Father of Islamic State fighter fails in judicial review claim
19 August 2019
In a case that was described as “the first such case to have come on for hearing before this court” and one that shares many similarities with the tabloid-grabbing story of Shamima Begum (discussed on the Blog here), Mr Justice Pepperall refused permission to bring judicial review proceedings on behalf of an Islamic State combatant whose citizenship had been revoked by the Home Secretary.
A father (Mr Islam) brought judicial review proceedings on behalf of his son (Ashraf) challenging the Home Secretary’s decision to revoke Ashraf’s British citizenship because of his involvement with the Islamic State / Islamic State of Iraq and the Levant (referred to in the judgment as ISIL).
Ashraf was born in London and is a British citizen by birth. He has lived and studied in both Bangladesh and the United Kingdom throughout his life and was studying in Dhaka at the time of his disappearance in April 2015. Shortly after his disappearance, Mr Islam learned that his son had crossed into Syria and joined ISIL.
By a letter dated 17 July 2017, the Home Secretary (at that time, Amber Rudd), informed Ashraf that she intended to deprive him of his British citizenship pursuant to section 40 of the British Nationality Act 1981. The letter stated that it was conducive to the public good to remove his citizenship and that because he was a British/Bangladeshi dual national, such a deprivation would not make Ashraf stateless (which would be a contravention of s.40(4) of the Act as well as wider international law).
The letter was sent to the family home in Bangladesh and was received by the father on 22 July 2017.
After years of silence, Mr Islam heard from Ashraf in May 2018 when a message was conveyed to him through the office of the International Red Cross. Ashraf had been detained in a military prison in Kurdish-controlled northern Syria. The message read:
Please do whatever you can and contact whoever you can to help. It’s been four months for me here and no one knows what’s happening.
Following this communication, the father lodged an appeal at the Special Immigration Appeals Commission (SIAC) challenging the Home Secretary’s decision.
In a written decision, the chairman of SIAC, Elisabeth Laing J, rejected the appeal. She held that there was no evidence that Ashraf knew of the Home Secretary’s decision or that he had given instructions to bring an appeal.
Equally, even if the father had been entitled to bring an appeal on his own behalf, he had delayed for nearly a year since the deprivation decision letter. Accordingly, his appeal was out of time. She made clear that her decision did not prevent Ashraf from appealing the decision himself, however, she would only grant an oral hearing if his solicitors received instructions from Ashraf to proceed with the appeal. These instructions were not forthcoming and therefore no oral hearing took place.
The Status of ISIL Combatants
Pepperall J outlined that the United Kingdom has adopted the policy of depriving an ISIL combatant of their British citizenship, provided that they are considered to have citizenship of another state (as in the case of Shamima Begum). Like Ms Begum, Ashraf was considered by the Home Secretary to have Bangladeshi citizenship. However, whilst the Bangladeshi government has publicly disavowed this in Ms Begum’s case, it has made no representations as to the status of Ashraf’s citizenship.
The evidence was that if the United Kingdom failed to take Ashraf back then the Kurds were likely to hand him over to the Iraqi or Syrian authorities to be tried in their courts, or he would be tried by an ad hoc tribunal set up by the Kurdish group holding him. Conviction in any of those arenas was likely to lead to the death penalty.
The Judicial Review
In May 2019 Mr Islam brought a claim for judicial review of the Home Secretary’s decision on the following grounds:
- The failure of the Home Secretary to implement a “proper policy” in relation to the deprivation of citizenship of British nationals who are overseas and at real risk of treatment in breach of their human rights.
- The Home Secretary had no power to issue the decision whilst Ashraf was not in the United Kingdom and failed to take all reasonable steps to bring the deprivation decision to his attention.
- The Home Secretary failed to facilitate or take proper steps to return Ashraf to the United Kingdom.
Mr Islam sought to have the deprivation decision quashed, together with an order directing the Home Secretary to facilitate Ashraf’s return to the United Kingdom and for the Home Secretary to arrange communication between Ashraf, Mr Islam and his solicitors.
The Home Office took three preliminary points:
- Standing – the claim must be made by Ashraf not Mr Islam.
- Time – the challenge was made out of time given the decision was made on 17 July 2017.
- Alternative Remedy – Ashraf has the option of an appeal to the SIAC.
Pepperall J was not convinced these matters were sufficient of themselves to determine the entirety of the application for the following reasons:
- Standing – the father was not a “meddlesome busybody” (citing Sir John Donaldson MR in R v Monopolies & Mergers Commission, ex parte Argyll Group plc  1 WLR 763), but a “loving father who is deeply affected by the issues he seeks to litigate.” Therefore it was not appropriate to deny him the opportunity to make submissions at the permission stage.
- Time – whilst the claim for judicial review was not filed within three months of the decision (CPR rule 54.5), Pepperall J considered that because the claim was for the alleged failed repatriation of Ashraf, this was an ongoing failure and therefore was not out of time. He also noted that Mr Islam was unaware of Ashraf’s whereabouts until May 2018, whereupon he promptly brought appeal proceedings in SIAC, and upon the SIAC’s decision the Judicial Review proceedings were commenced swiftly.
- Alternative Remedy – whilst Ashraf has the option of an appeal to the SIAC, the SIAC has already held that Mr Islam does not have such an option. Pepperall J also noted that arguments as to Ashraf’s repatriation are not matters for SIAC.
