August 03, 2020Counter-Terrorism Repatriation Citizenship Marginalised and vulnerable groups Accountability and Access to Justice
On 17th July 2020, a UK appeals court ruled Shamima Begum should be allowed to return to the UK in order to fight the decision to remove her citizenship. The following is an article written for Just Security by RSI's Gretta Schumacher, offering a more in-depth look at the impact of this important ruling. For the article itself, click here.
Few women who traveled to join ISIS have attracted as much international attention as Shamima Begum. This may be due to the somewhat emblematic role that Begum has assumed as a young victim of online ISIS recruitment. It may be due to the sense of betrayal that her perceived “defection” has aroused within the United Kingdom, or the perceived callousness she displayed about her experiences during an interview she gave from the al-Roj camp in Syria. It may equally be due to the tragedy faced by Begum and her three children, all of whom were born in Syria and have since passed away, including a newborn baby who died while detained with Begum.
Now, the attention her most recent success before the Court of Appeal in the U.K. received might signify the small glimmer of hope the ruling appears to create for her and other women like her and their children detained in camps in northeast Syria. Still that hope, and whether it offers any real inroads to repatriate other British women, or any of the other women stuck in these camps, must be assessed carefully.
Shamima Begum’s claim
Begum was deprived of her British citizenship on Feb. 19, 2019. She had left the U.K. when she was 15 and travelled to Syria via Turkey to join ISIS. She lived in Raqqa for some time and was “discovered” by journalists in the Al-Hol detention camp in northeast Syria. She has since been moved to Roj camp, the smaller of the two camps which contain a vast number of Iraqi, Syrian and foreign women affiliated with ISIS in north-east Syria. Begum is a British citizen by birth. It is contended by the U.K. government that she is also entitled to Bangladeshi citizenship.
British law permits the Secretary of State for the Home Department (the Secretary of State) to deprive a person of their citizenship, if she is satisfied that to do so “would be conducive to the public good.” The Secretary of State can do so by order (s 40(5)), via letter, provided that the test of her satisfaction is met, without any other kind of public or legal process overseeing it (other than orthodox public law principles), although she may not do so where it would render the person stateless (s 40(4). The person being stripped of their citizenship is entitled to appeal that decision.
That legal right to appeal was the central issue in Begum’s case before the Court of Appeal. In a prior decision, the lower tribunal (the Special Immigration Appeals Commission – SIAC) had ruled that the decision had not rendered Begum stateless. That ruling is, for a variety of reasons, arguable (see here and here), and it remains subject to final appeal following a full factual hearing. SIAC held, secondly, that although Begum was unable to effectively and meaningfully engage in her appeal, this had no legal effect on the decision to deprive her of citizenship or on the decision to decline her leave to enter the U.K.
Finally, SIAC held that, while it accepted the conditions in the detention camp constituted treatment that would be contrary to article 3 of the European Convention on Human Rights (ECHR), it did not consider the government’s decision — on whether Begum’s deprivation had the direct consequence of exposing her to treatment contrary to Articles 2/3 of the ECHR — had been unlawful. The issue for SIAC on the question of the application of the ECHR was confined – it (and the Court of Appeal) is bound by U.K. precedent that the ECHR does not apply to deprivation decisions taken by the Secretary of State (a ruling that could, legally, be subject to challenge). The government applies a “policy” that assesses whether stripping someone of their citizenship will have the direct consequence of exposing that individual to unlawful treatment (in line with the ECHR test on non-refoulement established in Soering), but does not consider itself legally bound to do so. SIAC, then, was only required to review the government’s compliance with its own policy, and ruled that it had.
On this latter issue, the Court of Appeal determined that SIAC’s view of the legal standard of review it was required to implement was wrong and remitted the entire Article 2/3 issue back to SIAC for consideration. The Court of Appeal considered that SIAC was required to undertake the substantive reasoning on the ECHR itself, and sent the matter back for it to do so.
