Britons returning from Syria fighting mired in legal uncertainty

Britons returning from Syria fighting mired in legal uncertainty
Feature: UK officials are trying to pass ever-stronger laws to strip citizenship from those suspected of fighting in Syria, ignoring other countries' successful strategies, reports Imogen Lambert.
7 min read
14 May, 2015
Shaimma, Amira and Kadiza in Turkey, believed to be on their way to Syria [Getty]
The fate of three British teenagers who travelled to Syria to join the Islamic State group has fuelled debate about what should happen to them if they wish to return.

Shaimima Begum, Amira Abase and Kadiza Sultana left their homes in east London in February and flew to Turkey before crossing the border into Syria. Last week it was reported they were attempting to leave Syria, although their families say they are sceptical of such reports.

Their case has again raised questions about how they should be treated if they were to return to the UK.

Theresa May, the recently re-elected interior minister, has refused to comment specifically on the teenagers, saying those coming home were dealt with on a "case by case" basis.

The Guardian newspaper reported that Mark Rowly, the head of counter-terrorism at the Metropolitan police, speculated on the need to force returning "jihadists" into de-radicalisation courses.

"The number of people who have travelled to Syria has passed 700, in terms of those who are of significant concern to us and the security services... they are potential terrorist suspects," Rowly said. 
     Statelessness is not about options or eligibility, but about the facts here and now.
- Prof Guy Goodwin-Gill, immigration lawyer

New powers - and old

In response to an increasing number of British citizens heading to fight in Syria, a counter-terrorism bill was passed in January which included exclusion orders that could stop suspected fighters from entering the UK - unless they agreed to a number of conditions, such as police monitoring and a full trial.

The legislation was moderated from earlier plans to strip suspected fighters of their British citizenship.

However, according to advocacy group Cage, which works to help those affected by the US "war on terror", this is already being carried out by the home secretary, who has the little-known power to remove citizenship from British nationals, usually for security reasons.

These powers have gradually been extended through legislation since the 9/11 attacks and the war on terror:

- Amendment to the British Nationality Act, 2002: This permitted the home secretary to remove the nationality of dual nationals who seriously prejudiced the interests of the UK. For the first time, this could include British-born citizens and not just naturalised ones. It was used four times.

- Amendment to the British Nationality Act, 2006: This amended the 1981 Nationality Act to give power to the home secretary to remove the citizenship of dual nationals if their presence in the UK was "not conducive to the public good". It was rarely invoked until 2010, when at least 21 such removals were carried out in the first three years of the coalition government's administration, according to statistics from the Bureau of Investigative Journalism.

- Immigration Act, 2014: Whereas previously, citizenship could not be removed if it would leave an individual stateless, the act permitted the removal of citizenship from "naturalised citizens" if it was reasonably expected they could obtain citizenship elseware, technically leaving them stateless.

Legal statelessness

The legality of such measures within the context of international law is a complex debate.

In 2013, the UK government lost a case at the Supreme Court to strip British citizenship from an Iraqi-born man, who would consequently be rendered stateless. The judge pointed out it would contradict the 1961 Convention of the Reduction of Statelessness that the UK ratified, as well as the UK's laws at that time.

The government sought to find a loophole in the ruling with the 2014 act, where an individual could be made stateless if they might have recourse to another nationality.

This, however, has been disputed by Professor Guy Goodwin-Gill, a leading immigration lawyer and fellow at Oxford University who wrote that "statelessness is not about options or eligibility, but about the facts here and now".

He also questioned the legality of banning citizens from re-entering the UK if it would impact other states.


Cage says that 20 people had their British citizenship revoked in 2013, most of them Muslims.

Ibrahim Mohamoud from Cage told al-Araby al-Jadeed that some of the cases involved those who had been living in Syria, or had recently travelled there.

The Bureau of Investigative Journalism quoted a former senior Foreign Office official as saying that it was an "open secret" that British nationals fighting in the Syrian civil war were increasingly likely to lose their citizenship.

Mohamoud said that such actions were carried out in a "very clandestine way... with no process", without the person being given any specific reasons or evidence.

The British Nationality Act amendment in 2006 states that "deprivation of citizenship orders" can be made without judicial approval.

"The wide remit of the power means that in practice citizenship can be removed for a number of reasons that are not always made apparent to those affected, " said Nisha Kapoor, a researcher at the University of York studying citizenship in the context of the war on terror.

"In some cases [the revoking of citizenship removal] seems to assist in removing accountability from the state," she said.

She cited the cases of dual Lebanese and British national Bilal al-Berjawi and British-born Mohamed Sakr, who were deprived of their citizenship in 2010 and were killed by US drones in Somalia in 2012.

Mahdi Hashi, meanwhile, was tortured and rendered from Somalia to the US after his citizenship was revoked in 2013.

"Citizenship is much more precarious and much less meaningful since the rights that it is supposed to bestow are being hollowed out in multiple ways," Kapoor said.
     Citizenship is much more precarious and much less meaningful since the rights that it is supposed to bestow are being hollowed out.
- Nisha Kapoor, researcher

Double standards?

It is not just those who are seeking to join IS who are charged with terrorism offences in relation to Syria; in March this year a young British-Kurdish woman was charged under the 2006 Terrorism Act for seeking to join a Kurdish women's unit fighting against IS.

On the other hand, a number of former British and US soldiers are thought to have assisted Kurdish forces and have so far not faced charges.

Mohamoud described this as a double standard. Others have also noted contradictions within UK government policy towards those returning from Syria.

A former adviser to the UK government last year told Channel 4 News last year that it was contradictory to prosecute British Muslims who return from fighting in Syria, but allow British Jews to fight in the Israeli army, which critics say should face charges of war crimes in Gaza at The Hague.


Charlie Winters, a researcher for think tank Quilliam, which has worked with the government on their controversial Prevent Strategy aimed at tackling extremism, told al-Araby that people should be treated on a "case by case basis".

"They should be allowed to return [to the UK] if they express an urge to," he said. "They are still citizens who we should not give up on... that would be feeding into the jihadist narrative."

Winters described many fighters who return from Syria as "brutalised and traumatised", and it is these individuals who present a threat to the UK - while also potentially being "important resources" in the fight against extremism. 

He said that, although he viewed some UK government rehabilitation programmes as "extremely effective", there remains "always a problem with resources".

Winters emphasised that rehabilitation programmes needed to be comprehensive and completely dismantle jihadi ideology, not just simply persuade individuals to give up violence. 

The counter-terrorism policies that the UK enacts contrasts with a more holistic approach in Denmark, which aims to rehabilitate, instead of punish, fighters returning from Syria through counselling, education and help into employment.

Returning fighters are also given immunity from prosecution.

Although the move has been politically unpopular with some Danish opposition groups, the plans seem to have had some effect, with just one man from the city of Aarhus known to be heading to fight in Syria in 2014, compared with 31 the previous year.

Cage, along with other groups, has been vocal in its opposition to the government's Prevent strategy, which they say was a cover for surveillance and intelligence-gathering within British Muslim communities. 

There have been cases of relatives informing the police of their fears of family members heading to Syria after concerned government appeals - only for their relatives to be convicted and imprisoned as a result.

The three teenage British girls, Shaimima Begum, Amira Abase and Kadiza Sultana, were interviewed by police - who feared they were being radicalised - two months before their departure.

There have been accusations, echoed by Cage, that their families were not properly notified of this.

In the light of conflicting reports concerning their whereabouts and intentions, their futures and their fates remain subject to the whims of government officials - and the Islamic State group itself.