The Deprivation Decision
Mr Islam argued that the test in s.40(2) of the British Nationality Act 1981, which allows the Home Secretary to remove an individual’s citizenship if it is “conducive to the public good” unlawfully waters down Article 7(1)(d) of the European Convention on Nationality 1997 which provides that a state cannot remove an individual’s nationality unless in the case of “conduct seriously prejudicial to the vital interests of the State Party”.
However, Pepperall J did not decide whether this was the case as he considered that it was not properly arguable that Ashraf’s behaviour was not seriously prejudicial to the UK’s vital interests.
Mr Islam further alleged that the Home Secretary’s decision had rendered Ashraf stateless. Pepperall J noted that if that were true — which in the absence of evidence as to Bangladesh’s position he was unwilling to find — it would be a proper ground of appeal against the deprivation decision that can be considered by SIAC rather than the Administrative Court.
Territorial Limits of s.40
Mr Islam alleged, relying on R (Al-Skeini) v Secretary of State for Defence  1 AC 153, that domestic legislation will not generally operate on its subjects beyond the country’s territorial limits and therefore that the British Nationality Act 1981 does not apply to a British subject outside the United Kingdom.
On this point, Pepperall J noted that the British Nationality Act 1981 (unlike the health and safety regulations considered in Al-Skeini) was not concerned with regulating an activity in a foreign country, instead it removed rights enjoyed by a British citizen, primarily the rights to enter, live, work and study in the United Kingdom.
Mr Islam also argued that regulation 10 of the British Nationality (General) Regulations 2003, the regulations that provide guidance on the nature of notice of deprivation of citizenship required by s.40(5) of the British Nationality Act 1981, should be construed such that as not to apply extra-territorially. Alternatively, he contended that the regulation was ultra-vires. In support of this argument, it was further noted that the United Kingdom would be obliged by international law to readmit its citizens if they are deported from the country holding them.
Pepperall J held that these arguments had little merit. He stated that Regulation 10(5)(e), which reads “where notice is sent by post from or to a place outside the United Kingdom…”, clearly envisages that notice can be given to a citizen whilst they are overseas. He added that there is nothing in s.41 or the rest of the act to prevent notice from being served on a citizen who is overseas.
It was further noted by the Judge that the issue of deportation may be relevant to a claim of this nature, however, in the present case Ashraf had not been deported and there had been no indication from Bangladesh as to whether or not they would admit him if such a situation arose. The possibility of such a situation happening in the future was not sufficient for regulation 10 to be ultra vires.
Lack of Action to Repatriate Ashraf
Mr Islam asserted there was an obligation to repatriate Ashraf in order:
- that he can face justice in the United Kingdom;
- to protect him from breaches of his human rights; and
- effectively to challenge the deprivation decision.
Pepperall J held that the first of these was without merit, stating that
any British citizen who commits serious crimes abroad is subject to local justice and cannot simply demand that the British government extricates him from a situation of his own making in order that he can face the more palatable prospect of justice in a British court.
As to the second point, Mr Islam alleged that allowing a Kurdish tribunal to prosecute Ashraf would be a breach of Article 6 of the ECHR. The Judge noted that the Home Secretary has not encouraged the Kurds to prosecute Ashraf instead of handing him over to either Syria or Iraq. Pepperall J further noted that in the absence of evidence of some exercise of authority over Ashraf by British diplomatic or consular agents in Syria
it is not properly arguable that Article 6 imposes any obligation on the United Kingdom in respect of possible criminal proceedings or the possible imposition of the death penalty in the Middle East: R (Sandiford) v Secretary of State for Foreign & Commonwealth Affairs  UKSC 44
As to the third point, this was described as “somewhat academic” given that there is currently no appeal before SIAC and that Ashraf is presently not in a position to enter the United Kingdom. Consequently, the Home Secretary has not refused leave to enter in order to allow Ashraf to prosecute any such appeal. Pepperall J finally noted that the complaint should be made to the Foreign and Commonwealth Office rather than this court. He also noted that as Ashraf is no longer a British citizen, he would first have to overturn the deprivation decision before he could seek to argue that the government had failed to provide appropriate consular assistance to a British citizen.
Mr Islam’s Article 8 Claim
Mr Islam also argued that the deprivation notice had breached his own Article 8 rights.
Pepperall J rejected this claim, relying on the principles set out in R (Maha El Gizouli) v Secretary of State for the Home Department  EWHC 60 (Admin) at  to , another case involving an ISIL combatant who seeks to prevent his extradition to the United States where he may face the death penalty which has now been heard by the Supreme Court.
In the present case, Ashraf was detained in Syria because of his own actions of travelling to Syria and engaging in jihad. The Home Secretary had only deprived Ashraf of his citizenship, this was not an action that had placed Ashraf in peril; his current perilous predicament was due entirely to his involvement with serious criminal behaviour.
Therefore, any emotional distress that Mr Islam is suffering as a result of his son’s current situation was due to his son’s illegal and immoral behaviour and not through any failure of the Home Secretary. Consequently, it was not reasonable to impose a positive obligation upon the United Kingdom to avoid such distress.
This ultimately unsuccessful claim required the Administrative Court to delve into a number of issues arising from a decision by the Home Secretary to deprive an ISIL combatant of citizenship while they are abroad. It it expected that there will be more such cases in the not-too-distant future.
Thomas Beasley is presently working as a paralegal and will commence the BPTC in September 2019.