Shamima Begum: What powers exist to deal with returning foreign fighters?

In February 2015 three schoolgirls from East London were reported to have run away from home to join so-called Islamic State (ISIS) in Syria. They included 15-year-old Shamima Begum, who was recently interviewed by the Times in a refugee camp in Syria. In the interview she revealed she was nine months pregnant and expressed a wish to return to the UK, despite apparently having no initial regrets about travelling to Syria. She has since given birth and is reported to be living in the al-Hawl refugee camp in north-eastern Syria.

UK nationals who travel to join terrorist groups

The Government estimates that 900 people have travelled to Syria and Iraq to join terrorist groups, of which approximately 40% have returned (referred to as ‘returning foreign fighters’).

The territory controlled by ISIS in Syria and Iraq has shrunk since 2014 as a result of military efforts by an international coalition of forces. The territory, once roughly the size of the UK, is now said to consist only of a small area near the frontier with Iraq. As a result, it has been suggested that more people may now seek to return.

Alex Younger, Chief of MI6, recently expressed concern about the threat to public safety posed by such individuals. He reportedly said British nationals had a right to return, but that ensuring they do not pose a threat to the public would require a significant level of resource.

Can foreign fighters be deprived of their citizenship?

The Home Secretary Sajid Javid was initially reported to have suggested that he would seek to prevent the return of Shamima Begum. However, writing in the Times on 17 February, he acknowledged  there was a need to be realistic that it would not always be possible to deprive people seeking to return to the UK of their citizenship.

Her family have now released correspondence from the Home Office indicating that the Home Secretary has made a decision to remove her citizenship.  The letter indicates that she has the right to appeal against this decision to the Special Immigration Appeal Commission.

Under the British Nationality Act 1981 the Home Secretary can deprive a person of their British citizenship if they are convinced that it is “conducive to the public good”. The Home Secretary can also deprive a person of their citizenship obtained through naturalisation, if they have conducted themselves, “in a manner which is seriously prejudicial to the vital interests of the [UK],” and there are reasonable grounds to believe they could become a national of another country.

These powers can therefore only be used if they do not make a person stateless. This reflects international legal obligations, in accordance with the 1961 UN Convention on the Reduction of Statelessness, and the Council of Europe’s 1997 European Convention on Nationality.

It has been reported that the Home Office believes Ms Begum is entitled to Bangladeshi citizenship as a result of her heritage. The position regarding her child may be more complex, however.

The use of these powers is subject to independent review. A previous review was published in 2016 by the former Independent Reviewer of Terrorism Legislation (now Lord) David Anderson QC. At that point, the powers in their current form had not been exercised. Sajid Javid has said the powers have now been exercised more than 100 times.

A further review covering the period from July 2015 to July 2018 is required by the 1981 Act. However, the post of independent reviewer is currently vacant since Max Hill QC stepped down in October 2018 to take up the role of Director of Public Prosecutions.

Temporary Exclusion Orders

Another option would be to issue a temporary exclusion order (TEO). TEOs were introduced by the Counter-Terrorism and Security Act 2015 and enable the Home Secretary to prevent a person who is suspected of having been involved in terrorism-related activity outside the UK from returning to the UK, unless they accept certain specified conditions.

Terrorism-related activity includes conduct that encourages the commission, preparation or instigation of acts of terrorism, and conduct that gives support or assistance to those involved in the commission of acts of terrorism.

A TEO would invalidate the individual’s British passport and require them to apply for a permit to return to the UK. The permit would specify the time, manner, and location of the person’s arrival in the UK, and could impose conditions such as a requirement to regularly report to a police station and to keep police informed of their whereabouts. It could also require them to attend a deradicalisation programme, or other appointments aimed at facilitating their reintegration into mainstream society, such as at Jobcentre Plus.

The Government was clear that the policy intention was, where appropriate, to enable people returning to the UK to be reintegrated into mainstream society, as “they can be very important elements in the prevention strategy aimed at those who might follow in their footsteps.”

Failure to comply with a condition is a criminal offence that carries a maximum sentence of five years in prison.

What happens to those who do return?

In addition to using TEOs, the Government has said repeatedly that it would seek to prosecute anyone who has travelled abroad to engage in terrorism related activity. There are a number of terrorist offences that might be relevant, including belonging to a proscribed organisation, or attendance at a place used for terrorism training. However, there may be difficulties in obtaining evidence of conduct that has taken place abroad, in territory without a functioning criminal justice system that UK authorities could cooperate with.

The Counter-Terrorism and Border Security Act 2019 introduced a new offence of “entering or remaining in a designated area” aimed at addressing this difficulty. The new offence would apply to those simply travelling to certain designated parts of the world, without the need to provide evidence of terrorism-related activity whilst there.

Where there is insufficient evidence to bring a prosecution, another option would be to use ’terrorism prevention and investigation measures’ (TPIMs). TPIMs are measures imposed on individuals by the Home Secretary which aim to disrupt suspected terrorist activity and to facilitate investigations. They can include overnight residence requirements, electronic tagging, and restrictions on communication and association.

Further reading

Counter-Terrorism and Border Security Bill 2017-19, House of Commons Library.

Joanna Dawson is a Senior Library Clerk at the House of Commons Library, specialising in home affairs.

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