The legal dilemma of Shamima’s nationality

Shamima Begum, a British schoolgirl who had fled to Syria to join the Islamic State had attracted global attention in the past months after she was stripped of her British citizenship.

Reportedly both her parents are of Bangladeshi origin and it is being suggested that she is also a Bangladeshi citizen as per the citizenship laws of the country. Some of the media outlets had unofficially cited British government sources to have been claiming Shamima’s supposed dual nationality as the rationale for revoking her British citizenship.

Although the detail grounds of the decision of the home secretary revoking Shamima’s citizenship is not yet known, the revocation is presumably rationalized on the ground of being “conducive to the public good.” It is the criteria held by the British Nationality Act of 1981 [section 40(2)] as a ground for removal of British citizenship. 

However, such a decision of revoking citizenship would generally render a person stateless unless that person holds the nationality of another country. Being a signatory to the UN Conventions on statelessness, the British nationality law restricts the UK government from removing nationality when such a decision would make a person stateless [under section 40(4)]. As such, it appears that the British government may have taken its decision to deprive Shamima of her British citizenship under the speculation that Shamima also holds Bangladeshi citizenship through her Bangladeshi parents.

A day after the letter was served to Shamima’s family in the UK, the home secretary reportedly made statements to the media that the British government in the past had never taken a decision that rendered a citizen stateless and that he would also decide similarly. 

However, there were examples in the past where British citizens had been stripped of their nationality and had consequently ended up being stateless. Shamima would be one such example where a decision of revocation has practically left her in indefinite uncertainty. 

In Shamima’s case, a clear statement had been issued on behalf of the government of Bangladesh to the international media clarifying its position vis-à-vis her citizenship. The statement from the state minister of foreign affairs strongly asserted that Shamima was never a Bangladeshi citizen and she would not be allowed to enter its territory. This leaves no doubt that revoking her British citizenship had effectively made her stateless. As such, what may transpire from the British home secretary’s statement above is that the British government, although will not render a person stateless in theory, the consequence perhaps may render the person stateless in practice. 

However, the true spirit of the international laws against statelessness is the concern for protecting the fundamental human right of every person to be entitled to a state’s “effective” protection as its citizen. 

Now a question that is also being rigorously enquired is whether in theory also, Shamima can be said to have been rendered stateless by the removal of her British citizenship. Many had been arguing that Shamima, being aged 19, is in effect a citizen of Bangladesh by descent although she doesn’t hold a passport or had ever applied for its citizenship. However, from a legal analytical perspective, this argument is perhaps not a fool-proof one and there can be a contrary interpretation of the relevant citizenship laws of Bangladesh.

Section 5 of the Citizenship Act of 1951, holds that in order to become a citizen of Bangladesh by descent, an individual’s father or mother has to be a citizen of Bangladesh at the time when she/he was born. Now the key provision in Shamima’s case is the issue of her dual nationality which is generally prohibited under the 1951 Act. 

Section 14 of the Act provides that a person will cease to be a citizen of Bangladesh if she/he is also a citizen or national of any other country. However, the provision creates an exception for a person below 21 years of age to whom this bar against dual nationality will not apply. It is this provision based on which it was claimed that Shamima was, in fact, a citizen of Bangladesh at the time of withdrawal of her British citizenship.

Other than the 1951 Act, the issue of citizenship is dealt under a number of laws. Citizenship Rules 1952, which is the corresponding rules to the 1951 Act, prescribes specific forms and procedure to apply for citizenship by descent. When such an application for obtaining citizenship by descent is made under Rule 9, the Citizenship Rules indicates that it is still within “discretion” of the government authority to pass such order as it deems appropriate. 

The Bangladesh Citizenship (Temporary Provisions) Order, 1972 makes a further provision relevant to dual citizenship. Article 2B(2) of the 1972 Order prescribes that the government may grant citizenship of Bangladesh to any person who is a citizen of any state of Europe or North America or of any other state which the government may, by notification in the official gazette, specify. Under this provision, a specific form for application for dual nationality is further prescribed by the Bangladesh Citizenship (Temporary Provisions) Rules, 1978.

A coherent reading of all these provisions draws two logical propositions. One perhaps is the clear rule that until a person turns 21 she/he does not automatically “cease to be a citizen of Bangladesh” simply by being a national or citizen of any other country. 

Second, that such a person nevertheless does not also automatically become a citizen of Bangladesh and some affirmative step should be taken on her/his behalf to be officially acknowledged as such. Further, as the rules cited above suggest, the state authority may exercise its discretion in deciding whether or not to respond positively to such applications. 

It is also perhaps not tenable that Shamima is being imposed with a supposed nationality of a country when she is consistently insisting upon not having any ties with Bangladesh and denying herself to be its citizen at any time.

However, it is also true that the laws and regulations relating to Bangladeshi citizenship are indeed baffling to some extent and there can be at times conflicting interpretations. 

Shamima’s case perhaps is a wake-up call that our citizenship laws -- spread across different instruments enacted and adopted at different political contexts -- need a comprehensive review. It is crucial that our citizenship laws find ways to accommodate the changing global scenario and the new dimensions of state security concerns. 

Taslima Yasmin is a faculty at the Department of Law, University of Dhaka.