In the latest development in the litigation brought by Shamima Begum (Begum v SSHD [2024] EWCA Civ. 152), the Court of Appeal (CA) unanimously dismissed an appeal against the decision by the Special Immigration Appeals Commission (SIAC), affirming the legality of the decision by the then Secretary of State for the Home Department (SSHD), Sajid Javid, to deprive Begum of her British citizenship under Section 40(2) of the British Nationality Act 1981. The Court upheld the decision, holding that such deprivation was ‘conducive to the public good’ since Begum was deemed to pose a threat to national security. The CA has also just denied Begum the right to appeal to the Supreme Court.
Background
Begum was born in the UK to parents of Bangladeshi origin. As a 15-year-old child from East London, she travelled to Syria in February 2015, accompanied by two friends from her school, in order to join the terrorist organisation ISIL/Daesh (later ISIS). Within days of her arrival, Begum was ‘married’ to an older man and, in the next four years, gave birth to three children, all of whom have died. After the fall of ISIS in 2019, Begum was captured and transferred to a detention centre in north-eastern Syria and remains there, as a stateless person.
The grounds for appeal
Before the Court of Appeal, five grounds for appeal against the exercise of the Section 40 power were made by Begum.
First, trafficking under Article 4 of the European Convention of Human Rights (ECHR) meant that the SSHD was required to consider: (a) whether Begum was a potential victim of trafficking; (b) whether there had been any failures by the state to protect Begum from trafficking; (c) the legal obligations owed to Begum as a victim or potential victim of trafficking; and (d) that deprivation of citizenship would hinder the state’s ability to discharge those obligations. Having considered these issues, the SSHD then had to decide whether, in the circumstances, deprivation could nonetheless be justified. It was argued on this ground that the SSHD’s failure to consider these matters meant the decision to deprive Begum of her citizenship was in breach of Article 4.
Second, trafficking under common law: the fact that Begum had been/was likely to have been trafficked was a mandatory and relevant consideration in determining whether it was conducive to the public good and whether it was proportionate to deprive her of her citizenship; it was argued that this had not been considered by the SSHD. Consequently, the deprivation decision was unlawful and SIAC had erred in its analysis of this issue.
Third, de facto statelessness: the decision to deprive was unlawful due to a failure by the SSHD to consider whether the decision would render Begum de facto stateless, given that her de jure Bangladeshi citizenship was of no practical value to her. Although SIAC had correctly concluded that this was a relevant consideration to which the SSHD was required to have regard, it had erred in finding that the matter had been properly considered.
Fourth, procedural unfairness, such that the requirements of natural justice should be read into Section 40, and that these requirements had been breached because the SSHD had failed to provide Begum with an opportunity to make representations before his decision to deprive her of her citizenship.
Fifth, the public sector equality duty, namely that the decision to deprive was taken in breach of the duty under Section 149 of the Equality Act 2010 (EA 2010). Furthermore, the SSHD could not rely upon the ‘national security’ exemption provided under Section 192 of the EA 2010.
The decision
In a unanimous judgment, the CA dismissed all five grounds, asserting that “[i]t could be argued that the decision in Ms Begum’s case was harsh; it could also be argued that Ms Begum is the author of her own misfortune. Our only task is to rule on whether the decision made under s. 40 was unlawful” (para 138), demonstrating a distinctly non-interventionist approach in keeping with much of the judicial approach taken in this lengthy litigation.
This restrained approach is of concern in that it highlights the considerable nature of executive power and the difficulty in challenging the fairness or rationality of such decisions. As Colin Yeo, of Garden Court Chambers points out, the outcome was unsurprising as parliament had “delegated to the Home Secretary a sweeping and vague power to remove British citizenship based on the post-holder’s view of what is ‘conducive to the public good.’”
The deployment of the national security argument effectively prevents proper judicial scrutiny of executive power. Although it is undeniable that national security is an important consideration, it was given overwhelming priority in this case, at the expense of other important considerations, such as the trafficking and sexual exploitation of Begum. As a body of UN experts note in their evaluation of the CA judgment, echoing a number of previous assessments by others in the field, “there is a credible suspicion that Ms Begum was recruited, transferred and then harboured for the purpose of sexual exploitation” (UN experts deplore continuing failures of protection for Shamima Begum, 6 March 2024).
The experts note that SIAC’s decision in February 2023 identified a number of relevant circumstances before Begum left the UK, which could count as potential state failures in this regard. These include breaches of the state’s duty to protect and the need to avert serious human rights violations in relation to Begum as a vulnerable child. They observe that these circumstances were never properly investigated. In addition, under the common law argument on trafficking, the CA found that the SSHD did have regard to relevant factors. However, the Court’s reluctance to interfere with the Home Secretary’s evaluation of the ‘voluntariness’ of Begum’s decision to travel to Syria as a child victim of trafficking is a matter of concern.
In affirming the lawfulness of the revocation of Begum’s citizenship, the CA has continued to render her stateless and implicitly approved the creation of a two-tier system of citizenship in which those with dual/multiple heritage cannot access justice and rehabilitation in the same manner that those without such heritage can. As we see in respect of Begum, the eligibility of such persons for citizenship in other countries has limited practical application. Thus, citizenship for those from certain minority racial and ethnic backgrounds is contestable and precarious, with deprivation decisions having a disproportionate effect on those from such communities. In a related point, it is also worth pointing out that the UK is an outlier as far as the repatriation of its nationals is concerned, with significantly lower numbers repatriated in comparison to most other states.
The disproportionate effect can also be seen in the public sector equality duty argument, which relates to ground five of the appeal. Section 149(1) of the EA 2010 provides that:
‘A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.’
It was argued on behalf of Begum that the SSHD failed to have regard to whether the exercise of deprivation powers: (1) was disproportionately applied to British Muslims of certain ethnic minorities, and/or (2) impacts detrimentally upon the relations between members of Muslim communities. In keeping with the SIAC decision, the CA rejected this argument on the basis that the SSHD could successfully rely on the national security exemption contained in Section 192 EA 2010, once again avoiding proper judicial scrutiny of this matter.
The implications of how the disproportionate effect on Muslim communities is felt, particularly in their sense of belonging and security in the context of rising Islamophobia, and broader racial, ethnic and religious tensions, cannot be underestimated. Indeed, the effects of the deprivation were considered by the Office for Security and Counter-Terrorism, quoted in the judgment, who opined that “a decision to deprive Begum of her citizenship […] would likely be considered controversial. [It was considered] that this would particularly be so among British Muslims and Bangladeshi communities, who are likely to view this as a comment on their own nationality status. This also comes in the context of Windrush and Brexit […]’ (para 126).
The courts are tasked with making determinations often in difficult cases of this kind where a balance needs to be achieved between a web of complex legal issues, national security and broader concerns of justice and equity. However, the CA decision affirms that a dual system of British citizenship exists along racialised lines and that citizenship can be revoked by the exercise of an executive power framed in the broadest of terms, “without adherence to principles of natural justice and without independent determination of the merits” (Hickman, March 2024).
Qudsia Mirza is a Senior Lecturer in Law at the Royal Docks School of Business and Law, University of East London
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