In Shamima Begum Case, UK Supreme Court Dismisses Rights and Overlooks Potential Victimhood

Begum, stripped of UK citizenship, will remain in inhumane conditions in a Syrian camp indefinitely.

In a decision with potentially sweeping consequences for due process rights in national security cases, the UK Supreme Court unanimously held Friday that Shamima Begum, a former UK schoolchild who traveled to a part of Syria then controlled by the Islamic State (IS) in 2015, does not have a right to return to Britain while she challenges the government’s decision to strip her of citizenship. The Court held that security concerns can override people’s right to “fair and effective” proceedings—while overlooking the critical and badly under-examined fact that Begum may be a victim of child marriage and human trafficking.

The Court’s startling conclusion that an individual’s alleged dangerousness can justify weaker procedural rights is likely to attract the most attention in legal circles. The Home Office had argued before the Court that Begum “is assessed to pose a real and current threat to national security,” remains “aligned with” IS, and is desensitized to violence. The Supreme Court maintained that the Court of Appeal had overstepped its bounds when it found that the government was overstating the risks Begum might pose to public safety. It went on to declare that “if a vital public interest – in this case, the safety of the public – makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it”—potentially shutting the courthouse doors to a wide range of people the government suspects of posing some kind of threat.

However, if Begum is a victim of exploitation, this fact would render it all the more urgent for the UK government to approach her circumstances with a view to support, rights protections, and rehabilitation instead of exclusion. It should also obtain independent evaluations from medical professionals or other trauma specialists before concluding that she poses a threat to others.

Begum, who flew to Syria at age 15, has been harshly criticized in the UK press, which has depicted her as an “ISIS bride.” The Court of Appeal, too, described Begum as someone who “married an ISIL fighter” in the opening paragraphs of its July 2020 judgment. In its official justifications for its decision to strip Begum of her British citizenship in 2019, the Home Office has largely restricted itself to general allegations, such as that she “aligned [sic] with ISIL” in Syria; however, her purported marriage has loomed large in how the public, and presumably the Home Secretary and the courts, view her.

In an astute forthcoming report on gender and State efforts to prevent terrorist violence (A/HRC/46/36), UN Special Rapporteur on counter-terrorism and human rights Fionnuala Ní Aoláin (also an executive editor at Just Security) has critiqued the purported gender-blindness—and actual gender bias—of governments’ national security activities. “Women … are immediately presumed to be suspect by virtue of familial or communal association with particular men,” she writes. While Ní Aoláin was discussing excessive surveillance, her observation is just as applicable in Begum’s case, in which influential press outlets have defined a woman’s identity by reference to her supposed marriage (and by the man’s ideology). Similarly, the Home Office’s assessments of her dangerousness seem to rest on few factors that would suggest an individualized analysis of Begum as a distinct human being.

In reality, Begum’s relationship may have been no marriage at all—and may instead have been part of an episode of child trafficking. In both Syria and the UK, Begum would have been below the legal minimum age for marriage at the time of the supposed wedding in Syria. Additionally, under the Council of Europe Convention on Action against Trafficking in Human Beings—to which the UK is a party—”[t]he recruitment, transportation, transfer, harbouring or receipt of a child” under 18 “for the purpose of exploitation” qualifies as human trafficking. The exploitation need not be sexual; it could involve forced labor or other compelled activities. However, sexual exploitation explicitly counts for the purposes of the trafficking definition found in the treaty.

The Supreme Court’s failure to consider whether Begum is a victim who needs and is entitled to support, rather than a past or potential perpetrator, is partly a result of the questions before it. But the Home Office has no such excuse: the UK has an official “National Referral Mechanism” for identifying trafficking victims, and many Home Office agencies have the authority to refer people to it. Home Office officials therefore have every reason to be aware of legal definitions of trafficking and of the need to approach survivors with a view to offering support, not imposing punishment or making conclusory findings about dangerousness.

Worse, conditions in Roj, the camp in northeast Syria where Begum is now living, are so poor that multiple United Nations experts have called for all States to bring their nationals home immediately. In 2020, Rights and Security International—the organization I now direct—found that people in the camps, which are administered by the Autonomous Administration of North and East Syria, suffer from serious deprivation and danger. Ní Aoláin and other top U.N. human rights experts have stated that people in Roj and al-Hol, the camp where Begum was initially held, “are exposed to violence, exploitation, abuse and deprivation in conditions and treatment that may well amount to torture or other cruel, inhuman or degrading treatment or punishment under international law.” Begum’s own infant son became ill and died in the camps—one of three children she bore and whose deaths she has endured during her time in Syria.

Begum and her lawyers claim that while in the camps, Begum has not been able to participate sufficiently in the legal struggle for her rights, such as by joining hearings virtually; RSI’s research suggests that women in the camps can be punished if caught with a mobile phone. Her inability to participate in her own case was a major part of her argument that the government should give her leave to enter the UK while she appealed the deprivation of her citizenship.

In Begum’s case, the UK’s Special Immigration Appeals Commission, a lower tribunal that handles appeals from people deported under certain provisions, accepted that conditions in Roj amount to inhuman or degrading treatment. However, the Supreme Court left undisturbed the Home Office’s conclusion that any risk that Begum might experience mistreatment in the camps did not depend on whether her British citizenship was restored or remained canceled. The Court, therefore, did not grapple with the practical risk that refusing to allow Begum to enter the UK to pursue her citizenship deprivation appeal will result in continued exposure to torture or other harm—a risk that raises complex and important questions about the UK’s obligations under the Convention against Torture and other international laws.

Begum attracted intense controversy in 2019 after making comments to a reporter that seemed to support the Islamic State and justify violence, and it appears likely that these comments have influenced the courts’ treatment of her appeals against the Home Office’s decision to bar her from the UK. The Court of Appeal recounted Begum’s claim to the journalist that her first glimpse of a severed head in Syria had not bothered her. (The Court of Appeal did not delve into whether trauma experts might cast doubt on such a claim of indifference.)

However, if Begum is a victim of trafficking or other violations of international law, any comments she has made do not affect this status. In the domestic violence field, scholars and advocates have long pointed out that women who do not fit a stereotype of a passive—and White—victim are often regarded with suspicion and denied help. But if Begum is a survivor of trafficking, torture, or other trauma in need of support and treatment, then that’s what she is—regardless of anything she may have said.

The Home Office has argued that Begum could claim Bangladeshi citizenship due to her family origins, and that its decision to remove her British citizenship—which she has had from birth—therefore does not leave her stateless. However, Bangladesh has said Begum is not a citizen and will not be allowed to enter the country. Friday’s UK Supreme Court judgment therefore has the practical effect of leaving Begum stranded in the camps indefinitely, vulnerable to further exploitation, despite a theoretical right to continue pursuing her appeal against the deprivation of her citizenship from outside the UK.

The judgment also closes the door on other British adults in the camps who have been stripped of their citizenship, as well as their family members in the UK who have been searching for a remedy.

This case likely is not over: Begum could bring her arguments to the European Court of Human Rights, or—if possible—try to reapproach the UK courts later. Regardless of her next steps, the UK Supreme Court’s decision is a grievous one for rights—and an example of purportedly gender-neutral national security decision-making that harms women. 

About the Author(s)

Sarah St.Vincent

Executive director of Rights & Security International Follow her on Twitter (@Sarah_StVincent).