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Guernica Blog Series

Shamima Begum loses her appeal against the removal of her British citizenship and her right to return to the UK



On 22 February 2023, the UK Special Immigration Appeals Commission (SIAC) dismissed Shamima Begum’s appeal against the UK government’s decision in 2019 to deprive her of her British citizenship and prevent her from returning to the UK. Shamima Begum travelled to Syria in 2015 as a 15-year-old schoolgirl to join Daesh/ISIS.


Ms Begum appealed the decision to strip her of her British citizenship. She argued that the decision was unlawful as it did not consider whether she had been trafficked as a child.


In its judgement the SIAC ruled that while there was a credible case that Ms Begum was a victim of trafficking and sexual exploitation when she went to Syria in 2015, the Home Secretary did not act unlawfully when he deprived her of British citizenship.


This case is an important one. It concerns the interests of national security, the deprivation of nationality and human trafficking. As per the Commission’s judgment:


“It is an appeal about fundamental principles, rights and obligations. These are matters of the highest importance. British citizenship is a fundamental entitlement and carries with it rights and privileges of huge importance to the individual, in particular the right of abode in this country.


The rule of law is equally important, placing at the heart of our constitutional settlement ever since Magna Carta, the right of the subject not to be outlawed or exiled “except by the lawful judgment of [her] peers and the law of the land” (clause 39). Last but not least in this catalogue comes the duty of Government, acting for these purposes through the Secretary of State, to uphold and safeguard the national security of the United Kingdom.” (Judgment, paragraph 2)


Statelessness


When the Home Secretary deprived Shamima Begum of her British citizenship in 2019, he did so on the assertion that she had the right to Bangladeshi citizenship through her parentage and nationality laws. However, Bangladesh denies responsibility for her and has said that she would be executed if she goes there.


It is quite clear that Shamima Begum is now stateless. It has been argued that she is exiled and alienated, with no right to reside in any country. As per the Commission’s Judgment, citizenship “carries with it rights and privileges of huge importance to the individual, in particular the right of abode.”


Trafficking of a child for sexual exploitation


At paragraphs 219-226 of its judgment, SIAC ruled that there was “credible suspicion” that Begum was recruited, transferred and then harboured for the purpose of sexual exploitation. Consent is not a relevant consideration when looking at the decision she took to travel to Syria. Given that she was a child at the time, her decision could not have been classified as voluntary according to the law.


SIAC also noted the Secretary of State’s ISIL Statements which recognise that female recruits, including children, are destined to be “married off” to act as brides for ISIL fighters and to provide the next generation. SIAC also accepted that Ms Begum was radicalised and that that must have happened, at least in part, through internet research and grooming whilst she was in the United Kingdom.


SIAC confirmed that the Home Secretary had not considered this when making his decision to strip her of her citizenship. SIAC nevertheless found the Home Secretary’s decision to be lawful.


Shamima Begum’s lawyers argued that the failure of the Home Secretary to consider that she may have been a victim of trafficking rendered the decision unlawful on public law grounds and in breach of Article 4 of the European Convention on Human Rights (the prohibition of modern slavery, human trafficking and forced labour).


SIAC rejected this. It confirmed that the Home Secretary has a wide power to deprive individuals of their citizenship where issues of national security are at hand, and that there is no explicit requirement on her to consider issues of trafficking.


Despite this, however, the Commission recognised that, “national security is not an absolute imperative. It does not trump everything else. It must be weighed against fundamental rights and entitlements.” This necessity to weigh the decision against ‘fundamental rights and entitlements’ would naturally encompass the fundamental right not to be trafficked or subject to exploitation. The two positions seem somewhat inconsistent. Whilst the Commission found that there is no explicit requirement on the Home Secretary to consider issues of trafficking when making her decision, there must be an implicit requirement, and one would expect the balancing act to weigh strongly in favour of a child who was trafficked for the purposes of sexual exploitation.


There are complex legal issues at hand in this case, and a wider context of other individuals in a similar position who would be affected by the judgment in this case. This is unlikely to be the end of the road.

Isabella Kirwan

Pupil Barrister Guernica 37





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