On July 16, the UK’s Court of Appeal determined that Shamima Begum, currently at an IDP camp in northeast Syria, has the right to return to the UK to challenge the stripping of her British nationality. Born in the UK to parents of Bangladeshi origin, Begum had her UK citizenship - the only one she holds - revoked in a controversial decision by the Home Secretary in February 2019. The decision was made after she was discovered by a Times journalist in the al-Hol camp in northeast Syria that same month and spoke publicly about her experience since departing the UK.
Begum (then 15) was one of three schoolgirls from Bethnal Green in London who traveled to Syria in February 2015 to join ISIS. At the time, their case raised alarm about the eventual 900 citizens from the UK in Iraq and Syria affiliated with ISIS, including approximately 150 women. Since then, Begum, who has now been married, widowed, and lost three children, has also become the focus of an intense debate on the removal of citizenship in the UK and abroad, as well as the broader risks and concerns surrounding the repatriation of nationals who remain in northeast Syria. As the most high profile recipient of a revocation order, Begum’s case is significant as the ruling challenges the Government’s assertion that national security concerns can unquestioningly trump long-standing principles of due process.
The ruling of the Court of Appeal
At the core of the legal debate surrounding Begum’s deprivation of nationality are three key issues: (1) that it has rendered her stateless; (2) that it would be a breach of her right to life and the prohibition of torture under the European Convention on Human Rights (ECHR); and (3) that it would deprive her of the right to a fair and effective appeal of the decision. Although the issue of statelessness resulting from the use of deprivation of nationality as a means to deal with citizens who joined ISIS remains a contested area, prompting the United Nations High Commissioner for Refugees (UNHCR) to issue guidance for states earlier this year, the Court’s decision focused neither on this issue nor on the possible ECHR violations, but rather on Begum’s ability to have a fair and effective appeal.
The UK’s Special Immigration Appeals Commission (SIAC), which deals with deprivation orders, had earlier accepted that, in light of her current circumstances, Begum’s appeal would not be fair and effective. Despite this acknowledgement, SIAC maintained that she nonetheless was not entitled to return to the UK to exercise her right to appeal. Rather, SIAC contended that she had options including to nonetheless continue with her appeal from Syria or wait until her circumstances changed such that she could meaningfully contribute to her case. Unpersuaded by SIAC’s suggestions of alternatives, the Court of Appeal found that none of these options would address the risk of her being transferred to Iraq or Bangladesh, where she could be unlawfully killed or suffer mistreatment, and would leave her without a meaningful way to appeal her deprivation order for an unlimited period of time.
In granting her the right to return to the UK to pursue her appeal the Court did not require that the Government actively take part in her return. However, as Kurdish authorities have repeatedly expressed a willingness to facilitate returns, with the proper travel documents, Begum could now realistically travel back to the UK.
Not everyone can return
In deciding in her specific case that the rights of fairness and justice outweigh the national security concerns, the Court did not necessarily open up the door for everyone who has had a deprivation order to return. Distinguishing Begum from the appellant in U2 v. Secretary of State for the Home Department, who was also subjected to a deprivation order, the Court highlights that U2 is a “dangerous and dedicated Islamic extremist [...] who has connections to equally dangerous terrorists and extremists.” It noted that Begum, in contrast, left the UK when she was only 15 and had not yet taken her GCSEs to merely be “aligned” with ISIS. The Court also dismissed the Government’s argument that Begum had brought on the procedural unfairness through her own actions, namely by leaving the UK of her own free will, finding it irrelevant to the rule of law protections to which she is entitled.
National security concerns thus remain a legitimate grounds for issuing a deprivation order while the individual in question is outside of the UK. However, the Court’s decision indicates that they will no longer accept a blanket determination by the Home Secretary that anyone who travelled abroad to take part in ISIS poses such a risk that their fundamental right to a fair and effective appeal is outweighed by the interest of national security. The Government will need to substantiate their evaluation of the balance between the security risks and due process on an individual basis. Although some departees are likely to not seek to challenge the deprivation orders, the Court’s decision will likely open the door for at least some of those seeking to reinstate their citizenship.
Despite the political sensitivities surrounding the possible returns, especially given public concern around the potential threat posed by returnees - approximately 40% of the 900 British citizens who traveled have now returned to the UK and have been assessed to pose no risk or low risk to the public. Although security concerns remain warranted, the government has a range of measures at its disposal, including not only prosecution, but also a range of Terrorism Prevention and Investigation Measures (TPIMs) that can be used to mitigate the risk posed by returnees, including Begum.
Following the announcement of the court’s decision, a spokesperson for the Home Office indicated their intention to appeal the judgment. If the Home Office’s appeal is denied, Begum will be entitled to return to the UK, where she will not only be able to move forward in her appeal, but—should there be sufficient evidence for her prosecution—she may be arrested and remanded in custody pending trial.
Between 1970 and 2001, the UK only revoked the nationality of one person. Between 2016 and 2018, the Home Office issued 139 nationality revocations in the interest of national security. These do not include those from 2019 onwards, including Begum’s or British Canadian Jack Letts. The exponential growth in the use of deprivation orders came despite official warnings that it is an “ineffective and counter-productive weapon against terrorism.” The Court of Appeal’s recent decision, in particular its finding that not every individual will pose a risk high enough to outweigh their right to a fair and effective appeal in cases where they have been stripped of their citizenship, will likely present a significant obstacle to the Home Office’s current approach to dealing with terrorism. Rather than being able to kick the proverbial can down the road by excluding individuals from the UK, making them someone else’s problem to deal with, the Court’s ruling in the Begum case challenges the Government to confront the issue head on.
National security remains a key concern, yet the British judicial system is robust enough to deal with terrorists without resorting to violating due process. In the case of Begum, whether she in fact returns to the UK remains to be seen. Yet, this week’s ruling has struck some balance between national security and rule of law.