Rachel Pougnet (University of Bristol)
On 26 February 2021, the Supreme Court decided that Shamima Begum, who left the UK in 2015 when still a schoolgirl of 15 to join ISIS, should not be allowed back into the country to conduct her appeal against the deprivation of her citizenship. Whereas the previous decision from the Court of Appeal of England and Wales was painted (albeit perhaps not quite rightly) as a ‘victory for human rights’, this surely was a victory for the discretionary use of expansive state powers under minimal judicial scrutiny.
Some contextual cues
The facts of her case have become well-known. In 2019, then UK Home Secretary Sajid Javid, deprived Begum of her citizenship on the ground that it was ‘conducive to the public good’ to do so (s40(2) of the British Nationality Act 1981 (BNA)). This legal standard is very broad and covers actions ranging from involvement in terrorism and serious crimes, to a list of ‘unacceptable behaviours’. The only safeguard against this expansive state power is that the individual should not be left stateless in law. In 2014, the UK government removed even this protection for individuals who were naturalised as British citizen. But this is not the case for Begum, who is a British citizen by birth, because she was born in the UK at a time when one of her parents was settled (i.e. had ‘indefinite leave to remain’). In 2019, Sajid Javid argued that her Bangladeshi heritage meant that she would not be left stateless. Begum was 19 at the time and had never been to Bangladesh or spoke the language. The decision was confirmed by the Special Immigration Appeals Commission (‘SIAC’) in February 2020, despite the contrary statement issued by Bangladesh. SIAC is a tribunal which hears immigration cases with national security dimensions. It seems that SIAC’s decision left Begum in the limbo of de facto statelessness, with nowhere to go, and heightened difficulties to exercise her rights of appeal and due process. A foreigner in the eyes of the state, Begum applied for ‘Leave to enter’ (LTE) to the UK in 2019, but this was subsequently refused by the Home Secretary. Now 21, she remains adrift in the dire conditions of the Al-Roj refugee camp in Syria, from which she has had to conduct each of her appeals, including that before the Supreme Court.
The Begum judicial saga: reinstating judicial deference
This appeal was not a decision on the legality of the decision to remove her citizenship. It was not about whether she should be getting her citizenship rights back. In fact, the first reference to the drastic effect of citizenship deprivation and the ‘serious nature’ of the measure only occurs half-way through the judgment (at para.71). The judgment involved three separate sets of complex proceedings which were heard together and handed down in a single document. All were decided against her. To fully understand what did or did not happen, however, we need to get back in time a little.
Some of the issues in the Begum ‘judicial saga’ were directly connected to the grim conditions in the Roj camp. In 2014, the UK government made clear that it had a ‘policy’, a practice of not depriving individuals of their citizenship who are outside of the jurisdiction of the UK if there is a risk that these individuals would be exposed to serious breaches of their human rights. Before the SIAC, Begum’s lawyers argued that the Home Secretary had violated its ‘policy’ because she was exposed to such mistreatments. They also submitted that in her current conditions, she could not have access to a fair and effective trial, and that her appeal should thus be allowed. All of these claims were refused by the SIAC in February 2020. In the meantime, her lawyers challenged the LTE decision, and, because there was a national security element to her case, this was also heard by the SIAC. And it also failed. Some of these findings were reversed by the Court of Appeal in July 2020. Human rights advocates had some – albeit limited – reasons to rejoice. The decision was still not about her citizenship rights, but the Court of Appeal said that she should be allowed back to the UK to conduct her appeal. The Court even made discrete comments about the specificity of her situation: how a teenager, who is likely herself a victim, had her citizenship removed. It reached much further into the facts and justifications presented by the executive and decided that any security concerns she may pose could be managed if she returned to the UK (para 120). But perhaps more importantly, the court reinvigorated the role and the powers of SIAC. For example, on the question of how far the executive breached its policy, we were told that the tribunal should decide this question for itself, rather than apply more orthodox principles of public law (para 125). To put it differently, the question was not whether the Home Secretary was reasonable or irrational in thinking that there was no breach of its policy, but whether there was a breach or not. This may not seem like much, but the effect of both combined statements had the potential to change completely the way in which citizenship deprivation cases were heard (and decided). For one thing, the full spectrum of the rights protected under UK law would have been easier to access because the individual would have been in the jurisdiction of the UK. The courts would also (perhaps) have had a more ‘hands on’ approach, in so far as they were revived in their roles as appellate bodies and asked to interfere in the discretion of the Home Secretary.
