Author: BILAAL SHABBIR
The controversial story of British teenager Shamima Begum has dominated the news in recent days. Shamima left the UK in February 2015 to travel to Syria at the age of 15. She was very recently found in a Syrian refugee camp, heavily pregnant, after she had escaped from an Islamic State stronghold in eastern Syria. She spoke of having married an IS fighter and already losing her two children to malnutrition.
Last week Shamima’s family issued a statement saying that Shamima was a “total innocent” and had been “groomed” by ISIS sympathisers. But Home Secretary Sajid Javid made it absolutely clear that he would not hesitate to prevent Shamima returning and she would face potential prosecution if she did manage to return. It didn’t help that Shamima had no regrets about joining ISIS.
The legal question is this: how can the government stop Shamima returning?
Temporary exclusion of British citizens from the UK
As a British citizen, Shamima Begum has what immigration law rather quaintly calls the “right of abode” in the United Kingdom. Section 1 of the Immigration 1971 tells us that those with right of abode:
shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.
There are examples of lawful interference with the right of abode. One of the powers available for the Home Secretary is to apply to court for a ‘temporary exclusion order’, or make one on an emergency basis. TEOs were, according to the independent reviewer of terrorism legislation, “a reaction to the spate of British citizens travelling to fight in Syria and Iraq, and were designed for the specific purpose of managing their return”.
The legal basis for TEOs is the Counter-Terrorism and Security Act 2015. The power would be available where there is evidence that Shamima had been involved in terrorism-related activity.
Section 2 of the Act lays out this and various other conditions:
(2) The Secretary of State may impose a temporary exclusion order on an individual if conditions A to E are met.
(3) Condition A is that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom.
(4) Condition B is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for a temporary exclusion order to be imposed on the individual.
(5) Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom.
(6) Condition D is that the individual has the right of abode in the United Kingdom.
(7) Condition E is that—
(a) the court gives the Secretary of State permission under section 3, or
(b) the Secretary of State reasonably considers that the urgency of the case requires a temporary exclusion order to be imposed without obtaining such permission.
The practical effect of the TEO is that Shamima’s passport would be invalidated.
Any TEO would be valid for two years. But according to section 4 of the Act:
The imposition of a temporary exclusion order does not prevent a further temporary exclusion order from being imposed on the excluded individual (including in a case where an order ceases to be in force at the expiry of its two year duration).
In theory, this suggests that a British citizen could be excluded from the United Kingdom indefinitely using TEOs if all the conditions were met, although any attempt to use a “temporary” power over the long term would be subject to the usual public law principles of fairness and reasonableness (and bound to end up in the courts).
Permanent deprivation of British citizenship
As such, the other hot topic is whether the Home Secretary can use the draconian power of depriving Shamima of her British citizenship. Section 40(2) of the British Nationality Act 1981, as amended, says that “the Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good”.
A person without British citizenship is in a much weaker position when it comes to the right to live in the UK, even if they have lived here all their life. This is demonstrated by the deportation of people with criminal convictions who grew up in the UK but did not acquire citizenship.
As Colin has outlined in several articles on the subject, the power to deprive a person of their British citizenship on the grounds of behaviour was very rarely used until quite recently. Deprivation powers were not used at all between 1973 and 2002. The government has refused to release any recent Freedom of Information data on the use of this power, but previous figures showed a sharp increase over the past decade, with 81 instances between 2006 and 2015. The Home Secretary now says that the power has been used “more than 100 times”.