Court of Appeal allows Shamima Begum’s appeal

17 July 2020 by Marina Wheeler QC

Begum v Special Immigration Appeals Commission and the Secretary of State for the Home Department [2020] EWCA Civ 918

Early last year, after ISIL was dislodged from Raqqah, Shamima Begum was discovered in a refugee camp in Syria. When she expressed a wish to return home to London’s Bethnal Green, Her Majesty’s Government wasn’t welcoming. She had left to join ISIL and HMG did not want her back. It considered her a serious risk to national security and removed her British citizenship. It then refused her leave to enter the UK to appeal that decision. But the Court of Appeal, in the latest legal ruling on the case, has held that fairness requires she be permitted to return to participate in her appeal.

The Court’s decision overturns some, but not all, of the Judgment of the Special Immigration Appeals Commission (SIAC) delivered in February (and reported here).

SIAC had looked at three preliminary issues. Its ruling on the first is undisturbed: the loss of British citizenship does not render Ms. Begum stateless as she is entitled to Bangladeshi nationality through her Bangladeshi-born parents. On the second issue — a human rights challenge to the deprivation of citizenship decision — SIAC was found to have erred.

It is government policy not to remove citizenship if this gives rise to a real risk of mistreatment contrary to Article 2 (right to life) or Article 3 (prohibition of torture).

SIAC accepted that conditions were deplorable in the camp where Ms Begum was held by Syrian Democratic Forces (SDF) and met the threshold of inhuman or degrading treatment within the meaning of Article 3 ECHR. Ms Begum’s new-born child died of pneumonia there due to the lack of medical care.

But SIAC also accepted the Government’s position that because Ms. Begum’s presence in the camp was not the result of any decision or action by the Secretary of State, there was no breach of the policy: her treatment was the same before and after the removal of British citizenship.

SIAC took the wrong approach, the Court found, and so failed to adequately assess the issue of risk. 

The issue was not whether the Secretary of State’s position was reasonable and rational, as in a claim for judicial review. It was a full merits appeal which required a de novo assessment of risk.  SIAC had failed to evaluate whether the effect of the deprivation decision was to prolong Ms Begum’s detention in the camp in inhuman and degrading conditions.

Similarly, it didn’t adequately consider the risks associated with Ms Begum’s possible transfer to a third country, notably Iraq or Bangladesh. The Government’s own assessment recognised some risk but SIAC accepted its case that it wasn’t possible to speculate about what the SDF, a “non-state actor” might do with its detainees.

The Court allowed the challenge on the human rights issue and remitted the issue back to SIAC to consider afresh the question of risk.

The third preliminary issue was about exercising the right of appeal. In February SIAC found that “in her current circumstances” Ms Begum could not “play any meaningful part in her appeal” and “to that extent, the appeal will not be fair and effective”. But it did not grant her appeal against the refusal of entry to the UK so that she could play a meaningful part. It presented other “options”. These included pressing on with the appeal or staying it pending a possible change in her circumstances.

The Government did not cross-appeal SIAC’s finding on the lack of fairness. Before the Court of Appeal it suggested proceedings be stayed until Ms. Begum had access to a phone or some other means of giving her solicitor instructions. The Court rejected this and the other options presented by SIAC.

Having concluded that the appeal would not be fair or effective, pressing on was “unthinkable,” it said. Indeed, it would compound the unfairness. Staying the proceedings was also wrong. An important executive decision must be capable of challenge and delay didn’t take account of on-going risks of mistreatment.

But it would be equally wrong to accede to Ms. Begum’s submission that her inability to take part in the appeal required the quashing of HMG’s decision depriving her of citizenship. The statutory scheme did not provide a right to an in-country appeal. It recognised some appellants would be required to conduct their appeals from abroad. This may or may not give rise to unfairness. In other cases, cited to the Court, it had not.

The critical issue was to identify steps to “alleviate the unfairness and lack of effectiveness” in this case.

The Court recognised the Government’s national security concerns but observed that, on the facts before it (but “without prejudging the case”), these could be managed in the UK. If the evidence and prosecution policy warranted it, Ms. Begum could be arrested and charged on her arrival and remanded in custody pending trial. Or, if that were not feasible, she could be made subject of a TPIM (Terrorist Prevention and Investigation Measure) restricting her movement, contacts and residence, as required.

In allowing the appeal against the refusal of leave to enter the UK the Court ruled that

Fairness and justice must, on the facts of this case, outweigh the national security concerns.  

So what happens now?

The Government is not ready to accept Ms. Begum’s return and is likely to appeal to Supreme Court. The proceedings referred to a Government document on Foreign Terrorist Travellers. Of the 900 people who had travelled to Syria and Iraq to take part in the conflict, it said, about 40% had returned to the UK. The majority of these were assessed as posing no security risk or a low one.

The Government’s open assessment of the risk Ms Begum poses is sparse. It records the fact that she joined ISIL and relies on comments made to the media in February 2019.

Ms. Begum spoke then about seeing a severed head in a bin. “It didn’t faze me at all. It was from a captured fighter seized on the battlefield, an enemy of Islam”. Her lack of apparent remorse aroused strong public feeling and fears that she posed an ongoing risk. The Secretary of State’s position is a reflection of that. But on her behalf it is argued that statements made to the media should not be taken at face value and that she may have been brainwashed. An appeal will provide an opportunity to hear her account and judge on the basis of all the evidence whether the decision to deprive her of citizenship is correct. 

Marina Wheeler QC is a barrister at 1 Crown Office Row.

Angus McCullough QC, also of 1 Crown Office Row, represents Ms. Begum’s interests as Special Advocate in this case. He was not involved in the writing of this post.