Whatever hopes these findings brought for future determinations of deprivation cases, they were short-lived. In contrast, the Supreme Court took an orthodox, and very limited, view of judicial powers within the UK constitutional architecture. It also brought clarity to a highly complex legal framework. The Court re-examined in depth the role and scope of the powers of the SIAC. There, it unearthed the judgment in Rehman, a case which was decided a week after the terrorist attacks of 9/11 by the then highest court, the House of Lords. This decision is famous within public law circles for granting extensive leeway to the executive in matters dealing with national security. This is commonly known as judicial deference. In Begum, the Supreme Court explained that the SIAC should afford ‘appropriate respect’ to the Home Secretary because s/he may be more ‘institutionally suited’ to take some decisions and because s/he enjoys democratic credentials which the courts lack (para 70). So far, so good: this is neither surprising nor a cause for outcry. The question is rather, how much leeway or ‘appropriate respect’ should be accorded to the Home Secretary in deciding that something is in the public good. And this is where the judgment kicks in: 10 years after Rehman, the Court reiterated that the SIAC should stick to ensuring that the Home Secretary did not act ‘unreasonably’ or ‘irrationally’. Every first-year UK law student will know that this sets a very tricky standard. The example of ‘unreasonableness’ commonly given is a situation where a teacher would be sacked because she has red hair. To put it another way, it is unlikely that any decision grounded in national security could ever be considered unreasonable or irrational on this standard. In essence, then, the Court helped to clarify a minimal set of legal (and judicial) restraint upon the action of the executive.
The rest of the decision is not much better for as regards the situation that Begum and indeed other individuals who have been deprived of their citizenship in the UK whilst they are out of the country and are unable to return. The Supreme Court found that there was no reason that her appeal should succeed, just because she finds herself in circumstances where she cannot have a fair trial. In the eyes of the court, ‘fairness is not one sided’ and requires careful considerations of the national security concerns she may pose (paras 90 and 94). On these matters, as seen above, the court does not have a say because they are determined entirely by the Home Secretary. Besides, because the Court cannot hear an unfair appeal, the Supreme Court argued that the appeal should be paused until it can be heard fairly. This results in a Kafkaesque situation, in which Begum may have been unlawfully stripped of her citizenship, but she cannot effectively assert this until she is in a better position to appeal the decision. This, in turn, is not going to be any time soon, because she cannot come back to the UK, and the prospects of leaving the Roj camp and/or moving to a safe third country when she is left in the limbo of statelessness and during a global pandemic are sparse. She may decide to take this decision to the European Court of Human Rights (ECtHR) whilst remaining in the Roj camp, but again, if she was successful this will not help her get her citizenship back.
What next? Deepening ‘legal holes’
For the sake of the argument, let us assume that one day she will have access to fair procedures and be able to challenge the loss of her citizenship. What will happen then? It is highly uncertain (if not highly unlikely) that the courts will be able to pierce through the veil of exceptionalism and restore her citizenship rights. As Begum shows, Parliament has legislated to make it very hard for them to succeed. As for the behaviour of the courts, cases which have ‘balanced’ the consequences as regards an individual’s rights against the purported national security gains resulting from her removal from the citizenry have so far always found in favour of national security. In instances where individuals were not assessed to be a threat to the country anymore, the courts have revived old images of citizenship as allegiance to support the executive. They have accepted (and rationalised) the idea that citizenship deprivation could be used as a tool in the state’s politics of belonging, in order to exclude ‘symbolically’ those who had departed from whatever duties they owe to the state. The practice from neighbouring countries and European courts does not give brighter hopes either. Commenting on the Ghoumid case when it first hit the news, Jules Lepoutre wrote on this blog that the broad margin of appreciation granted by the European Court of Human Rights (ECtHR) to France in this case had the effect of creating a legal greyhole. The court’s scrutiny was a rubber stamping of the state action rather than a careful inquiry into the facts and issues of the case. Before these judicial practices and the recent Begum case, the comments from Baroness Kennedy of the Shaws in the House of Lords during the legal changes in 2014 which allowed for citizenship stripping even if it would result in statelessness resonate acutely:
…We in Britain have always claimed our commitment to the rule of law; indeed, we like to think of ourselves as having parented its existence. You might ask: is this man [Madhi Hashi], who is now sitting in a jail in New York, a bad guy? I cannot tell you. No evidence is in the public domain. But it matters not whether he is a bad guy—that is the important thing to have in mind. We are supposed to believe in due process, the rule of law and international human rights. By making him stateless, we stripped him of the safeguards that any human being should expect. That is not how we normally behave. That is not an acceptable way for a civilised nation to behave.
The cover picture of this article was taken by Jem Collins outside the Supreme Court of the UK.