The Round up: Begum, knife crimes, Tamil Tigers and disability discrimination

25 February 2019 by

In the news 

This week has been dominated by Shamima Begum. On Tuesday last week, Home Secretary Sajid Javid issued an order depriving Ms Begum of citizenship under s.40(2) of the British Nationality Act 1981. The act authorises the Secretary of State to deprive a person of citizenship where this is “conducive to the public good” – but s.40(4) states that the order must not make the person stateless. 

The Home Office claimed compliance with s.40(4) on the basis that Ms Begum could claim citizenship from Bangladesh, in light of her Bangladeshi heritage, until the age of 21. However, on Wednesday, the Bangladesh Ministry of Foreign Affairs released a statement that Ms Begum was not a Bangladeshi citizen, and that there was ‘no question’ of her being allowed into the country. Ms Begum herself told the BBC, “I wasn’t born in Bangladesh, I’ve never seen Bangladesh and I don’t even speak Bengali properly, so how can they claim I have Bangladeshi citizenship?”

As Ms Begum is UK-born and not a naturalised citizen, the special provisions under s.40(4A), which allow the Home Secretary to make a person stateless where their actions have been “seriously prejudicial to the vital interests of the United Kingdom”, do not apply. Therefore, in light of the revelations on Wednesday, the family intend to appeal; such an appeal would go to the Special Immigration Appeals Commission, a highly confidential tribunal for matters of this nature. In the meantime, they have written to the Home Secretary requesting that arrangements be made for Ms Begum’s child to return to the UK, as the child’s citizenship is not in question. 

Six years ago, there was an important case on the meaning of s.40(4): Secretary of State for the Home Department v Al -Jedda[2013] UKSC 62. In that case, Lord Wilson stated at [32] that an inquiry under s.40(4)

is a straightforward exercise…it is whether the person holds another nationality at the date of the order.

By its failure to insert express words, such as “in circumstances in which [s/]he has no right immediately to acquire the nationality of another state,” Parliament failed to indicate its intention for anything stronger than this ([33]). In light of Lord Wilson’s dicta, Ms Begum’s hypothetical right to apply for Bangladeshi nationality may not provide the Home Secretary with a valid defence.

However, the matter will be more complicated if the Home Secretary can establish that Ms Begum’s citizenship remains intact on the basis that she has Bangladeshi citizenship by birth automatically, which has not lapsed as she is not yet 21. These issues were considered in the case of E3 & N3 (Exclusion : Preliminary issue) [2018] UKSIAC SC_146_2017 .

If the Home Office does lose the appeal, its next option may be to issue a temporary exclusion order under the Counter-Terrorism and Security Act 2015, allowing Ms Begum to return on strict licence conditions. On her return, it would be a matter of speculation what the government will charge her with, although membership of a proscribed organization, in contravention of s.11 Terrorism Act 2000, seems a likely choice. Only approximately 40 of 400 individuals suspected of ISIS involvement who have so far  returned to the UK have been successfully prosecuted, so there would be no guarantee of a successful prosecution in Ms Begum’s case. No doubt more developments will follow this week. 

In other news: 

  • Measures proposed by Sajid Javid to tackle knife crimes under the Offensive Weapons Bill have been challenged by human rights groups including Liberty, Kids 4 Law, and the Children’s Society. The objectors argue that the measures will apply disproportionately to BAME children. 
  • It has been reported that the CIA gave details of Ammar al-Baluchi’s treatment at Guantanamo to the directors of the Hollywood film Zero Dark Thirty, despite withholding such details from al-Baluchi’s defence team. The Guardian have released a documentary, The Trial, on al-Baluchi’s case. 

In the courts 

Strip-searching of female prisoners was investigated in the Corston Report in 2007. Baroness Corston noted its effects on vulnerable women, making them feel “embarrassed, invaded, degraded, uncomfortable, vulnerable, humiliated, ashamed, violated, and dirty”, and recommended its reduction to an absolute minimum. A case this week notes a failure by HM Prison Service to put her recommendations into practice: 

  • LW & Ors v Sodexo Ltd & Anor (Rev 1) – one transgender (FTM) and three female prisoners were subjected to unlawful strip searches at HMP Peterborough in July and September 2017, a prison run by the private contractor Sodexo Ltd. They brought a claim under s.6(1) of the HRA 1998 against the Secretary of State for Justice (and Sodexo), alleging breach of Article 3 and Article 8 ECHR, as well as PSI 07/2016 ‘Searching the Person’. The trial judge found no breach of Article 3, but a systemic and serious breach of Article 8 and PSI 07/2016 by Sodexo, and a systemic breach likewise by the Secretary of State for Justice, having failed to comply with his duties of monitoring and supervision under s.4 of the Prison Act 1952. 

There were also cases about asylum-seekers: 

  • KK (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 172 – in this case, the First Tier Tribunal had allowed asylum for a Sri Lankan appellant, who had been involved with the Liberation Tigers of Tamil Eelam, smuggling of Tamils into the UK, and demonstrations in UK capitals. The FTT judge allowed the application on the basis of 2016 Home Office Guidance noting the resurgent risk of torture, abduction, and police brutality against Tamils perceived to support LTTE returning to Sri Lanka. This was overruled by the Upper Tribunal, on the basis that it deviated from the guidance in GJ & Others (post-civil war: returnees) Sri Lanka [2013] UKUT 319, and therefore disclosed an error of law. The Court of Appeal restored the FTT judge’s decision, recognising the change of circumstances in Sri Lanka. 
  • Omar & Ors v The Secretary of State for the Home Department[2019] EWCA Civ 207 – a challenge was made to the lawfulness of the International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017. These regulations were made to give effect to Article 28 of the EU Dublin III Regulation (2013), for assigning jurisdiction over asylum-seekers. This followed the CJEU case of Chodor, which required Member States to implement a list of objective criteria for what counts as a ‘risk of absconding’ under Article 2(n) of Dublin III. The judge rejected the challenge, finding the regulations both lawful and proportionate. 

And a case about disability discrimination: 

  • McNutt v Transport for London[2019] EWHC 365 (Admin) – in this case, a wheelchair user and her friend were about to get in a taxi at a taxi rank. Before unlocking his wheelchair ramp, and before allowing the two to board, the taxi driver turned on his taximeter. The wheelchair user and her friend were very upset and used a different taxi; a caution was brought against the taxi driver by TfL for violation of s.165 of the Equality Act 2010, which prohibits anti-disability discrimination by taxi drivers. The taxi driver sought to challenge on the basis that an offence under s.165 could not be completed without the disabled person entering the vehicle; this was rejected by the judge, as it would prevent the statute from tackling the mischief it was intended to tackle.  

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