reached the age of 21. This view was consistent with its approach in E3 & N3 and Begum. Chamberlain J, CMG Ockelton VP and Mrs Jill Battley judged that:

64. … we find nothing in the SSHD’s attempt to re-argue these legal points that could properly be characterised as an abuse of the Commission’s process. 

However, SIAC held that as British citizens from birth, section 14 of the 1951 Act applied to C3, C4 and C7. Under the 1951 Act, assuming that they were citizens of Bangladesh by descent, they had until their twenty-first birthdays to decide whether to renounce their British citizenship. 

As for C3 (if she was a citizen of Bangladesh by descent) and C4 and C7 (in any event) lost their Bangladeshi citizenship under section 14 of the 1951 Act when they turned 21. 

The above result was not affected by the proviso to article 2B(1). 

SIAC found that the amendment (in 2009) to acquire Bangladeshi through matrilineal descent under section 5 was retrospective. The amendment was the result of the judicial declarations in light of which it was clear that the conferral of citizenship by patrilineal descent only had suffered from the vice of unconstitutionality. The retrospective nature of the amendment was also in line with the approach of Lord Mustill’s approach in L’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 where he held “the true principle is that Parliament is presumed not to have altered the law applicable to past events and transactions in a manner which is unfair to those concerned in them unless a contrary intention appears.” Both the experts agreed that the same principle would apply in Bangladeshi courts. SIAC did not see how the mere conferral of citizenship by section 5, as amended, could be regarded as unfair. Overall, it was SIAC’s view that they won on the short point that they had lost their Bangladeshi citizenship. Chamberlain J, CMG Ockelton VP and Mrs Jill Battley said that:

117. C3, C4 and C7 have persuaded us that, on the dates when the decisions and orders in their cases were made, they were not nationals of Bangladesh or any other State apart from the UK. This means that orders depriving them of their British citizenship would make them stateless. Because of section 40(4) of the 1981 Act, the Secretary of State had no power to make order with that effect. For that reason (and that reason alone), the appeals against the decisions to make those orders succeed. 

Ultimately, C3, C4 and C7 were a lot luckier than the infamous ISIS bride Shamima Begum as they lost their Bangladeshi citizenship upon turning 21. She was less fortunate than them because she had not lost her Bangladeshi citizenship and was ironically protected by section 14(1A) of the 1951 Act as she was under 21.

Discussing Shamima Begum, Joshua Rozenberg asked the question whether the European Court of Human Rights (ECtHR) will favour her after the dismissal of her appeal by the UK Supreme Court?

Her lawyers have until August to lodge an application at the ECtHR and Joshua Rozenberg points out that “there is bound to be intense interest in how it handles the case” because of the fact that the “UK’s relationship with the human rights court is under review”. He also thinks that the ECtHR’s “pragmatic” judges “will follow the Supreme Court’s reasoning” which was based on the doctrine of separation of powers.

Rozenberg reasons that if Shamima Begum’s legal team was able to conduct complex legal proceedings up to the Supreme Court and beyond in her absence, then it is difficult to see why she needs to be present in London to argue that the government’s decision-making in her case is unlawful. Another big problem for Shamima Begum is that she has received too much publicity most of which has been negative and so she inevitably comes across as a demonic ISIS bride. Of course, her own belligerence has done little to help her.

Nevertheless, the ethical and legal dilemmas in Shamima Begum’s case are pretty manifest because she was groomed by ISIS when she was a child in London, not in Dhaka or Sylhet (her father’s place of birth). She left the UK to join ISIS in Syria and the UK authorities made no effort to stop her. Instead, they let her and her friends Kadiza Sultana and Amira Abase (the so-called “Bethnal Green trio”) slip through their fingers which seems to have been a very convenient solution for the UK. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 3, Citizenship and Nationality, Deprivation of Citizenship, Expert Evidence, Human Rights, ISIS/ISIL, Pakistan, SIAC, Statelessness, UKSC and tagged , , , , . Bookmark the permalink.

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