Shamima Begum and the Legality of Removing Citizenship from an ISIS Member

On both sides of the Atlantic, authorities are grappling with what to do with people linked to Islamic State (ISIS) returning home from the war in Syria.

President Donald Trump has said Hoda Muthana, who left the U.S. to become a propagandist for ISIS, “is not a U.S. citizen and will not be admitted into the United States“, while Shamima Begum, who left London four years ago with two friends to join up with ISIS in Syria, has been stripped of her U.K. citizenship.

Other foreign citizens who fought for ISIS are facing justice in their home countries. The British government has prosecuted at least 40 people who have returned to the U.K. having fought in Iraq or Syria. On Feb. 16, Trump called on Britain, France, Germany and other European allies “to take back over 800 Isis fighters that we captured in Syria and put them on trial.”

Begum and Muthana were not combatants, but each pledged allegiance to ISIS. And for now at least, they will not be allowed back to what they consider their home countries. Their cases have raised some difficult questions: What does it mean to be a citizen of Britain or the U.S.? And how easily can that citizenship be removed? Here, we try to explain:

What does it mean to be “stateless”?

To not be a legal citizen of any country. Despite the Universal Declaration of Human Rights affirming that “everyone has the right to a nationality,” the U.N. estimates there are roughly 12 million people around the world who are not considered as a national by any state under the operation of its law,

What this means in practice, for example, is that if Begum’s human rights were violated in Syria, there would be no state that would be able to take up her claim or protect her.

How was Britain able to strip Begum of her U.K. citizenship?

Because it claims she is a dual citizen of Bangladesh. Britain’s Home Secretary (or interior minister) Sajid Javid says he was legally entitled to strip Begum of her British citizenship because she already has Bangladeshi citizenship via her Bangladeshi-born mother. However, Bangladesh’s ministry of foreign affairs insists she is not a citizen, and that there is “no question” of her being allowed into the country. She has never lived in Bangladesh.

Lawyers for Begum say it is illegal under international law for her to have had her British citizenship removed – something that can only legally be done if Begum is also a citizen of another country. If in the future it is found that Begum is a Bangladeshi citizen, Javid’s decision will likely stand; if it’s found that she is not, his decision could be annulled.

Dr. Katherine E. Brown, head of the Department of Theology and Religion at Birmingham University, said Begum has been denied due process. “We haven’t allowed her the rule of law or a fair trial to determine what crimes she may or may not have committed.”

But that may not matter. Under British law, the Home Secretary can revoke a dual national of their British citizenship if he believes it would be ‘conducive to the public good’. It’s a “low and loose test,” says Dapo Akande, Professor of Public International Law at the University of Oxford. “[Sajid Javid] doesn’t need any evidence of criminality, or evidence that Begum is about to commit a crime, to strip her of her British citizenship.”

Does Muthana have a legal right to return to the U.S.?

It’s not clear. Muthana’s lawyer claims she was born in 1994 in Hackensack, New Jersey, yet according to Secretary of State Mike Pompeo, she has no “legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States”. In other words, Pompeo believes Muthana has never been a citizen of the United States.

Hassan Shibly, an attorney for the Muthana family, told the Associated Press the Trump administration’s position was based on an incorrect interpretation of a law surrounding the rights of children born to foreign diplomats. Muthana’s father was a Yemeni diplomat working in the States, and according to U.S. law, the children of active diplomats are not granted birthright citizenship, since diplomats live under the jurisdiction of their home countries.

Muthana’s lawyers maintain, however, that she was born a month after her father was discharged from his position as a diplomat, and that Muthana therefore qualifies for standard birthright citizenship under the citizenship clause of the Fourteenth Amendment.

Where are they now?

Both Muthana and Begum have said they are willing to co-operate with authorities. But until either of them are allowed back home, they will remain in the refugee camp in Syria in which they were found.

Begum is entitled to challenge the decision (either by tribunal or judicial review), but to be successful, she would have to demonstrate that the government acted disproportionately in deciding to remove her British nationality.