By: Henry Smith, Junior Research Associate, PILPG-NL
On February 26, 2021, the Supreme Court (SC) of the United Kingdom (UK) upheld the Home Office’s decision to deny Shamima Begum the right to return home and personally contest the revocation of her British citizenship. This decision overturned a previous ruling by the Court of Appeal (CA). The SC’s decision has sparked criticism for supposedly setting a precedent for the Home Office to disregard the human right to a fair trial and procedural safeguards. This post will look at how the SC balanced the right to a fair trial and national security interests, how its approach differed from the CA’s approach, and the problems that it may cause.
Facts of the case
Shamima Begum left the UK in February 2015, at 15 years of age, to join the Islamic State (IS) in Syria. Four years later, Begum was captured by Syrian Kurd forces and taken to a detention camp, where she was later found by journalists.
The UK Home Office, the state department responsible for immigration and security, immediately stripped Begum of her British citizenship based on Section 40 of the British Nationality Act of 1981, which provides that any person may have their citizenship revoked in the interest of the “public good.” The argument was that Begum was a member of IS and, therefore, posed a threat to national security.
Begum requested leave to enter the UK so that she could appeal in person the decision that canceled her citizenship, but the Home Office rejected the request. She took the claim to the CA which ruled in her favor, determining that she should be allowed to enter. In turn, the Home Secretary appealed to the SC, which overturned the ruling and held that the decision to allow her re-entry was at the discretion of the Home Secretary.
Balancing national security and the right to a fair trial
The main point in which the SC diverged from the CA was the balancing between Begum’s right to a fair trial and national security concerns.
The CA first rejected the assessment made by the Home Office of the national security risks posed by Begum’s re-entry. It argued that Begum posed a less serious risk than other individuals who had previously been denied the right to return on the grounds of national security because she had never actively engaged in hostilities. According to the CA, the potential risk posed by her return could be managed by arresting her upon arrival and keeping her in custody until the end of the trial. The CA then asserted that Begum’s right to a fair trial outweighed the national security concerns. As a result, the only solution would be to grant her leave to enter the UK so that she could effectively appeal the canceling of her citizenship.
The Supreme Court concluded differently. With regards to the national security risks posed by Begum’s return, the SC affirmed that the CA should not have made its own assessment. Instead, it should have accepted the assessment made by the Home Secretary, who had been entrusted with that responsibility by the democratically elected Parliament. As for the conflict between the right to a fair trial and national security, the SC argued that the latter should not prevail over the former. According to the SC, if a public interest makes it impossible for a case to be heard fairly, then courts cannot hear it. The SC acknowledged that it would be impossible for Begum to fairly appeal the cancelation of her citizenship while detained in Syria. It determined that her appeal should be suspended until she “is in a position to play an effective part in it without the safety of the public being compromised.”
Assessment of the Supreme Court’s decision
Two main criticisms arise from the SC’s conclusion. Firstly, it renders Begum’s right to appeal the cancelation of her citizenship virtually meaningless. The hearing of her appeal would depend on her leaving the detention camp in Syria. However, her best chance of leaving is through a successful appeal. If Begum’s British citizenship were reinstated, the UK could the be under the obligation to repatriate her as a means to secure her right to life and her freedom from torture or inhumane treatment, as established in the European Convention on Human Rights. The existence of such an obligation is the subject of similar cases brought by French women against France before the European Court of Human Rights. In effect, the SC’s decision leaves Begum in a contradictory situation where she can only appeal if she leaves the detention facility, which in turn will most likely only happen after a successful appeal.
Secondly, it sets a precedent for the UK Home Office to act with a high degree of discretion in assessing national security matters. While it can be argued that the Home Office has the democratic legitimacy to make these assessments, the courts should be able to evaluate whether fundamental safeguards have been observed. By refusing to do so, and leaving the decision entirely up to the Home Office, the SC might be removing from the courts the capacity of ensuring the observance of legal safeguards. This is particularly concerning considering that there are estimates of 50 British women and children being held in Syrian detention camps under conditions which may amount to torture or other inhumane treatment, as described by a United Nation’s Special Rapporteur.
Concluding remarks
While the SC’s decision to suspend Begum’s appeal was intended to secure her right to a fair trial without trumping the Home Office’s national security concerns, the SC effectively rendered it extremely unlikely that she could exercise her right to appeal the cancelation of her citizenship. Additionally, it conferred on the Home Office a considerable amount of discretion in determining those security issues. It remains to be seen how this precedent will impact the cases of others who are still detained in similar circumstances.