Shamima Begum has lost the latest round in her legal battle against the decision to strip her of her British citizenship and exile her abroad. The Special Immigration Appeals Commission that heard her case concluded that she was a victim of trafficking, which was not something the Home Secretary who took the decision to strip her of her citizenship had considered at all, but that, nevertheless, the decision was lawful.

The Commission also rejects arguments that other omissions in the rushed decision-making process rendered the decision unlawful or that the Home Secretary had prejudged the decision. The legal issues are meaty ones and it seems likely that the case will go further. The trafficking dimension means the case may ultimately need to go to Strasbourg.

Background

I felt sick reading the determination. Paragraphs 74 to 93 set out a chronology of how Begum came to be radicalised and allowed to leave the country. She was 15 when stole her sister’s passport and headed to Syria. Her school was aware of her radicalisation. The police interviewed her beforehand and came to the “somewhat myopic” conclusion she was not at risk. They gave her a letter to hand to her parents, which of course she never did. As Mr Justice Jay says:

“putting the matter at its very lowest, there is an arguable case of failing to take reasonable preventative measures directed against the police, the school and the local authority.”

Para 92

She was “married off” to an ISIL fighter on arrival, spent much of the next four years pregnant and watched her three children die in infancy. “Whatever the extent of her ideological commitment before she left in February 2015”, the judge concludes, “Ms Begum could not have had any inkling of how much personal suffering she was destined to endure” (para 93).

The sensationalist media coverage of Begum’s case then brought her into the public eye. The tribunal records that this led to a very rapid decision in her case, which contrasts with the time taken in other comparable cases going on at the same time. The reality was that the team at the Home Office responsible for citizenship deprivation cases “was under pressure from the Secretary of State to make a decision in Ms Begum’s case as soon as possible” (para 153).

Was Shamima Begum trafficked?

The tribunal found there was a credible suspicion that Shamima Begum had been trafficked to Syria for the purpose of sexual exploitation (para 219-226). Consent is irrelevant where the person is a child, as Begum was at that time. Her travel to Syria cannot therefore be said to be voluntary in a legal sense. This is something the Home Secretary of the day, Sajid Javid, did not consider at all at the time he made the decision to strip Begum of her citizenship.

However, this did not help Begum. Her lawyers argued that the failure to take into account the trafficking dimension to the case rendered the decision unlawful on classic public law grounds and also a breach of Article 4 of the European Convention on Human Rights, which protects against trafficking and forced labour. The tribunal rejects this submission on the basis that the power of citizenship deprivation is an incredibly wide one with no explicit requirement to consider issues of trafficking. The Home Secretary was, apparently, entitled to focus on national security to the exclusion of all other considerations.

Unless I’m missing something, this seems like a highly questionable basis for the Commission’s conclusion. The Commission itself says this at paragraph 5 of the determination:

“National security is not an absolute imperative. It does not trump everything else. It must be weighed against fundamental rights and entitlements.”

As the Commission also says at paragraph 260, it is lawful for a public authority to consider something and decide to give no weight to it. But in this case, the Home Secretary did not consider it at all. The conclusion that the decision was unlawful therefore seems inescapable.

The Commission is critical of the approach adopted within the Home Office to the idea of what amount to ‘voluntary’ conduct, characterising it as an inappropriately ‘all-or-nothing’ approach (para 288). Similarly, the Commission expresses unhappiness about the Home Office “downplaying of the significance of radicalisation and grooming” (para 289). Again, these expressions of sympathy are of no material assistance to Begum. The Commission takes the view that the earlier Supreme Court judgment from 2021 prohibits the Commission from making its own judgments and therefore interfering with those of the Home Secretary:

“Ultimately, although many right-thinking people will strongly take issue with the assessment of those advising the Secretary of State, the Commission has come to the conclusion that the assessment that Ms Begum’s travel was voluntary cannot be impugned on the application of administrative law principles in these appellate proceedings.”

Statelessness

A person can only normally be deprived of their British citizenship if this would not leave them stateless. The Commission has previously already found that Shamima Begum, who was born a British citizen in the United Kingdom, was a citizen of Bangladesh because of her parentage and the nationality laws of Bangladesh. It was therefore possible on the face of the statute to take her British citizenship away from her.

Bangladesh has always denied responsibility and says she will be executed if she goes there.

Now that Shamima Begum has turned 21, it is accepted that she is not in fact a citizen of Bangladesh. She is therefore stateless now. But the Commission was only considering the position back in 2019 when the decision was made and she was not formally stateless at that time.

There were two things that the Home Office did not consider in 2019. One was the risk that those responsible for Shamima Begum, the Autonomous Administration of North and East Syria, might have tried and send her to Bangladesh, where she would have been very badly treated. The other omission was the eventual statelessness that Begum would experience once she turned 21.

Neither omission is considered by the Commission to render the decision unlawful.

Other issues

The Commission rejected the submission that Begum should have been afforded an opportunity to make submissions prior to the decision being made to deprive her of her citizenship.

The submission that the Home Secretary had prejudged the decision in the Begum case was dismissed. Days before making the citizenship deprivation decision, Sajid Javid wrote an article for the Sunday Times entitled ‘If you run away to join Isis, like Shamima Begum, I will use all my power to stop you coming back‘. The Commission decided that a “fair and informed observer” would be aware that politicians “often deploy bullish soundbites to get their overall message across” and might well have what is euphemistically described as “a policy preference in relation to the exercise of broad statutory powers” (para 357). However, a Home Secretary receives “detailed submissions and briefing notes from their officials” which must be “fair and balanced”.

Yet the Commission also found that the notes in this case were incomplete and partial. So that’s not very reassuring.

Begum’s lawyers observed that hundreds of comparable individuals had returned to the United Kingdom — presumably because they were not so unlucky as Begum that they happened to possess another nationality, meaning that they could not be stripped of their British citizenship — and there had been no terrorist attacks attributed to them. They argued that the risk posed by Shamima Begum had therefore been overstated. The Commission had no truck with this, essentially concluding that the assessment of risk was for the Home Office.

An argument on the public sector equality duty was also rejected, as was an argument based on Article 8 of the European Convention on Human Rights.

Conclusion

One take away from the determination is the role of the institution of the Home Office rather than the person of the Home Secretary of the day in the whole affair. The Supreme Court judgment from 2021 was based on the legal and constitutional fiction that the Home Secretary, whoever they may be, is personally entrusted by Parliament to make judgments of this nature. The reality emerging from the Commission’s determination is that the institution of the Home Office was responsible.

The Home Office is a complex beast consisting of multiple organs of varying importance, each of which is in turn composed of individual cells. The security services play a role, the policy making people play a role, the operational team plays a role and they are all informed by departmental culture. Sajid Javid was the Home Secretary who signed the papers depriving Shamima Begum of her citizenship. His role seems to have been to read sensationalist media stories about Begum, write an article for a major newspaper saying he would prevent Begum and others like her from returning to the UK and then pressurise his department to rush the paperwork through. He has since then wrung his hands about all this in public but does not emerge from this determination with much credit.

The trafficking dimension to the case and the complex legal issues around justiciability of the European Convention Against Trafficking, state obligations and the meaning and significance of ‘voluntary’ conduct all make it seem to me likely that Shamima Begum’s case will eventually head to Strasbourg. Appeals to the Court of Appeal and Supreme Court would be necessary first.