17 July 2020 by

Picture: The Guardian

Begum v Particular Immigration Appeals Fee and the Secretary of State for the Dwelling Division [2020] EWCA Civ 918

Early final yr, after ISIL was dislodged from Raqqah, Shamima Begum was found in a refugee camp in Syria. When she expressed a want to return house to London’s Bethnal Inexperienced, Her Majesty’s Authorities wasn’t welcoming. She had left to affix ISIL and HMG didn’t need her again. It thought of her a critical threat to nationwide safety and eliminated her British citizenship. It then refused her go away to enter the UK to enchantment that call. However the Courtroom of Enchantment, within the newest authorized ruling on the case, has held that equity requires she be permitted to return to take part in her enchantment.

The Courtroom’s determination overturns some, however not all, of the Judgment of the Particular Immigration Appeals Fee (SIAC) delivered in February (and reported here).

SIAC had checked out three preliminary points. Its ruling on the primary is undisturbed: the lack of British citizenship doesn’t render Ms. Begum stateless as she is entitled to Bangladeshi nationality by way of her Bangladeshi-born dad and mom. On the second situation — a human rights problem to the deprivation of citizenship determination — SIAC was discovered to have erred.

It’s authorities coverage to not take away citizenship if this offers rise to an actual threat of mistreatment opposite to Article 2 (proper to life) or Article 3 (prohibition of torture).

SIAC accepted that situations had been deplorable within the camp the place Ms Begum was held by Syrian Democratic Forces (SDF) and met the edge of inhuman or degrading remedy throughout the that means of Article Three ECHR. Ms Begum’s new-born baby died of pneumonia there because of the lack of medical care.

However SIAC additionally accepted the Authorities’s place that as a result of Ms. Begum’s presence within the camp was not the results of any determination or motion by the Secretary of State, there was no breach of the coverage: her remedy was the identical earlier than and after the elimination of British citizenship.

SIAC took the incorrect strategy, the Courtroom discovered, and so did not adequately assess the difficulty of threat. 

The problem was not whether or not the Secretary of State’s place was cheap and rational, as in a declare for judicial assessment. It was a full deserves enchantment which required a de novo evaluation of threat.  SIAC had failed to judge whether or not the impact of the deprivation determination was to extend Ms Begum’s detention within the camp in inhuman and degrading situations.

Equally, it didn’t adequately take into account the dangers related to Ms Begum’s doable switch to a 3rd nation, notably Iraq or Bangladesh. The Authorities’s personal evaluation recognised some threat however SIAC accepted its case that it wasn’t doable to take a position about what the SDF, a “non-state actor” would possibly do with its detainees.

The Courtroom allowed the problem on the human rights situation and remitted the difficulty again to SIAC to think about afresh the query of threat.

The third preliminary situation was about exercising the precise of enchantment. In February SIAC discovered that “in her present circumstances” Ms Begum couldn’t “play any significant half in her enchantment” and “to that extent, the enchantment won’t be honest and efficient”. Nevertheless it didn’t grant her enchantment towards the refusal of entry to the UK in order that she might play a significant half. It introduced different “choices”. These included urgent on with the enchantment or staying it pending a doable change in her circumstances.

The Authorities didn’t cross-appeal SIAC’s discovering on the shortage of equity. Earlier than the Courtroom of Enchantment it prompt proceedings be stayed till Ms. Begum had entry to a cellphone or another technique of giving her solicitor directions. The Courtroom rejected this and the opposite choices introduced by SIAC.

Having concluded that the enchantment wouldn’t be honest or efficient, urgent on was “unthinkable,” it mentioned. Certainly, it might compound the unfairness. Staying the proceedings was additionally incorrect. An vital govt determination have to be able to problem and delay didn’t take account of on-going dangers of mistreatment.

However it might be equally incorrect to accede to Ms. Begum’s submission that her lack of ability to participate within the enchantment required the quashing of HMG’s determination depriving her of citizenship. The statutory scheme didn’t present a proper to an in-country enchantment. It recognised some appellants can be required to conduct their appeals from overseas. This will likely or could not give rise to unfairness. In different circumstances, cited to the Courtroom, it had not.

The essential situation was to establish steps to “alleviate the unfairness and lack of effectiveness” on this case.

The Courtroom recognised the Authorities’s nationwide safety issues however noticed that, on the information earlier than it (however “with out prejudging the case”), these might be managed within the UK. If the proof and prosecution coverage warranted it, Ms. Begum might be arrested and charged on her arrival and remanded in custody pending trial. Or, if that weren’t possible, she might be made topic of a TPIM (Terrorist Prevention and Investigation Measure) proscribing her motion, contacts and residence, as required.

In permitting the enchantment towards the refusal of go away to enter the UK the Courtroom dominated that

Equity and justice should, on the information of this case, outweigh the nationwide safety issues.  

So what occurs now?

The Authorities just isn’t prepared to simply accept Ms. Begum’s return and is prone to enchantment to Supreme Courtroom. The proceedings referred to a Authorities doc on International Terrorist Travellers. Of the 900 individuals who had travelled to Syria and Iraq to participate within the battle, it mentioned, about 40% had returned to the UK. The vast majority of these had been assessed as posing no safety threat or a low one.

The Authorities’s open evaluation of the danger Ms Begum poses is sparse. It data the truth that she joined ISIL and depends on feedback made to the media in February 2019.

Ms. Begum spoke then about seeing a severed head in a bin. “It didn’t faze me in any respect. It was from a captured fighter seized on the battlefield, an enemy of Islam”. Her lack of obvious regret aroused robust public feeling and fears that she posed an ongoing threat. The Secretary of State’s place is a mirrored image of that. However on her behalf it’s argued that statements made to the media shouldn’t be taken at face worth and that she could have been brainwashed. An enchantment will present a possibility to listen to her account and choose on the premise of all of the proof whether or not the choice to deprive her of citizenship is appropriate. 

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

Angus McCullough QC, additionally of 1 Crown Workplace Row, represents Ms. Begum’s pursuits as Particular Advocate on this case. He was not concerned within the writing of this submit.