On 22 February 2023 the UK Special Immigration Appeals Commission upheld the UK Home Secretary’s decision to strip Shamima Begum of her citizenship. This analysis of the judgment, focuses on those aspects of the judgment of particular relevance to those working on statelessness.
On 22 February 2023, the UK Special Immigration Appeals Commission, which hears immigration, asylum and nationality cases raising questions of national security, gave two judgments in Begum v Secretary of State for the Home Department Appeal no. SC/163/2019. One is the published, open judgment, the other the secret, closed, judgment which deals with evidence that is not made public for reasons of national security. There are references throughout the open judgment to the judgment in closed.
The case concerns the lawfulness of the UK Secretary of State’s 19 February 2019 decision to deprive Shamima Begum, who travelled to Syria as a child to join ‘ISIL’ of her British citizenship. The circumstances in which the appeal proceeded were less than ideal, [paragraph 13 of the judgment]
[..] for the foreseeable future Ms Begum could not give her solicitors confidential instructions on the merits of her appeal. The Commission having decided that she should not be permitted to advance certain grounds with others being stayed, concluded that Ms Begum’s options were twofold: either to accept that the entirety of her appeal should be stayed until her circumstances changed and instructions could be given; or, alternatively, instruct her legal team to advance her appeal without those instructions. She chose the latter course.
For reasons of space, this analysis focuses only on those aspects of the judgment of particular relevance to those working on statelessness. There is much more in it of interest to those concerned with deprivation of citizenship more broadly.
The relevance of Ms Begum’s statelessness
The Commission, on 7 February 2020, had decided three preliminary issues against Ms Begum. The first was that the then UK Secretary of State was entitled on the material before him to determine that there were not substantial grounds for concluding that deprivation of British citizenship would leave Ms Begum stateless.
Section 40 (4) of the British Nationality Act 1981 provides:
(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
There are exceptions, set out in s 40(4A) of the 1981 Act, but the Commission did not need to consider these because it held, on the evidence before it, that the courts of Bangladesh would apply the letter of the law, which in its view meant that Ms Begum was a national of Bangladesh, whatever the government of Bangladesh might argue before its own courts. There was no appeal against that decision before the Supreme Court in Begum v Secretary of State for the Home Department  UKSC 27, (the subject of my previous blog on the case on the European Network on Statelessness website).
Now that Ms Begum has turned 21, it is accepted that, because of the way Bangladesh’s nationality laws operate, she is no longer a citizen of that country [paragraph 303 of the judgment of 22 February 2023]. But what the Commission is doing in the 22 February 2023 judgment is reviewing the lawfulness of the 19 February 2019 decision to deprive her of her citizenship at a time when, it has held, deprivation would not have left her stateless. Her statelessness now does not change whether that decision was lawful.
The scope of review
In national security appeals against deprivation of citizenship, the Commission is limited by the Special Immigration Appeals Commission Act 1997 s 2D (3) to reviewing the decision of the Secretary of State on public law principles: whether the Secretary of State acted “unlawfully, irrationally or in a procedurally improper way”. This is not a full merits review; the Commission cannot decide the case for itself. The exception to this is that the Commission must determine for itself whether the appellant’s human rights have been breached (paragraph 68 of the judgment of the Supreme Court in Begum).
This is not, as the Commission is at pains to point out [paragraphs 33 to 57, and see summary at 335] exactly the same as a judicial review in UK administrative law. The Commission can consider evidence post-dating the decision, provided it relates to matters occurring before the decision. Thus the Commission could not consider Ms Begum’s statelessness aged 21 because that was a matter post-dating the decision. Evidence can be tested through examination of witnesses in open and in closed proceedings. While applications can be made to call witnesses in judicial reviews, permission to do so is granted very rarely indeed. Understanding the Commission’s jurisdiction is central to understanding the judgment of 2 February 2023.
The 2 February 2023 judgment
Those representing Ms Begum pleaded nine grounds. These can be summarised as:
- The Secretary of State failed to take into account that/undertake proper enquiries into whether Ms Begum may have been a victim of trafficking;
- The decision to deprive was in breach s 6 of the Human Rights Act 1998 with reference to Article 4 of the European Convention on Human Rights because there was at the very least a credible suspicion that Ms Begum had been trafficked;
- The deprivation decision rendered Ms Begum de facto stateless. The Secretary of State failed to have regard to or undertake proper inquiry into this;
- The deprivation decision was procedurally unfair: Ms Begum or those representing her had no opportunity to make prior representations;
- The Secretary of State personally had pre-determined , or a fair-minded, informed order would identify a real possibility that he had pre-determined that Ms Begum should be deprived of her citizenship;
- The Secretary of State failed properly to assess whether Ms Begum posed a sufficient threat to national security to justify depriving her of citizenship;
- The Secretary of State failed to comply with the public sector equality duty imposed by s 149 of the Equality Act 2010;
- The Secretary of State’s national security assessment was irrational and/or, to the extent that Ms Begum poses a risk, less intrusive measures were capable of dealing with it;
- The deprivation decision was disproportionate under UK common law and Article 8 of the European Convention on Human Rights.
