Judgement in the Begum Case: A Good Day for the Protection of Human Rights

The United Kingdom’s Court of Appeal issued its judgement in the Shamima Begum case on Thursday morning. Begum was deprived of her citizenship under the British Nationality Act in February 2019 by the then-Home Secretary. The Appeal Court had to decide whether, “…Begum could have a fair and effective appeal against the deprivation of citizenship from outside the United Kingdom and in Syria.” It found that she could not and that she should be granted entry to the U.K., allowing her to challenge the stripping of her citizenship.

Begum was 15 years old when she left the U.K. for Syria, married an ISIS fighter, and joined the group. She gave birth to two children while a minor, and a third after she turned 18. All three children have perished. Her third child died while detained with Begum at Al-Hawl camp in Syria. The Special Rapporteur’s mandate on counter-terrorism and human rights (held by Fionnuala Ní Aoláin, Just Security executive editor) intervened in this case because of the severe and irreparable consequences of depriving citizenship to a woman who was a minor when she travelled to Syria; who was a child when she was recruited online to travel and join the group; and, who had no meaningful capacity to participate in the legal proceedings depriving her of British citizenship.

Citizenship deprivation is one of the most consequential legal acts any government can impose on one of its citizens. Citizenship is a gateway right, which enables and supports the ability to have most other rights. Without citizenship, individuals are profoundly vulnerable to harm. Those harms, as the Court of Appeal recognized today, are immense. They include not only the stark reality of living in a camp where detention is based on the power exercised by a non-state actor, and where there is no meaningful hope of legal exit but for the intervention and support of a State of nationality. The Court accepted that citizenship deprivation could make Begum vulnerable to transfer to Turkey, Bangladesh, or Iraq, and to conditions that would further risk both her right to life and her right to be free from torture, inhuman, and degrading treatment. Moreover, there is consequential recognition in this decision, in line with the position taken by the Special Rapporteur’s mandate, that:

…conditions in the camp are so bad that they meet the threshold of inhuman or degrading treatment for the purposes of Article 3 of the European Convention on Human Rights.

This acknowledgment that the conditions in these camps meet the thresholds for torture should underscore the positive obligations of States, particularly Western States, who have so far failed to return their nationals, including hundreds of children, home.

The nub of the Court’s decision, however, lies in the recognition of the necessity for procedurally fair process in the deprivation of citizenship, including the fundamental right to participate in the proceedings. Our intervention to the Court argued that the prohibition of arbitrary deprivation of citizenship is a fundamental right under international law and is an essential protection for individuals. The Court was particularly cognizant of the fact that the Special Immigration Appeals Tribunal (which upheld the deprivation of Begum’s citizenship) accepted that “… in her current circumstances, [Begum] cannot play any meaningful part in her appeal, and that, to that extent, the appeal will not be fair and effective” is in clear and categorical terms. As a result, the Court found that:

It is one thing for an appeal to proceed without the participation of the appellant against an appellant who chooses not to participate. It is quite another to proceed with an appeal without the participation of the appellant because the appellant is unable to participate meaningfully and effectively. Far from remedying the unfairness, this would seem to compound it.

The judgement is also remarkably practical and clear-eyed in addressing the national security concerns pertaining to Begum. While the Court recognized the national security concerns of the government, it also concluded that there is an array of measures available to manage any threat, including charging Begum with specific offenses as well as applying terrorism prevention and investigation measures (TPIMs) once she is returned to the U.K.

The decision also recognizes the positive and complementary relationship between national and international law as regards due process and fairness. Thus, Lord Justice Flaux concluded:

The status of customary international law in interpreting and applying the common law is not a matter which requires resolution on this appeal as the principles of international law identified, safeguards to protect against the risk of arbitrariness and the minimum requirements of a right to an independent review of a deprivation decision by a judicial or administrative body, are themselves principles well-recognised in English public law.

This judgement brings attention to the indisputable fact that Begum, among other abandoned women and children, is fighting for her survival in an overcrowded camp and under conditions that are inhumane and intolerable. This alone affirms that that the urgent return and repatriation of foreign fighters and their families from these conflict zones is the only international law-compliant response to the increasingly complex and precarious human rights, humanitarian, and security situation faced by these women, men, and children. Return is the only comprehensive response that amounts to a positive implementation of Security Council resolutions 2178 (2014) and 2396 (2017) and is considerate of the long-term security interests of the States involved.

The British Court of Appeal has grasped the essential and absolute importance of the right to meaningfully participate in the proceedings depriving a person of their citizenship. Given the political pressure and hysteria generated about this one young woman, notwithstanding the complexity and horrors of the short life she has lived, the independence and thoughtfulness of the Court’s review is welcome, and it affirms the importance of judicial intervention in these cases, which have lacked sustained political leadership in many countries.

The Special Rapporteur  acknowledges  the legal support provided by Leigh Day in making her submission to the UK Court of Appeal.

Image: Renu Begum, eldest sister of Shamima Begum, 15, holds her sister’s photo as she is interviewed by the media at New Scotland Yard, as the relatives of three missing schoolgirls believed to have fled to Syria to join Islamic State have pleaded for them to return home, on February 22, 2015 in London, England. Photo by Laura Lean – WPA Pool/Getty Images

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the Queens University in Belfast, Northern Ireland. Member of the editorial board of Just Security. You can follow her on Twitter (@NiAolainF).

Anne Charbord

International human rights lawyer, focusing on human rights and security. She is currently legal advisor to the mandate of the UN Special Rapporteur on human rights while countering terrorism, and a visiting scholar at the Human Rights Center at the University of Minnesota Law School. Follow her on Twitter (@ACharbord).