Taking Responsibility for those who belong to Australia including women and children from Syrian camps

December 2025

In this blog, Felicity Gerry KC and Sue Milne draw on historical sources and the UK precedent in the Shamima Begum litigation to argue that Australia’s failure to extend protection to nationals who remain stranded in Al-Roj camp in Syria exposes the frailties of the whole concept of legal ‘belonging’ and the rule of law.

The question of who ‘belongs’ to Australia is not a political question but a deeply constitutional one. Recent reports signal that up to thirty-four Australian nationals remain stranded in Al-Roj camp in Syria. Their fate has long been entangled in constitutional challenges to the statutory deprivation of citizenship of Australian foreign fighters, the rhetoric around ‘ISIS brides’, and the politics of who ‘belongs’ to Australia. Such justifications have been used by the Commonwealth Executive to refuse to exercise its discretionary powers and expatriate these people.

Both the failure to extend protection to Australian nationals interred in Syria, and the implementation of grounds for revoking citizenship have turned upon a policy-driven perceived repudiation of that allegiance or desire to belong.  Connectedly, in Alexander v Minister for Home Affairs in 2022 the High Court of Australia found the stripping of citizenship of foreign fighters unconstitutional, the decision did not turn upon finding that the relevant repudiation of allegiance ground was unlawful.

Against this background and drawing on both historical sources and the critical UK precedent in the Shamima Begum litigation, we argue that, similar to the UK, Australia’s failure to extend protection to its nationals exposes the frailties of the whole concept of belonging and the rule of law.

Shamina Begum litigation

In 2020, Felicity and Eamonn made written intervention on behalf of JUSTICE (a UK NGO) in the UK Supreme Court cross appeals in the case of Shamima Begum. The challenge related to the deprivation of Begum’s British citizenship and her procedural rights to a fair and effective appeal, including seeking leave for Begum to enter the UK to take part in her own appeal.  In 2015, as a 15-year-old girl, Begum had been persuaded to travel to Syria from her home in the UK. By the time of the appeal, she was a widow who had lost three children, who all died as infants, and was being detained in the Al-Roj camp run by the Syrian Democratic Forces, where conditions were described as ‘very poor’.

The intervention identified that core constitutional questions had not been addressed by any party to the matter. The intervention arguments included nearly 800 years of law to demonstrate that the essential issue was not one of policy but a question of subjecthood (a term historically relevant to the context of Britain’s constitutional monarchy), that is now known as ‘belonging’ in Australia. We argued that Begum remained a subject of the United Kingdom. That constitutional status meant that under both domestic and international law not only did she have a right to return but there is a duty to protect her by bringing her home. Whilst issues of her allegiance as a ‘subject’ of a constitutional monarchy may (or may not) have been thought about when removing her citizenship, the testing of her constitutional connection to the UK had not been ruled upon. As we said in our written case:

"The nexus between State and subject is not so narrowly confined as to be a mere creature of statute; including such legislation as, at any given time, may govern citizenship and its deprivation. Statutory citizenship is but one form of legal relationship between State and subject. It does not displace ancient common law bonds between the Crown and its subjects: bonds that entitle the subject to rights of due process that are discreet from, and additional to, any rights concomitant with, or incidental to, statutory citizenship. Put another way, beneath the United Kingdom’s inherently mutable statutory veneer of modern citizenship and nationality law lies an ancient substratum of allegiance bonds that are constitutional in character and, as yet, not displaced by the legislature, such as would deprive the judicial branch of its ancient role, as protector of the laws of the Kingdom and, indeed, the Rule of Law."

The principle of allegiance

The principle of ‘allegiance’ traces its heritage to the dawn of the common law. Emerging from the feudal doctrine of fealty that meant a reciprocal relationship whereby the vassal owed an obligation of fidelity and obedience to the lord and the lord owed the vassal a duty of protection and guardianship. Allegiance was owed to the sovereign, as the supreme feudal lord, by his subjects (see Holdsworth, A History of English Law, 3rd ed (1944) vol 9, 72-3; Blackstone, Commentaries on the Laws of England, (1765), bk 1, c 10, 354-355.)  During the thirteenth and fourteenth centuries, the common law recognised as subjects (to whom the principle of allegiance applied), all persons born within the sovereign’s territories (characterised as ‘natural born subjects’). Noting that this issue is also interesting on the issue of birthright citizenship, during the fifteenth and sixteenth centuries, the evidence is clear that jurists defined subjecthood by reference to allegiance. Allegiance is therefore a question for the courts, not politics. In the UK, Shamima Begum’s allegiance has never been decided as her cross appeals were stayed (postponed). In Australia, the allegiance of Australians has never been tested. As set out below, when asked to consider the allegiance of similarly situated Australian women and children in Syria, Australian courts stopped on a preliminary issue.

The role of allegiance as the gravamen of subjecthood, at common law, was restated and explained in 1608 in Calvin’s Case (1608) 7 Co Rep 1a. Sir Edward Coke affirmed that, for natural born subjects, allegiance was indelible and comprised reciprocal duties: the subject owing to the King (personally rather than in the capacity of the body politic) ‘his true and faithful ligeance and obedience’, while the King was required ‘to govern and protect his subjects’. As allegiance for natural born subjects was indelible, such persons were not aliens and the reciprocal duties of allegiance endured, regardless of whether they remained in the sovereign’s territories. Shakespeare understood the concept when his Richard III called for a horse without answer – he had lost the allegiance of his subjects.