Ms Begum lost on all grounds.
The victories that turned to defeat
It was held in relation to ground two there was a credible suspicion that Ms Begum had been trafficked. Contrary to the submissions of the UN Special Rapporteur on trafficking in persons, especially women and children, the Commission was not persuaded that deprivation of citizenship would be treated by the European Court of Human Rights as a punishment within the meaning of Article 26 of the European Convention on Action Against Trafficking in Human Beings and there was thus more than a reasonable prospect that no breach of Article 4 of the Convention would be found. The Commission held that deprivation of citizenship “[…] is a power exercisable to protect the public, not to punish persons who may also be victims” [paragraph 246].
Moreover, the Commission’s decision on ground two had no relevance to its decision on ground one, where it had to defer to the Secretary of State [paragraph 254]. The Secretary of State was not obliged to give weight to Ms Begum’s having been trafficked.
Reviewing the authorities, The Commission held that procedural fairness did require Ms Begum, or those acting for her, to be given an opportunity to make representations prior to deprivation [paragraph 337]. This is a very significant “win”, departing from the judgment of the Commission in Al-Jedda (No 2) v SSHD (SC/66/2008, paragraph 156) on the meaning of s 40(5) of the British Nationality Act 1981 [paragraph 302].
The Commission also took into account that the Supreme Court in Begum had held, contrary to what was said by the Commission in Al Jedda (no. 2) [at paragraph 159 of its determination], that there is no full appeal on the merits [see the Commission decision in Begum paragraph 331].
But the “win” was not enough because Ms Begum had to show that the opportunity to make prior representations would have made a defence in her particular case [paragraph 344].This she could not do, even positing
a hypothetical reasonable and openminded Secretary of State being notionally in office at the relevant time, rather than one who may be deaf to whatever might be said on her behalf paragraph 344].]
In the short time that would have been available to her lawyers (for she could not give them confidential instructions) nothing could have been said that would have made a difference paragraph 345]. The comfort this is likely to give “hypothetical, reasonable and open-minded” Secretaries of State is dangerous.
Ground three: De facto statelessness
Ground three was pleaded as
the deprivation decision rendered Ms Begum de facto stateless because Bangladesh was unlikely to be able or willing to provide her with any practical protection. This was a relevant consideration and/or one in respect of which the Secretary of State failed to undertake proper inquiry.
Many readers of this blog will, like its writer, be disappointed to see the discredited language of “de facto statelessness” rear its head in the grounds. The Commission explains how it was being used [paragraph 297]:
Even if the deprivation decision did not render her technically stateless, it had that practical effect. […] it could not reasonably be deduced or inferred that Bangladesh could or would afford her any sort of protection overseas, and there was no reasonable prospect that she would or could return to Bangladesh for the foreseeable future. Had appropriate inquiry been made of the Bangladeshi authorities at the time, Home Office officials would have discovered that they were disowning Ms Begum and were threatening her with immediate imprisonment or worse.
The ”worse” referred to a breach of Article 3 [paragraph 300].
The Commission was robust: the language of de facto statelessness added nothing to the argument [paragraph 302],
[…] the concept of de facto statelessness, […] carries with it the notion that Bangladesh would fail to afford Ms Begum the full panoply of protections it affords its citizens or nationals. The issue is rather more straightforward. But the Commission does not consider that the labelling matters; it is the substance of the argument that must be addressed. The real point being advanced was that the full impact on Ms Begum was not properly considered because one way or another she could not go to Bangladesh and that meant that there was nowhere for her to go.
The Commission held that Ms Begum failed on this ground because the then Secretary of State had satisfied it that he was aware of the impact on Ms Begum were the deprivation order to be made, including that she neither would nor could go to Bangladesh [paragraph 302].
The Special Immigration Appeals Commission is not for the faint-hearted. It sees secret evidence not seen by the person whose case it is considering or her lawyers. The special advocate who presents her case in those secret proceedings advances arguments she and her lawyers will never hear, and without her instructions or those of her lawyers on that evidence. Therefore when the Commission concludes, “The Commission has found this to have been a case of great concern and difficulty” [paragraph 411] those words are to be taken very seriously.
The Commission held that it had been for those advising the Secretary of State, not for the Commission, to decide that “a 15 year old girl who may have been radicalised and was not ‘self-motivated’ acted ‘voluntarily’” [paragraph 285]. Commenting on that decision it pointed out the limits of its powers [paragraph 293]:
[…] 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.
The law in the UK protects the Secretary of State’s decisions to deprive persons of their citizenship, which are made with increasing frequency. Those challenging such decisions and the Commission, have their hands tied behind their backs.
Shamima Begum is represented by a courageous and skilled legal team: Samantha Knights KC, Daniel Squires KC, Julianne Kerr-Morrison, Ayesha Christie and Tim James-Mathews and instructed by Daniel Furner of Birnberg Peirce. In the closed proceedings Adam Straw KC is the special advocate appointed to (try, given the constraints of the system) to represent her.
Her solicitor has told the media that challenges are being considered. One suspects that the Commission is cheering him on.