A brief note on the Shamima Begum appeal

This is a brief note on the Shamima Begum appeal currently being heard in the Court of Appeal.

I briefly discuss the recent & notable Supreme Court judgment (which I agree with) and then turn to the present appeal. I end with some of my thoughts. When the Court of Appeal gives its ruling, I'd like to compare.

✲✲✲

The 2021 Supreme Court decision

The original Supreme Court decision concerned the validity of the removal of Ms Begum's citizenship when she decided to leave the UK to join Isis in Syria. There is a general rule from treaty law that you cannot make someone stateless; and, in this case, Ms Begum would not be, as a matter of fact, stateless.

The crux of the SC's reasoning is that the deprivation of British citizenship – notwithstanding the above qualification – is a classic issue of national security. In our constitution, this falls under the prerogative of Parliament and, in turn, the discretion accorded by it to its governments' ministers. Foreign policy and national security have been areas of policy where the courts have traditionally been v. reluctant (on the grounds of constitutional legitimacy and authority) to disturb the decisions of ministers. Safety of the public is a legitimate policy area to which ministers must be accorded a latitude (and to which they are answerable to Parliament).

A similar case that, I think, is useful is R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60. It concerned a challenge to the decision to refuse to allow Ms Maryam Rajavi – a lady with close links to a proscribed terrorist group – to enter the UK. In that case, Lord Sumption's dictum was instructive: 

We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take

✲✲✲

The present appeal

The present appeal pivots the argument in a different direction. 

Instead of challenging what the former Home Secretary did - it challenges what he didn't do.

The argument is that Mr Javid breached a human rights obligation; namely, to determine whether Ms Begum was a victim of trafficking before stripping her of her British citizenship. Mr Javid is supposed to have investigated whether the state had failed in its duty to protect Ms Begum when she travelled to Syria in 2015. This, in turn, rendered the decision to revoke her citizenship unlawful.

The original judgment was delivered by Mr Justice Jay of the Special Immigration Appeals Commission. The most important parts of the judgment are:

1. From para. 248–261, the following two conclusions were drawn.
1. Parliament did not expressly require - as a mandatory consideration - that the Home Secretary take into account credible suspicion of trafficking.
2. The Home Secretary's power is broadly defined and its primary focuses is national security and not grooming/trafficking.
2. The court could not substitute its own view on whether Ms Begum was trafficked for the Home Secretary's view that she had travelled voluntarily into Syria to join Isis, which was integral part of the overall national security assessment.
3. The Commission did think that there was credible suspicion that Ms Begum had been trafficked.

✲✲✲

My thoughts

As a matter of law, I find Jay J's logic quite persuasive and I agree with him.

Firstly, Section 40 of the British Nationality Act 1981 is indeed v. broadly defined and focuses on a single test (namely: "conducive to the public good"). I have highlighted the relevant section. This is done deliberately and affords the minister a broad discretion to take account of a myriad factors in the decision-making process. It does not make trafficking a qualifying condition (which is essentially what Samantha Knights KC is trying to argue in the Court of Appeal - see article below).

Secondly, the framing of section 40 in such a way as to make deprivation of citizenship conditional on the trafficking analysis fails, as Jay J argued, to take account of "questions of fact and degree" (para. 257). Ms Begum could be, in some respects, trafficked - but, in other respects, she actively and knowingly went to Syria to join Isis. It's not a black-and-white issue, as Sir James Eadie argued. And once we make trafficking an all-or-nothing assessment; it seems to me that the approach rapidly veers away from the clear intent of Parliament in the statute. (Indeed, as established in Begum and Carlile (and Bank Mellat), not all rights have equal weight; and the executive are not necessarily required to treat all considerations to the same standard.)

Thirdly, as established in Carlile, the courts are not apt to substitute a decision made by its constitutional maker for one which the court finds preferable. The courts do not have the contingent expertise to enable the required assessment of risks vis-a-vis national security and public safety. Upon on what basis can the court rule that the Mr Javid came to the wrong decision?

✲✲✲

From today's paper: