The Court of Appeal has dismissed an appeal from Shamima Begum challenging the Special Immigration Appeals Commission’s decision that the deprivation of her British citizenship was lawful. I recommend reading Colin’s write up of that SIAC decision. This decision is Begum v Secretary of State for the Home Department [2024] EWCA Civ 152.

Background

Ms Begum was born in Bethnal Green London in 1999, a British citizen. In February 2015, when she was a 15 year old child, Ms Begum travelled to Syria with two other girls, having been encouraged to do so by another friend who had already made the journey to join up with the terrorist organisation ISIL.

Ms Begum’s school had raised concerns about precisely this happening but the police decided that there was no such risk. Ten days after arriving in Syria, the 15 year old was “married off” to an older Dutch national man. Over the next four years she gave birth three times and each baby died.

After the collapse of ISIL in January 2019, Ms Begum surrendered and was captured by the Syrian Democratic Forces and taken to Al-Hawl refugee camp in Syria.

On 14 February 2019 the Home Secretary approved a policy which said that “We accept that individuals who have been radicalised as minors and travelled to Syria or Iraq, or who, whilst a minor, have been taken to Syria or Iraq by their family, are first and foremost victims”.

Following a series of media interviews with Ms Begum in February 2019 on 19 February 2019 the Home Secretary made a deprivation decision to remove her British citizenship. Ms Begum also held Bangladeshi citizenship through her parents, but this was lost when she was 21 years old, after the British citizenship deprivation decision had been made.

Ms Begum appealed the decision of 19 February 2019 and separate litigation then followed about whether Ms Begum would be allowed to return to the UK for her appeal. This was dismissed by the Supreme Court on 26 February 2021 and so the appeal proceeded with the appellant unable to give evidence or by physically present.

SIAC made a finding of fact that there was a credible suspicion that Ms Begum was trafficked to Syria for the purposes of sexual exploitation as a child. SIAC also found that there was an arguable case that there had been a failure to take preventative measures while she was still in the UK on the part of the police, the school and the local authority. Despite these findings of fact, her appeal against the deprivation decision was dismissed on 22 February 2023.

This decision from the Court of Appeal is the onward appeal from that.

Grounds of appeal

There were five grounds of appeal. The first was that under article 4 ECHR (the prohibition of slavery), the Home Secretary was required to consider whether Ms Begum was a victim of slavery, whether there had been failures by the UK to protect her from this, and what legal obligations were owed to her. The deprivation decision impeded the ability for the Home Secretary to meet those obligations and was unlawful on that basis. It was also argued that there was a duty to bring Ms Begum back to the UK under article 16 of ECAT (the Council of Europe’s Convention on Action against Trafficking in Human Beings).

The Home Secretary argued on this point that article 4 did not apply to Ms Begum as she was outside the jurisdiction of the UK for the purposes of the ECHR. The Home Secretary argued that SIAC erred in not deciding this point.

The second ground of appeal was that under common law, the trafficking issue was a mandatory and relevant consideration to whether it was conducive to the public good and proportionate to deprive Ms Begum of her citizenship, and the failure to consider this was unlawful.

The third ground of appeal was that the deprivation decision was unlawful as the Home Secretary failed to consider whether the decision to deprive would render her effectively stateless. SIAC had held that the matter was properly considered.

The fourth ground of appeal was procedural fairness. SIAC had held that the requirements of natural justice had been breached through the failure to allow Ms Begum to make representations before the decision. However SIAC had concluded that the outcome would have been the same and it was argued that the legal test had been misapplied.

The Home Secretary argued that SIAC’s approach to procedural fairness and prior representations was flawed and that there was no requirement to give prior notice of a deprivation decision. His position was that there had been no error, rather than there had been an immaterial error.  

The fifth ground of appeal was that the decision was in breach of the public sector equality duty.

The court’s decision

The court rejected ground one, stating that it was not persuaded that there was any substance to the arguments on possible article 4 breaches, and that it did not give rise to a material consideration for the Home Secretary to take into account when making the deprivation decision. The court rejected the repatriation argument on the grounds that she was outside the control of the UK government at the time of the decision. The court said:

We do not accept that an individual who is assessed as presenting a risk to national security must be repatriated, or even that the Secretary of State is required to consider her repatriation, in order to meet obligations which might be owed under the protective duty, the recovery duty or the investigative duty (noting that any putative investigation would concern offences committed by other people, or State failures to protect her, four years earlier). Further, we do not accept that the non-punishment principle extends to a decision to deprive her of her citizenship on national security grounds or that a restitutionary duty exists even arguably on these facts.

On ground two, the common law argument, the court held that the Home Secretary was aware of the circumstances of Ms Begum’s travel to Syria and that it was likely that she was a child victim being exploited for sexual or extremist reasons. It was concluded that Home Secretary did have regard to relevant factors and this ground was also dismissed. The court’s reluctance to interfere with the Home Secretary’s assessment of whether or not her travel to Syria as a child victim of trafficking was ‘voluntary’ remains as troubling as SIAC’s.

The arguments on statelessness for ground three were that although Ms Begum still held Bangladeshi citizenship at the date of the decision, there was no realistic prospect of her going there, not least because she had been threatened with execution by the government. The potential for a breach of article 2 or 3 ECHR in Bangladesh was made clear in the ministerial submission made to the Home Secretary before he made the decision. The court therefore dismissed this ground on the basis that the Home Secretary had taken the matter of her being made effectively stateless into account.

On ground four, the court agreed with the Home Secretary that there was no entitlement to the opportunity to make representations before the deprivation decision. The court also agreed with SIAC that nothing could have said which would have made a difference to the decision.

Ground five, the public sector equality duty argument, was that the Home Secretary failed to consider whether the exercise of deprivation powers is disproportionately applied to British Muslims of certain ethnic minorities and/or has a detrimental impact on relations between Muslim communities and others. SIAC rejected these arguments on the basis that the Home Secretary could rely on an exemption at section 192 of the Equality Act 2010 and the Court of Appeal agreed.

Apparently in the closed judgment it was concluded that SIAC did make some errors of law, however the Court of Appeal was satisfied that none were material to the outcome.

Conclusion

This remains a truly appalling case, and what lies in this young woman’s future should further appeals be unsuccessful is difficult to contemplate. Former Supreme Court judge Jonathan Sumption’s letter to the Guardian a year ago today is worth revisiting: “As a result of the home secretary’s decision, she is stuck in a camp in Syria, with no citizenship anywhere and no prospect of one. Children who make a terrible mistake are surely redeemable. But statelessness is for ever.”