Category: Legal

Shamima Begum ruling: a threat to the right to have rights

A summary and critique of revoking citizenship.

In 2015, Shamima Begum, then a fifteen year old child, and two of her friends left the United Kingdom, after being groomed online by ISIS members to join the terrorist organisation. She subsequently married an ISIL fighter upon arriving in Syria. When Shamima Begum was 19 years old, the then Home Secretary Sajid Javid stripped her of her UK citizenship, citing national security issues as well as the argument that she had Bangladeshi citizenship. The South Asian country had made it clear that they would not accept her and would execute her if she came on its territory.

The questions which should have arisen are: firstly, with respect to Britain’s internet security and safety laws, how was a fifteen year old child able to be exposed to a terrorist organisation to the extent that she was groomed into moving to Syria? And secondly, how was Shamima Begum able to go through British airport security using her sister’s passport?

In February 2023, the Special Immigrations Appeal Commission upheld the Home Office’s decision to strip Shamima Begum of her British citizenship. Begum argued against the removal on nine grounds, however for the sake of brevity and ensuring layman readers are aware of the key parts of the judgement, this article will only focus on two grounds of appeal. The first ground of appeal was that the Home Secretary had failed to consider that she may have been trafficked into Syria and that they had contravened their own policy. The second ground of appeal was that the UK government had failed to meet its obligations under Article 4 of the European Convention on Human Rights (the right not to be held in slavery or servitude) in not providing Shamima Begum protection and instead revoking her citizenship and leaving her stranded in a camp in North-East Syria. 

The Commission found that there is credible reason to believe that Begum had been trafficked into Syria to be sexually exploited and that many State institutions had failed in their duty to prevent her from leaving the country as she did and making her way from Turkey to Syria. However, it held that a credible suspicion as to whether the young girl had been trafficked was not enough to restrain the Home Secretary’s power to strip her of British citizenship.

The Commission also found that the Home Secretary was under no formal obligation to consider whether she had been trafficked in his decision. Another finding of the judgement is that the Home Secretary’s advisers had painted a simplistic picture of Begum’s travels to Syria to join ISIS, and that the conclusion that she had chosen to go on her own accord was an insensitive and blunt one. However, it held that the conclusion was an important part of the Security Services’ national security assessment. In other words, national security is allowed to trump human trafficking concerns in this case. 

Importance + Critique

The deprivation of citizenship is a decision which should not be considered lightly (After all, it was Hannah Arednt who said that citizenship should be the right to have rights). This is the case in many parts of the world, including the United Kingdom.

Since 2006, 173 people had been deprived of their UK citizenship due to national security reasons and 289 people had been deprived of their citizenship due to reasons pertaining to fraud. Before that, the UK government had not taken such a decision since 1973. 

The case of Shamima Begum at the SIAC is a bewildering one. The Commission found that it was possible that Begum was trafficked into Syria and that the Home Secretary had been given a one dimensional picture of the situation by his advisers, yet these factors did not help Shamima’s case. Colin Yeo highlights the fact that the Home Secretary not having to consider the trafficking element of the case should have been enough to conclude that the deprivation of citizenship was unlawful. This is due to the Commission’s judgement stating that the Home Secretary need not give weightage to the trafficking factor. This is different to not considering a factor at all.

The committee has also acknowledged that Ms. Begum had Bangladeshi citizenship till the age of 21 and is no longer a citizen of that country. However, that did not stop them from leaving her stateless by denouncing her citizenship. 

The implications of this judgement are varied and many. Most importantly, citizenship is not a matter of right and may be taken away at any point in time in the eventuality of non adherence to national laws, which while prudent and just, also means that there is no room for redemption, especially for people of colour. The fact that the Home Office was able to deprive Shamima of her citizenship, thus rendering her stateless, puts non-British origin people of the United Kingdom at risk. Shamima Begum’s case is unique, not because she is the first person to lose citizenship, but because throughout the trial, she was treated as an adult and not a child. She was not seen as a child who was groomed into joining ISIL, trafficked and then sexually abused by an adult and forced to bear children. She was seen as an adult who had voluntarily joined the terrorist group, came to regret it and then wanted the UK government to help her leave. Adultification of children of colour is common in institutions and leads to (as is the case here) the rights and protection of children not being guaranteed.

As of now, the judgement upholds the logic of the government’s decision to deprive citizenship. This means the government can deprive people of citizenship without giving weightage or any consideration to any mitigating circumstances. The Home Secretary can put these factors aside and allow national security to trump all rather than balancing the rights of the individual along with national security considerations. What would this mean for victims who were trafficked into committing serious crimes or joining organisations which engage in such activity? Trafficking in general is a very complicated and nuanced issue in the law, and for the government to be allowed to make decisions in such cases hastily with very simplistic advice means that the government is allowed to make a strong, miscalculated legal move on a whim. 

This case is most likely to go to the European Court of Human Rights (the highest ranking Court a case in the UK can go to). One can only hope that the Court carries out its duty of upholding the rights of Shamima Begum and reversing the precedent set by the Special Immigration Appeals Commission. 

