Shamima Begum losing her appeal against being stripped of her British citizenship will be of little surprise to legal experts, but still disappointing for human rights advocates. Ms Begum was seeking permission to return to the UK and – presumably – to be heard in normal criminal proceedings before any punitive sanction is imposed upon her. So far decisions have been made behind closed doors, highlighting the legal classic that no one needs an open court more than those labelled “an enemy of the state.”

In its submissions to Court, Ms Begum’s legal team have claimed she was a victim of human trafficking and, particularly egregiously, a child victim destined for sexual exploitation. Given the duties articulated under the Modern Slavery Act 2015 (and highlighted by the European Court of Human Rights in A.N. and V.C.L. v UK - Applications nos. 77587/12 and 74603/12, 16 February 2021 -), there is a serious argument to be made that the Home Secretary needs to examine whether Ms Begum – and any other British citizens in a similar position – should be considered a victim and, as such, deserving of legal protection. The SIAC’s words strongly indicate legal fairness demands this. Its decision, however, demonstrates the courts’ apparent impotence to ensure executive decisions are made in line with any such principle.

The technicalities of the MSA mean ’terrorism’ is not covered by the formal defence, but this case raises questions as to what severity the charges Ms Begum faces truly have. The Rhianna Rudd case demonstrated that such considerations are relevant when any public interest test in prosecution is undertaken. In that case, terrorism charges related to far-right extremism, were dropped after her defence team petitioned the Home Office demonstrating Ms Rudd to have been groomed. The question is why Ms Begum has not been afforded the same treatment.

It is key to remember that Daesh are viewed as a vicious, criminal organisation whose radicalisation methods caused western governments to make unprecedented investments in countering their strategies. The case against Ms Begum – which paints her as a villain acting freely – relies on the assertion that the decision-making capacity of a 15-year-old girl from Bethnal Green was not significantly impacted by their tactics.

In fact, Ms Begum is considered so blameworthy, the UK Government has indicated it is better Britain forgoes its sovereignty and the associated duty to punish any criminal citizen (let alone protect any citizen who might require help). This begs the question, why our courts should not hold her accountable if needed; or indeed our security services manage any risk she poses. There is plenty of precedent demonstrating UK capacity to prosecute crimes committed in Syria, so it appears odd that the Home Office insists our security can only be protected via Ms Begum’s citizenship deprivation and her remaining (presumably still watched by UK security services) in a refugee camp.

For lawyers worried about the precedents set by the Begum case, there is, however, also hope in the words emerging from the Special Immigration Appeals Commission (SIAC) ruling. Giving the decision, Mr Justice Jay reportedly stated ’reasonable people will differ’ on how they view Ms Begum’s circumstances. The Panel ruling states: ’Essentially, and from the perspective of those responsible for the trafficking, the motive for bringing her to Syria was sexual exploitation to which, as a child, she could not give a valid consent’. The Commission apparently acknowledged the ’considerable force’ of arguments made by Ms Begum’s legal team and described the Home Office’s conclusion that she voluntarily travelled to Syria is ’as stark as it is unsympathetic’. So there is, at least, judicial acknowledgement of the issues in play. The question remains whether this can be turned into anything more.

Ms Begum’s legal team have stated there to be ’no end’ to the challenges they can still mount though the pathway to do so I somewhat unclear. They have themselves experienced the Courts insisting the SIAC refrain from substituting their own assessment for that of the Home Secretary (see e.g. the Supreme Court in Begum v Secretary of State for the Home Department [2021] UKSC 7) and afford the Executive the usual ’margin of appreciation’ in national security cases. Nevertheless, these judicial findings hold power and Ms Begum’s team have demonstrated some skill in ensuring the apparent injustices of her case are firmly in public view. It will indeed be harder for Home Secretaries to chide health workers and police officers for failing to correctly identify victims of modern slavery against the background of such high commentary. This appears to be a legal team in search of a judge who will challenge the Government and the opaque blanket of national security.

The lack of data available for those deprived of their citizenship or subject to controlled return measures highlights the need for such proactivity starkly. Their quest ensures Shamima Begum remains present in the court of public opinion, with ever more information indicating injustice emerging. The law is perhaps being used as a tool if not directly able to provide a solution itself.

There are some certainties, however, British law enforcement and courts have a proven track-record managing returnees and suspects, and a plethora of tools to manage high-risk individuals available to them. The question is why we do not trust them with Shamima Begum? Given that even the SIAC has acknowledged she has a considerable case to make as a citizen worthy of protection, the question as to why she - and other women like her – face such opposition to even having standing as a British citizen, grows ever more urgent. The Home Secretary heads a criminal justice system currently vocally keen to ensure women enjoy the protections the law is supposed to offer them as well as to achieve racial justice, taking their own legal duty towards women of colour seriously; even where they do not find them likeable, would seem a good place to start leading by example.

Dr Marianne Wade, Reader in Criminal Justice, Birmingham Law School, University of Birmingham

 

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