Practical questions of allegiance

The facts of an individual’s allegiance were tested by UK courts in the case of Joyce when a Nazi propagandist was tried for treason after the Second World War. Joyce argued that he was not a British subject so could not be convicted.  The evidence presented to prove his allegiance to the UK was his possession of a British passport on arrest (which may well have been false). The appeal court held that this tenuous connection was sufficient for him to be hanged. More pertinently, Joyce’s actions in support of the Nazi Party did not displace the duty of State protection for a subject. When we compare the case of Joyce to that of Begum, we can see that her connection to the UK is greater.  Begum’s parents continue to reside in the UK, and she was schooled in the country. Begum travelled to Syria as a minor and is believed to have been groomed or even trafficked from the country. Relying on the case of Joyce, Begum’s allegiance, and in turn her subjecthood, remains, and it is at least arguable that the UK has a duty to restore Shamima to her home in Birmingham, with the loss of the constitutional duty to protect her (as a subject) likely being unjustified in her circumstances.

The lost opportunity in Begum’s case

Her subjecthood not having been properly tested in law, we argue that Shamima Begum was constitutionally entitled to return. Several questions asked in the hearing identified that their Lordships understood this to be an issue of constitutional law but, the parties had argued policy issues and ours was only an intervention. In the end, the Court stayed (postponed) the matter, essentially making no decision on a constitutional question of allegiance, giving deference to the Executive on questions of national security, with their decision released to the public in an 8 minute video. This outcome was described by the Court as ’not perfect,’. As Felicity wrote near the time: ‘The fear for women realised – when you need the protection of the courts, they can fail.’ An argument that the UK owed Begum a duty of protection as a victim of trafficking under the European Convention on Human Rights and Council of Europe Convention on Action against Trafficking in Human Beings was later dismissed by the Court of Appeal, on hearing an appeal from SIAC (Special Immigration Appeals Commission) dismissing an appeal on the decision to strip Begum of her citizenship.  This argument did not, however, address the duty of protection that arises from a subject’s constitutional allegiance.

Progress in Australia on belonging

Australian law is perhaps even clearer than the UK stay. In Love v Commonwealth the High Court has confirmed the existence of a constitutional ‘belonging’ which cannot be removed by the Executive on policy grounds. In Love, Indigenous Australians were identified as one obvious class of people who belonged to Australia. More recently, in Alexander v Minister of Home Affairs in 2022, the High Court appears to accept that the statutory deprivation of citizenship may not necessarily render a person an ‘alien,’ nor remove their constitutional right to remain and re-enter the State, this could extend also to the extant right of State protection.

Remedies for the Australian Women and Children in Syria

As of November 2025, debate around the swift or staged repatriation of women and children to Australia from north-east Syria remains a live and fraught issue. While Australian government sources deny immediate plans, credible reporting suggests State and Territory officials are actively preparing for reintegration. Advocacy groups, including Save the Children expressed frustration with a government stance that privileges risk aversion over legal accountability and humanitarian principle. A few women and children have very recently taken matters into their own hands and have returned to Australia after smuggling themselves out of Syria.

As our intervention explained in 2021, the appropriate remedy for the Australian women and children still in Syria is one of habeas corpus. Although the Federal Court’s 2024 refusal of habeas corpus grounded its reasoning on a lack of physical control over the detainees, this technicality appears insufficient against evidence that regional authorities are prepared to facilitate repatriation on request. It also leaves the constitutional question of allegiance and subjecthood unanswered.

Conclusion

The symbolic and practical invocation of ‘allegiance’ or ‘belonging’ as both a justification for deprivation and a barrier to repatriation cannot evade the requirement for due process and lawful evidence. Notions of ‘transferred allegiance’, that women and children are now permanently aligned with ISIS, are both empirically dubious and legally inadequate unless tested through judicial process. The courts’ role is to determine the lawfulness of government action that includes identifying the boundaries between statutory citizenship and the constitutional status of belonging. However, the Australian High Court, like the UK Supreme Court, has been reticent to explore this beyond the immediate case before them.

The risk of arbitrary deprivation is heightened in contexts where those affected may have been trafficked, manipulated, or otherwise acted without true agency, raising urgent non-punishment and protection principles under the emerging right to non-punishment under international human trafficking law.

The failure to repatriate those who are subjects/belong or to facilitate judicial evaluation of their claims to protection is an unconstitutional choice. The writ of habeas corpus, as advanced in the  litigation before the Federal Court of Australia, and raised by us in Begum, presents a potent, although so far insufficiently tested, remedy to compel State action. The 17^th century Scots understood the value of belonging in Calvin’s case. Modern Australians are also entitled to greater engagement with the concept of belonging as opposed to citizenship, even for subjects they might not like to have home.

Ultimately, our research in Begum exposed a legal imperative for the UK and Australia to repatriate its people from Syrian camps: Executive action, however cloaked in national security rhetoric, cannot frustrate core constitutional protections which are reciprocal in nature. The notion of ‘belonging’ is neither abolished by absence nor overwritten by mere suspicion of transferred allegiance. Where Executive power blocks legal process and abandons citizens to statelessness or perpetual limbo, the State risks transforming belonging into a hollow status, shorn of its essential guarantees.

_{Image by Maxim Berg on Unsplash}