The UK home secretary is clearly mistaken in his belief
The issue of the alleged or deemed Bangladeshi citizenship of Shamima Begum, one of the controversial British teenage girls who went to join IS in Syria as a Jihadi bride, has come to the fore with renewed interest with the UK home secretary claiming to have stripped her British citizenship under section 40(2) of the British Nationality Act 1981 (“1981 Act”).
Under section 40(2) of the 1981 Act the UK home secretary may by order deprive a person of UK citizenship if the secretary is satisfied that deprivation is conducive to the public good. However, according to section 40(4) the secretary of state may not make an order under subsection (2) if he is satisfied that the order would make a person stateless. This is consistent with the international laws in this regard (see the 1961 UN Convention on the Reduction of Statelessness).
In addition, according to subsection (4A) of section 40 of the 1981 Act, the UK home secretary of state may make an order under subsection (2) to deprive a person of a citizenship status if (a) the citizenship status results from the person’s naturalization, (b) the home secretary is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and
(c) the home secretary has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.
Shamima Begum’s citizenship under the laws of Bangladesh is an important issue in this case since the home secretary is purporting to deprive her citizenship on the reasonable belief that under the laws of Bangladesh, Shamima Begum is able to become a national of Bangladesh. This belief is, however, not supported by the laws of Bangladesh.
Citizenship in Bangladesh is governed by the following laws: Citizenship Act, 1951; Citizenship Rules, 1952; Bangladesh Citizenship (Temporary Provisions) Order 1972; and Bangladesh Citizenship (Temporary Provisions) Rules 1978.
The provisions of the 1951 Act and the 1952 Rules are to be read together with the 1972 Order, and the 1978 Rules to get a complete picture of the laws of citizenship in Bangladesh. Dual citizenship is not recognized in the 1951 Act and the 1952 Rules, but the issued is dealt with in the 1972 Order and the 1978 Rules.
The 1972 Order refers to the power of the Government to “grant” citizenship upon an application. Article 3 of the 1972 Order states that, in case of doubt as to whether a person is qualified to be deemed to be a citizen of Bangladesh under Article 2 (which would be applicable for dual citizens) the question shall be decided by the government, which decision shall be final. Article 4 of the 1972 Order state that the “government may, upon an application made to it in this behalf in the manner prescribed, grant citizenship to any person.”
Rule 3 of the 1978 Rules requires an application to be made seeking Bangladeshi citizenship under clause 2 of Article 2B of the 1972 Order. Rule 7 of the 1978 Rules refers to the power of the Bangladesh Government to “grant” citizenship.
It cannot be said therefore, that the Bangladesh government is compelled to grant citizenship to any person. The Bangladesh authorities do have discretion is exercising their powers to grant citizenship.
Rule 9 of the 1952 Rules requires a “person claiming citizenship by descent” to apply to the government; and then the government, after making such enquires as it deems fit, “shall pass orders on the application as it deems fit.”This also implies that the state is not compelled to recognize that a person is a Bangladeshi citizen and the authorities have discretion to refuse to recognize a person as Bangladeshi citizen.
Thus, dual citizenship or citizenship by descent is not an automatic right, it needs to be granted by the government of Bangladesh based on an application from the person seeking Bangladeshi citizenship by descent. One of the factors that the government of Bangladesh looks at while granting dual citizenship is an applicant’s ties to Bangladesh.
Shamima Begum, never having travelled to Bangladesh and never having applied for a Bangladeshi citizenship cannot be considered a Bangladeshi citizen. Additionally, it is presumable that the government of Bangladesh would also look at the fact that Shamima has been part of a dangerous terror organization for a substantial period of time.
It is arguable that granting her Bangladeshi citizenship would put the country’s national security at risk.
In such a situation, the UK home secretary’s belief that she would be able to obtain Bangladeshi citizenship if she is deprived of her UK citizenship is clearly misplaced under the laws of Bangladesh, and given the stringent policies of the current government in Bangladesh regarding terrorists and terror suspects.
Shah Ali Farhad is a lawyer, researcher, and political activist. He is currently serving as a Special Assistant to the Honourable Prime Minister of Bangladesh. The views expressed herein are solely his own and do not necessarily reflect that of the Prime Minister’s Office.