The Round Up: Return from Syria and Immigration, Immigration, Immigration…

18 February 2019 by Thomas Hayes

Renu Begum holds a photograph of her sister Shamima, taken prior to the then school girls travel to Syria to support the Islamic State. Credit: The Guardian

Immigration cases have dominated human rights case law this week. However, perhaps the greatest controversy concerned the Home Secretary’s intervention in the case of Shamima Begum. News broke on Sunday morning that the nineteen-year-old had given birth in Syria to baby boy, having travelled to the country to support ISIS as a school girl three years ago.

The Times newspaper’s report earlier in the week that Miss Begum wished to come back to the UK prompted Sajid Javid to tell the same paper that he “would not hesitate to prevent” her return. International law may be an obstacle; Article 8 of the UN Convention on the Reduction of Statelessness 1961, to which the UK is a signatory, prevents a government from depriving an individual of their nationality if it would render them stateless.

However, UK law does permit the removal of citizenship under certain conditions. Section 66 of the Immigration Act 2014 allows the removal of citizenship where that status results from naturalisation, the Secretary of State is satisfied that deprivation is conducive to the public good and there are reasonable grounds for believing the person is able to become a national of another country or territory. The Supreme Court has been happy to allow an individual to become de facto stateless, but not de jure stateless –  Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015).

The key difference in Miss Begum’s case is that she appears to lack citizenship of another country. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453 (Paragraph 70), Lord Bingham cited Sir William Holdsworth’s ‘A History of English Law (1938’), vol X, p 393:

The Crown has never had a prerogative power to prevent its subjects from entering the kingdom, or to expel them from it

Similarly, Laws LJ, at paragraph 39 of the judgement in Bancoult (No 1), stated:

For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen.

Mr Javid may well find that preventing Miss Begum’s return is more difficult than giving a hard-line soundbite to The Times. It is not difficult to imagine a whole array of different grounds on which to challenge such a decision, including her age at the time she left the United Kingdom, positive secondary duties owed under Human Rights law and obligations owed to her child, who appears to automatically inherit British citizenship through his mother.

In other news…

• 1 Crown Office Row’s Sarabjit Singh QC represented the government in a judicial review of circumstances surrounding an application for indefinite leave to remain. The review was brought by a Somali asylum seeker who had been subject to deportation orders after his conviction for wounding with intent – Guled, R (On the Application Of) v The Secretary of State for the Home Department [2019] EWCA Civ 92. G. sought an order compelling the Home Secretary to grant him indefinite leave to remain, his deportation proceedings having extended over 12 years during which time he was diagnosed with schizophrenia. He alleged there was no realistic prospect of effecting his safe removal to Somalia under such circumstances. Ultimately, the Court of Appeal instructed the Home Office to reconsider his application, however it stopped short of granting a mandatory order compelling the Home Secretary to grant indefinite leave to remain.
• Bhandari & Anor v Secretary of State for the Home Department [2019] EWCA Civ 129 – The appeal of a Nepali woman against the decision to refuse her application for leave to remain as a Tier 4 migrant was rejected by the Court of Appeal.  She had paid £9500 to a fraudulent third party in order to secure a ‘Confirmation of Acceptance for Studies’ document after she made what she thought was a valid application to study at King’s College London. Whilst sympathetic to her circumstances, the court found itself unable to support her appeal.
• SB (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 160  The appellant had put forward evidence suggesting his life would be endangered were he returned to Sri Lanka due to purported activities he had undertaken in support of Tamil fighters in the country’s civil war. All his evidence had been dismissed as lacking credibility by both previous tribunals. The Court of Appeal remitted the case back to the First tier Tribunal to go before a different judge.