Shamima Begum - what the Supreme Court did not decide

Sam Wood
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Sheona York addresses the political and moral reasoning of the decision.

In response to the recent Supreme Court judgement regarding whether Shamima Begum could return to the UK, Sheona York, Reader in Law at Kent Law School, has given her expert insights. She said:

‘On 26/2/21 the Supreme Court handed down judgment in 3 related appeals dealing with Shamima Begum’s deprivation of British citizenship and whether she should be allowed back into the UK to participate in her appeal against that decision.

‘The Court first decided that the power to deprive a person of their British citizenship has been confided by Parliament to the Home Secretary, to decide at his or her discretion. This means that the courts (in this case, the Special Immigration Appeals Commission (SIAC) since matters of national security were involved) are limited to exercising a reviewing role in any appeal. SIAC were limited to considering whether the Home Secretary has followed his own policies; taken irrelevant matters into account; neglected relevant matters: or otherwise acted in a manner so unreasonable that no reasonable Home Secretary can have done. These are the traditional administrative law tests, and the Court of Appeal were wrong to suggest that SIAC could substitute their own decision about the merits of the national security issues.

‘In Shamima Begum’s case, the Home Secretary is said to have based his decision on national security issues. These have not been publicly divulged but were available to the court. The Supreme Court decided that the Court of Appeal had given insufficient weight to the Secretary of State’s own assessment, an assessment which Parliament had entrusted to him and for which he was democratically accountable.

‘The Supreme Court also decided that a person’s inability to exercise a right of appeal effectively is not a ‘trump card’, in any proceedings. The Secretary of State has decided that national security considerations preclude allowing Ms Begum back into the UK for the purposes of her appeal. To give proper weight to those national security considerations may well mean, given her circumstances in the camp where she is living, that her appeal is never heard. It certainly does not mean that the appeal should automatically be allowed – which would be to give little or no weight to the national security considerations.

‘As far as the UK legal system is concerned therefore, Ms Begum’s deprivation of citizenship cannot be impugned, and she will not be allowed to return to the UK.

‘The real issue however is whether it was politically, morally or even pragmatically appropriate to take such a decision. The consequence is that a person whom the rest of the world would regard as British, born and brought up here and surely the responsibility of the British authorities, has been left for others to cope with. Whatever the legal or political position of those running the camp in which Begum is living, they neither have the resources of the British authorities, nor can there be any basis in either international law or local law for thrusting upon them the responsibility effectively for guarding a group of people who may have committed or supported acts of great brutality and who may well harbour ambitions of committing such acts in future.

‘Britain’s decision is analogous to the dumping of toxic waste at sea – thinking they are throwing it ‘away’, when there is no ‘away’. Or deciding that so long as the British population is vaccinated against Covid, it does not matter what happens in the rest of the world. If it is believed that Shamima Begum and the others like her present significant security risks, they should be treated as any other British citizens suspected of serious crimes: brought back (not ‘allowed to come back’) to the UK to stand trial, with the assistance of legal aid and the possibility of putting arguments about ‘grooming’ in mitigation, and serve their sentences.

‘The Supreme Court criticised the Court of Appeal for considering without hearing any evidence that the security risk of Begum back in Britain could be managed, given the resources that would be involved. But it would surely be shocking if the government were to suggest that depriving such people of citizenship and leaving them to some non-State resistance fighters to keep corralled in the desert was because of lack of resources. If Begum and other British ISIS supporters constitute such a risk, the only appropriate place for them is in the UK.

‘That deprivation of citizenship may not have been legally challengeable, but it was short-sighted, selfish and an act of great national cowardice.’

Sheona York supervises students working on clients’ immigration and asylum cases, whether as part of their assessed work for the Clinical Option module or as volunteers in the Clinic. She also works closely with local NGOs and refugee charities and contributes to academic and public debate on immigration issues.
Sheona focuses her research on issues arising from recent and current UK immigration policies such as the aim to reduce net migration, to discourage unlawful migrants through the ‘hostile environment’ and to deport foreign criminals. The main legal issues of interest are removability and statelessness, fresh claims for asylum and the effects on families of the narrowing interpretation of article 8 ECHR.

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