How could Shamima Begum win an appeal against the Home Secretary’s revocation of her citizenship?
First off, it’s illegal for any UK court to remove citizenship if that would make someone stateless. In Shamima’s case, she doesn’t have dual citizenship (that we know of) so that’s a weight in her favour right there.
Shamima Begum could also argue that there is no ground to revoke her citizenship since (she would claim) she doesn’t pose a security threat. If the Home Office can’t provide evidence of crimes she’s committed in Syria then it will be difficult to defend their decision. Shamima could also argue that removing her citizenship would cause harm to her child and contravene child protection laws by leaving him in a dangerous situation where he could die of starvation. It’s unclear whether depriving Shamima of citizenship would also revoke her son’s citizenship, as he was born prior to the revocation. Even if it doesn’t, that would still leave him in a precarious situation unless Shamima agrees to be separated from him and manages to transport him to Britain.
She could further claim that the UK government has a duty of care towards her as a human trafficking/sex trafficking victim who was groomed and abducted as a child and is now seeking to return home. (Luring a person under the age of 16 to run away from their parents is legally abduction and in any case the Bethnal Green girls were undoubtedly groomed online and trafficked to Syria for the purposes of statutory rape and childbearing). The UK Asylum and Immigration Act includes deception and “abuse of vulnerability on the grounds of age” in its definition of means of trafficking. In additon, The Palermo Protocol (2000) defines trafficked children as victims, as under-18s cannot give valid consent. The 2009 UNODC Model Law on Trafficking in Persons offers States two definitions of APOV (‘abuse of a position of vulnerability’) one of which is relevant:
“Taking advantage of the vulnerable position a person is placed in as a result of being a child”.
Which crimes could Shamima Begum be prosecuted for if she returns to the UK?
Assuming that Shamima somehow manages to overturn the Home Office decision, would she be arrested upon touchdown? Well, possibly. Personally I would hope that there would be a full investigation into whether she committed crimes in Syria as well as any information or witness testimony she can provide about the crimes of others. There should also be a police investigation into the crimes committed against her and the other trafficked schoolgirls. Any information she has about the terrorists who groomed her could be crucial in preventing the radicalisation and recruitment of other children (and adults). As for the potential crimes Shamima Begum is currently known to have committed, they remain very…potential. Joining certain terrorist organisations is a crime in the UK. The age of criminal responsibility in England is 10 (currently 12 in Scotland; previously 8). Shamima, who left for Syria from England, was obviously above the age of criminal responsibility. However, for crimes such as these, people usually have to be 16 or over to be prosecuted, or even 18. This means that while two of the other ‘Jihadi brides’ could be prosecuted as they were 16, Shamima cannot be. There may be some crimes that none of the girls could be charged with as none were 18 at the time. Shamima’s involvement in crime while in ISIS isn’t likely as women are not allowed to take part in combat and are treated as sex objects. Shamima probably lived as an imprisoned housewife whose life consisted of sexual abuse, lack of adult supervision and denial of education (ISIS provides so-called ‘education’ to girls but this ends at the age of 15).
So, if Shamima Begum has not participated in any atrocities whilst with ISIS, she’ll probably not be successfully prosecuted.
The fate of Shamima’s baby
The UK social service system is governed by the courts but operates independently. They have a duty towards Shamima’s son under Prevent, as well as under the usual child protection laws and policies. Hopefully, an urgent social work assessment of any child protection concerns will be carried out- not just on Shamima Begum, but the entire Begum family. Regardless of the outcome (social services could seek a Care Order from the courts to remove the child into foster care and/or eventual adoption, or allow the child to remain with her but with intervention), Shamima should be linked up with a deradicalisation service such as Channel. This is extremely important- not just to deradicalise her but also to prevent her from radicalising friends, family and boyfriends. If successful, deradicalisation would also prevent her from choosing a radicalised individual as a partner in the future. If her baby remains living with Shamima, a pro-ISIS stepfather on top of a radicalised mother would spell disaster. Even radicalised friends would have an effect on the child.
Could the family claim Dutch citizenship? And why Shamima doesn’t need actually need it
Well, that depends. If Shamima’s marriage was registered officially, it would be legal under Syrian law. This would probably confer Dutch citizenship on her. However, Holland may have laws which specify minimum numbers of years for citizenship to be granted through marriage in order to thwart sham marriages- Britain has had these laws for a long time. If that’s the case then Shamima may have to wait a few years to become a citizen of Holland. If her husband is deceased, she may never be able to claim citizenship.
But that doesn’t mean she definitely can’t reside there. Dutch citizenship will have passed to her baby from the father, meaning the child has a right of abode in Holland. While some countries don’t automatically give citizenship to children of unmarried fathers, the mother or child can apply for the child’s right of citizenship if paternity can be proven. So the legal-ness of Shamima’s marriage isn’t an issue. Because her baby has a right of abode, Shamima could claim the right of residency in Holland until her baby reaches the age of majority or the legal age of independence. EU law, including European Court of Justice case law,is very clear that childrens’ rights of abode must not be denied them by denying their legal guardians the right of abode in the country until they reach majority. In some cases this can extend to a child’s right to be educated in their country of citizenship, potentially increasing Begum’s length of stay to her son’s (and any future children’s) university career. So contrary to popular belief, Shamima Begum doesn’t actually have to become a Dutch citizen.
Begum could also apply for asylum from any country including Holland and the UK, though obviously her application would be considered differently as she is a possible threat to national security.