April 14 2024
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A national security claim goes up, judicial oversight goes down

A national security claim goes up, judicial oversight goes down

Shamima Begum: Stripped of her UK citizenship (Credit: BBC)

The task of Home Secretary is, at its root, a simple one. It is to keep the citizens and residents within the UK’s borders safe. When it came to protecting Shamima Begum, the now infamous ISIS child-bride, Sajid Javid failed.  Under his leadership as Home Secretary, the Metropolitan Police were found wanting, letting Begum continue on a path to radicalisation and doing little to stop her fleeing the country to Syria. Despite knowing that her best friend had abandoned the UK for Syria, and that she was likely to also have burgeoning links to the Islamic Caliphate, officers deemed Begum “low risk”.

This was catastrophic mismanagement by the Metropolitan Police. They failed to notify Begum’s parents of the risk directly, instead handing Begum a letter at school to take home, and failed to put departure checks on Begum’s passport or on those of her close family. She was able to leave the country on her sister’s passport, along with two of her friends, without detection, all three set to walk down the aisle and to become “jihadi brides”.

Rather than acknowledge that the police, ultimately under his command, shared culpability for Begum’s radicalisation and subsequent flight to Syria, Javid pointed the finger of blame at the teenage girl. She was not a child who had been radicalised by extremists, but a fanatic who could not be safely contained at home. The only solution to the threat she posed was to urgently strip her of British citizenship for “reasons of national security” under section 40 of the British Nationality Act 1981.  Better that she be stranded in the desert camps of the Middle East or at the mercy of the Bangladesh government – a state she ostensibly belongs to.

It was only by virtue of this apparent Bangladesh citizenship that the government was able to remove her British citizenship – although no court has asked what his solution would have been to the threat Begum posed if she did not have an alternative. Instead, what the courts have tended to do is to accept that because Begum’s case relates to national security, they must sit on their hands and do nothing. Begum’s case has been heard before the Special Immigration Appeals Commission’s Upper Tribunal, the Court of Appeal, and the Supreme Court. In every instance except before the Court of Appeal, Begum’s case has received short shrift. In front of the Supreme Court, the justices accepted that while Begum could not fairly challenge Javid’s decision if she remained abroad, they ruled this was not a “trump card” giving her a right to return. Instead, they concluded that the Home Secretary’s judgment on what national security requires must be “accorded appropriate respect.”

Given this precedent, it is unsurprising, although still disappointing, to see SIAC rule once more in favour of the government in its judgment handed down yesterday. Despite the Supreme Court acknowledging the difficulties Begum would face in effectively bringing her appeal from Syria, she chose to instruct counsel to continue her appeal. This was constructed on several lines, but primarily focused on the fact that in stripping her of citizenship, the Home Secretary failed to take account of the fact that she may have been a victim of child-trafficking, and may also have violated her related rights under Article 4 of the European Convention on Human Rights. Both of these factors should have at least slowed his decision making, and perhaps even required him to repatriate Begum as a child victim, rather than seeking to exile her. The Commission did not dispute that there was significant evidence suggesting that Begum was the victim of trafficking, and nor did they dispute that this was evidence Javid seemingly failed to take into account at the time.

But even though the Court all but accepted Begum’s claims, it concluded that there was nothing it could do about it. Even though Javid may well have been pushed into making a decision quickly by political circumstances, this was a decision that still hinged on national security. As Javid said, if we had seen the things “he had seen”, all of us would have come to the same conclusion. Curiously, the court did see the things that Javid saw, albeit in closed hearings not open to the public or to journalists, but they seemed less certain. Despite there being scope for “reasonable people to disagree” about what Begum required, this was not enough for the Commission to order the Home Secretary to reconsider.

Instead, much like the Supreme Court, the Commission concluded that by linking his decision to national security, the Home Secretary erected a judicially inviolable barrier around his choice to strip Begum of her citizenship.  The Commission had the potential to examine the plethora of reasons that Javid claims necessitated Begum’s ostracisation, but it made little effort to do so. In detailing some of the open evidence given to the Commission, it was clear that there was the potential for Begum to still be a threat, in part because she knew what she was doing when she left the country under her own steam. As Witness E, an “impressive witness” with “authority on issues germane to the national security case” said, it was “inconceivable” that a girl like Begum, predicted mostly A*s at GCSE, would not have known what “ISIL were doing…at the time”, and that she had “agency” in choosing to leave.

But making a single bad, or even terrible, choice alone should not justify such a devastating consequence as the loss of citizenship. If Begum was an adult, who had freely associated with Islamic terrorists and ISIL, and gone on to commit unspeakable atrocities, all of her own volition, exile would perhaps be a valid, if still extreme, choice. To this end, few of our allies have pursued this path of punishment, with most western states repatriating and prosecuting citizens who were virulent supporters of ISIL. Begum was not an adult, but a child. Not only this, but she was a child who had been failed by the Home Office, and who continues to be failed. As Dr X Green, an expert psychiatric witness (albeit without having had the opportunity to examine her), said, there is the ‘absence of any process to see Begum as a vulnerable adolescent who was entitled to safeguarding considerations.’

Given that there is a “credible suspicion” that Begum was trafficked to Syria, and from there to the Caliphate, the failure of the state and the Home Secretary to adequately safeguard her has had devastating consequences. But in then stripping her of citizenship after she has borne the brunt of her decision-making, including the deaths of her three children, the Home Secretary is seeking to use his national security powers to ossify these consequences. Rather than accept this, and rule that the Home Secretary cannot lawfully use national security powers to deprive victims, or even potential victims, of trafficking of citizenship, the Commission refused to find that “trafficking is relevant to the exercise of the s.40 power.”  Even more concerningly, they ruled that even if trafficking was relevant, that the Home Secretary could have decided to give a “material factor no weight” in making a decision on citizenship. In essence, the moment a national security claim goes up, judicial oversight goes down. No judges can peer over the barrier, or push against the masonry, but must just accept the impediment.

Almost all of the arguments before the Commission were novel. No potential victim of trafficking has ever made a claim before SIAC on the basis that the Home Secretary has an obligation to consider this status. Similarly, few, if any, have argued that the state can exile someone to another country that they have no tangible connection to, and have only a spurious right of citizenship with. Forcing the Home Secretary to engage with these factors was a path abundantly open to the Commission. Instead, they found that trafficking was “not a mandatory relevant consideration.”

Begum is not a sympathetic character. Her first interviews showed an addled, but determined acolyte of ISIL, obsessed with their deluded and deadly ideology. This acolyte may have gone, her faith stripped away, and may have been replaced with a Gen-Z persona, complete with a podcast and baseball cap, but many are legitimately sceptical of her redemption. But being an unsympathetic character is not justification for banishment. When this is coupled with the factors that led to her boarding that flight to Syria, Javid’s decision looks like one made by a Home Secretary desperate for acclaim from the red-tops, not one made dispassionately from on high.  The Commission came close to realising this. When Begum inevitably appeals to the Court of Appeal, we must hope that the justices there do better.