Accordingly, neither the Court of Appeal nor the SIAC decision substantively or determinatively engages with the question of the human rights implications of the decision to deprive Begum of her citizenship, the question of jurisdiction in respect of deprivation decisions, or the extraterritorial application of the EHCR or other human rights regimes to the conditions in the camps. To that extent, the wider implications of the decision are confined specifically to British women who have been deprived of their citizenship (who may, incidentally, now be in a stronger legal position in respect of a right to return as a result of this ruling than their counterparts who retain their British citizenship).
The Court of Appeal’s decision
Both counsel for Begum and the Government, and Court of Appeal, accepted that Begum was unable to play any meaningful part in her appeal and therefore, her appeal would not be fair and effective. The Court held that, as a legal consequence, it had been unlawful for the government to decline her leave to enter in order to participate in her appeal.
The Court, following lengthy consideration, rejected Begum’s primary argument that the inability of her to obtain a fair and effective appeal should result in that appeal being automatically allowed (with the result that the deprivation decision be overturned).
Having rejected that the appeal should be allowed, the Court was troubled by the government’s proposed alternative, that Begum be forced to proceed with an appeal that would necessarily be unfair or be forced to stay her appeal indefinitely. It dismissed these “solutions” as failing to answer the issue of lack of fairness and effectiveness of her appeal. It similarly rejected a “third course” of action (striking out her appeal with the ability to reinstate it under SIAC rules at a later date) as “merely compound[ing] the unfairness.”
Implicit (and in parts, explicitly) in the Court’s findings is a rejection of the government’s urging on the Court the relevance of the fact that Begum travelled to Syria of her own accord and the notion that her situation may somehow, at some point, change.
Ultimately the Court found that any kind of stay of Begum’s appeal was not appropriate: because it fails to address the risk of onward transfer to Iraq or Bangladesh and the risk of unlawful killing or mistreatment in those countries; and importantly because:
to stay her appeal indefinitely is wrong in principle. It would in effect render her appeal against an executive decision to deprive her of nationality meaningless for an unlimited period of time.
The Court held as part of that finding that the security risk posed by Begum, as far as it went, could adequately be managed by measures available to the U.K. government, specifically she could be charged and arrested for a crime upon her arrival, or the imposition of TPIM notices (measures provided for under the Terrorism Prevention and Investigation Measures Act 2011 which permit the government to control the location, travel and communication of an individual subject to it) where that was not feasible.
Key findings in support of efforts to repatriate
The Court’s reasoning may constitute valuable support for repatriation efforts of British women in four ways.
First, the case is another important recognition that conditions in the detention camps in Syria violate article 3 of the ECHR. It also affirmed the huge barriers to communication with these women and the serious difficulties this creates for advocacy on their behalf. For example, phones are banned in the camps. Research conducted by Rights and Security International documents that women found with phones are often imprisoned and sometimes put in solitary confinement. Even those who risk having a phone are unable to reply consistently and go offline for long periods of time. The Court’s endorsement of this is valuable to ongoing practical questions of fairness for those still held in the camps.
Second, the Court refused to accept the U.K.’s speculative submissions that somehow, at some point in the future, the situation of these women might change to permit their involvement in a hearing. Ironically, the most direct way the situation of the women could improve would be the U.K. government agreeing to work with the Kurdish authorities to repatriate its [former] nationals. That is what the Kurdish Administration administering the camps in Syria has repeatedly asked for, on record. It also points to the fact that there would be no reason why camp authorities would permit access to technological solutions for these kinds of issues, which would eliminate their key leverage in favor of repatriation – particularly where transfer to a third country, whether Iraq or Bangladesh, is unlikely, unsafe, or has been specifically rejected by the country in question.
Third, the Court was clear in its view that the fact Begum had travelled voluntarily to Syria when she was 15 was legally irrelevant to the question of how, if at all, she could gain access to a fair hearing on deprivation. This is a rare example of a Court, in the dealing with a known ISIS affiliate, accepting that the nuance of Begum’s precise situation — how she came to travel to Syria, and what consequences this decision should have for her legally — cannot be determined by anecdote or analogy in advance of her hearing. Lord Justice Flaux notes:
I would be uneasy taking a course which, in effect, involved deciding that Ms Begum had left the UK as a 15 year old schoolgirl of her own free will in circumstances where one of the principal reasons why she cannot have a fair and effective appeal is her inability to give proper instructions or provide evidence.