Rwanda Plan: breakdown of the judgment

This article will summarise the key facts of the recent High Court ruling on the UK government’s policy of sending unsuccessful asylum seekers to Rwanda, the critiques of the ruling as well as the implications the ruling will have on the future of immigration control and human rights. This article will also explore whether the Rwanda policy is an effective deterrent against small boat crossings and an effective use of the public purse and resources. 

In December 2022, the UK High Court passed an influential and controversial judgment. In the judgment, the Court held that the government’s much criticised policy to send unsuccessful asylum seekers to Rwanda is lawful. The case at the Court involved eight asylum seekers from Iraq, Iran, Syria, Vietnam, Albania and Sudan who argued that their asylum requests should be reviewed in the UK and not in Rwanda, reasoning that their claims would not be sufficiently examined in the country. They also argued that the Home Secretary’s legal analysis, which surmised that the East-Central African country was a “safe country”, was flawed. Asylum seekers highlighted that if sent to Rwanda, they would face maltreatment, which would amount to a human rights violation, and contended that the UK government sharing their data with the Rwandan authorities before their claims had been concluded was unlawful. Other arguments contested the fairness of government procedure, highlighting how it punishes asylum seeking (which is against international law) and discriminates against young male asylum seekers from countries (except Ukraine). The case saw interventions from NGOs, one border force officers’ union as well as the UN High Commissioner for Refugees (UNHCR).

The Court disagreed with the asylum seekers, finding that the Home Secretary had taken reasonable steps in her analysis to conclude that Rwanda is a “safe country”. The Court also maintained this despite human rights abuses against dissidents and political asylum seekers, as highlighted by the asylum seekers’ legal team. Furthermore, it is permissible for the Home Office to contact Rwandan authorities regarding an asylum application before its conclusion and lawful to share data before an application is settled, if reasoned in the name of public interest. Against the grain of public opinion, the Court found that any indirect discrimination against male asylum seekers of certain nationalities is justified. The judgment also found that the process used for the Rwanda decisions is fair and that there is no need for asylum seekers to have legal representation during the process or legal advice before their screening interview. The Court concluded that the policy does not punish asylum seekers.

Since the UK is party to the 1951 Refugee Convention, has the High Court erred in its ruling that the Rwanda policy does not violate Article 31 (non-penalty for “illegal” entry) and Article 33 (non-refoulement) of the Convention? Arguably, yes. It is baffling that the Court considered credible human rights reports (from Human Rights Watch and the General Human Rights in Rwanda) to be irrelevant to its analysis of Rwanda as a safe country. These reports specifically highlight the treatment of protesting asylum seekers and political dissidents respectively. Sending those fleeing persecution to a country with an unsatisfactory human rights record does little but extend their suffering. Furthermore, the government’s travel advice on Rwanda states that LGBTQIA+ people suffer discrimination and abuse, “including from local authorities”, and that there is a lack of legal protection for LGBTQIA+ people. Enver Solomon (Chief Executive of the Refugee Council) wrote in The Guardian that the policy “takes punishment of fellow human beings to a new level“.

This case shows that the “depressing and distressing” policy is here to stay (unless there is success on the partial appeal at the Court of Appeal). It is also a stark reminder of the state of human rights post-Brexit, as the Home Office does not need to do a thorough examination of the asylum seekers’ claims, since EU law no longer applies to the UK. This fits into the backdrop of a wider regression of human rights which have been upheld by the judiciary when challenged (e.g: the deprivation of citizenship in the Shamima Begum case). Given that the government is considering leaving the European Convention on Human Rights, the precedent set by this case will play a more significant role in future deportations to Rwanda, as asylum seekers will not have the protection of the ECHR to challenge any Home Office decision. 

Until then, the next steps will be the Court of Appeal, with no flights commencing whilst appeals are underway, and continued advocacy by Asylum NGOs and legal teams on an individual case by case basis. The operation and impact of the Rwanda Plan still remains to be seen, however the Australian offshoring model provides the UK with a cautionary tale: it did not intercept the smuggling business model, slow migration numbers nor protect refugees from criminal gangs. It also created the highest rates of mental illness amongst detainees ever recorded.

To those who oppose the Rwanda Plan, the silver lining remains the huge undertaking of an offshoring scheme. The Home Office will need to make “legally defensible decisions in individual cases” to deport anyone, and UK 2021 figures show only 113 asylum seekers were successfully removed. Leading immigration barrister Colin Yeo stresses the history of abandoned Home Office schemes and suggests the plan serves more as a “distraction from the asylum backlog and other issues”. On the other side of the process, Rwanda has only agreed to accept a few hundred asylum seekers per year, which begs the question – with £140 million already banked, could its government be relying on a failure within the chain of command? In any case, Rwanda has no need to overextend its end of the bargain. 

Set against a historical low in successful deportations, the Rwanda Plan reveals more than a hemorrhage of time and public resources, but a UK government with little to offer. Instead of building an accessible asylum system with opportunities for refugee self-reliance, the ‘out of sight’ mentality remains the UK’s preferred option. With maze-like bureaucracy and a huge asylum backlog, is the Home Office even benefitting from further unworkable proposals? And most importantly – is offshoring our problems really a sustainable approach?