The United Kingdom Supreme Court is to hear the case of Shamima Begum, the runaway British teenager who fled to join ISIS. The United Kingdom’s Court of Appeal, in July, had ruled in favor of Ms. Shamima Begum. The Court also allowed an appeal from the Home Office to challenge the decision in the Supreme Court.
Shamima was born in England to Bangladeshi parents. At the age of 15, she boarded a flight to Istanbul, in an attempt to reach Syria to swear allegiance to ISIS. She arrived in Syria in February 2015 and married Dutch-born convert Yago Riedijk, a convicted terrorist.
Four years later, Shamima resurfaced following an interview with The Times. At the age of 19, she was found in a refugee camp in north-east Syria. She revealed she was nine months pregnant and hoped to return to the UK to raise her child. She also stated that she had no regrets of joining ISIS.
Soon after her child’s birth, the UK government served notice to strip Begum of her citizenship through a deprivation order. Home Secretary Sajid Javed informed her parents that Begum could apply for Bangladeshi citizenship. Later in March 2019, her family challenged the decision, stating that it was unfair.
In May 2019, Begum applied for “leave to enter” [LTE] in the UK. This is a procedure under which a person who is neither a British or Commonwealth citizen, can apply to enter the UK on a conditional basis. The UK government rejected her application and there was an appeal against this decision. In October 2019, Begum appealed against the decision of the Home Office to revoke her citizenship and prevent her from returning to London. She alleged that she would be “stateless” and that the decision would risk “death, inhumane or degrading treatment”.
What happened in the Trial?
The appeal concerned the decision of the Secretary of State to (i) deprive Begum of her British citizenship (“the deprivation decision”); and (ii) refuse her application to leave to enter (“LTE”) the UK to pursue her appeal against the deprivation of citizenship before SIAC. This was a challenge to this decision by way of an appeal to SIAC. This was under s.40A of the British Nationality Act 1981 and s.2B of the Special Immigration Appeals Commission Act 1997.
In February 2020, SIAC issued three preliminary findings based on a hearing made earlier in October 2019. SIAC held that (i) the deprivation order did not make Begum stateless as she was entitled to Bangladeshi citizenship; (ii) the deprivation order did not breach government policy on breaches of human rights overseas – that is a breach of Art 2 or 3 of the European Convention of Human Rights (ECHR); and (iii) it did not matter that she could not have an effective or fair appeal in her current circumstances.
A right to appeal against these findings could only arise when there was a final determination made by SIAC. Also, these findings could be challenged only through judicial review. Permission of judicial review was granted on issues (ii) and (iii). Moreover, permission to appeal against the LTE was also granted.
The (iii) finding by SIAC acknowledged the “unfair” and “ineffective” nature of her circumstances but still concluded against Begum. Much of the Court of Appeal’s [CA] analysis revolved around this issue alone [Para 92, CA]. However, Flaux LJ rejected the government proposed that unfairness was a result of Begum’s own doing. Similarly, the court was also critical of allowing her to appeal on the sole basis that she couldn’t play a meaningful part of it. This led the Court to consider an alternative – by allowing Begum the LTE to take part in her appeal.
Despite blatant blandishments of Sir James Eadie QC, representing the government, Flaux LJ held that the “only way in which there can be a fair and effective appeal is to allow the appeals in respect of the [LTE]” [Para 44, CA]. Acknowledging the potential security concerns, his Lordship stated that these concerns could be managed inside the UK by the relevant authorities – per se the Security Service (SS) and the Director of Public Prosecutions (DPP), using a TPIM – a legal order from the Home Secretary, which can place an individual, considered to pose a security threat but cannot be prosecuted or deported [Para 66, CA].
For granting Shamima LTE the UK, she will either need a passport or travel document – neither of which is available to her. The CA appears to have proceeded on the basis that Begum would be able to get a Uniform Format Forum (UFF) travel document from the Kurdish authorities. Whether this can take place remains to be seen. The Home Office has appealed to take the matter to the Supreme Court.
Besides, the prospects of her returning and stay once back remains slim. As stated earlier, Begum did not appeal to the finding of her being a Bangladeshi citizen. This, thus, throws out her argument of statelessness. But to keep her British citizenship, she has to establish she no longer poses a security threat, or that her human rights were not violated as per finding (ii). Yet, the challenge of the situation is that once she arrives back in the UK, it would be impossible to remove her. This is because she would have no basis to return to Syria, even Bangladesh. This is because the Bangladeshi authorities have confirmed they will not allow her to enter Bangladesh.
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