This is an important step in favor of treating the women who travelled to Syria to join ISIS as individuals, with potentially different stories, different culpabilities, and the legal consequences which follow as reflecting those individualities.
Fourth, the Court took seriously the government’s evidence of the risk to national security Begum posed. Leaving aside the legal issues with the way the assessment itself treated Begum’s radicalization as a child as entirely irrelevant to the ongoing security risk she might pose, the approach of the Court to the U.K. Government’s evidence of that risk is notable. The threat as assessed by the U.K. lay solely with the fact Begum travelled to Syria and aligned herself with ISIS. There was no further indication of – either public or secret – evidence suggesting a broader or more specific threat. The absence of further indication may be for good reasons of practicality. But nonetheless, as a matter of principle Begum is entitled to challenge the case that can be made against her and she is entitled to the benefit of its weaknesses. The Court held that in light of the manageable risk she posed to national security, that did not trump her right to fairly and effectively participate in her appeal.
The judgment has been poorly received by the Home Secretary who has indicated her intention to appeal the decision. But there are good reasons why this finding should be upheld. The Court rightly identified that the legal precedent relied upon by the government to support the notion that deprivation was the only effective way to manage the risk posed by Begum was inapposite. That case concerned a person demonstrably engaged in violent extremism, in respect of whom a full evidential hearing had taken place. In a very real sense, the government was urging the Court to treat the security threat it asserted Begum posed in the same way as if it that threat had been definitively proved; the Court refused to do so.
This is important. The Court did not make an independent assessment of the threat posed by Begum – rather, it took seriously the government’s own evidence and case of what that threat actually was. That is an appropriate treatment of the facts at hand. Here, national security is acting not as a cloak to shield the government from scrutiny, but rather being treated as a relevant consideration of evidence, to be balanced against other, equally relevant and competing factual and legal considerations.
The Court’s conclusion, that the risk can be managed, and that Begum should be brought home, aligns with the wider contextual security assessment of the camps, even though that did not play a part in the hearing. As Rights and Security International’s research has established, there is a far greater security risk, both globally and domestically, from continuing to detain these women and children in these camps. This is both from the ongoing risk of radicalization (particularly to young children in the camps), the use of the camps as a significant grievance in recruitment, and the risk of the camps being overrun or women disappearing entirely. Again, ironically, the risk that Begum’s status could change, and she could go “invisible” was cited by the U.K. government as a reason not to allow her appeal as a result of unfairness. But it is precisely that risk that is the best security case for why the U.K. should repatriate British women, and encourage all other countries around the world to do the same, achieving a controlled and managed repatriation of all the women in the camps and working with the US-led Global Coalition Against ISIS to manage the Iraqi and Syrian women who remain in the camp. Leaving them stranded in Syria and ignoring the security risk does not make it go away – it just exacerbates the threat and potentially puts the world at greater risk overall.
What does this all mean for the women in the camps?
These are valuable aspects of the Court’s reasoning and their import for other similar cases going forward should not be understated. But whether this judgment will result in the actual return of the women (and their children) is another matter entirely. The effect of the ruling on leave to enter may be that that requirement is waived and her leave to enter is granted – but the judgment does not appear to go further, such as requiring the government to take reasonable, practical steps to facilitate her return (which has been a feature in cases from other countries mandating return of women in camps even where subsequently overturned).
Whether this will have any impact on the situation of other foreign women in the camps remains an open question. This is not a silver bullet in terms of a legal solution from a court as to the situation in the camps. It is unlikely there will ever be such a case. However, this constitutes incremental progress, making clear that the current situation of these women simply cannot be a long-term or permanent one – from a human rights, a security, or a geopolitical perspective.
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