Begum v Secretary of State for the Home Department [2024] EWCA Civ 152 (23 February 2024)
The Court of Appeal has held that the SSHD had not erred in depriving Shamima Begum of her British citizenship pursuant to section 40(2), on grounds of conduciveness to the public good, of the British Nationality Act 1981 after she had travelled to Syria at the age of 15 and aligned herself with the militant group the Islamic State of Iraq and the Levant (ISIL). The mere fact that there was a credible suspicion that Shamima Begum had been trafficked for the purpose of sexual exploitation did not render the deprivation decision unlawful and nor did the fact that she would be rendered de facto stateless. Shamima Begum had not been entitled to make representations before the deprivation decision was made. Further, she could not rely on the public sector equality duty (PSED) to challenge the decision and the duty was excluded in relation to the decision by the national security exemption in the Equality Act 2010 under section 192. This was the unanimous judgment handed down by Lady Carr LCJ and Bean and Whipple LJJ upon Ms Begum’s appeal against a decision of the Special Immigration Appeals Commission (SIAC) to uphold the SSHD’s decision to deprive her of her British citizenship. Ms Begum born in the UK in 1999. Through her parents, she had Bangladeshi citizenship which would expire on her twenty first birthday. In 2014, a friend of Ms Begum had travelled to Syria to join ISIL. Her school considered that she could be at risk of also going to Syria, but the police investigated and concluded that she was not at risk.
However, in 2015, aged 15, Ms Begum travelled to Syria, aligned with ISIL, and she was married to an older man. ISIL then suffered military defeats and Ms Begum surrendered to opposing forces in 2019. She wished to return to the UK. However, the SSHD decided to deprive her of British citizenship on national security grounds. Ms Begum appealed to SIAC. She was not permitted to return to the UK to pursue her appeal. SIAC found that there was a credible suspicion that she had been trafficked for the purpose of sexual exploitation and that the authorities’ actions before her departure arguably breached their duties to protect her. SIAC nevertheless held that she was now beyond its protection and that trafficking was not relevant to the deprivation decision. The police concluded that Ms Begum was not at risk. SIAC said that this conclusion may be thought to be “somewhat myopic”. Ms Begum’s school considered that due to her friendship ties with Sharmeena Begum (who enticed others to join ISIL) there was a risk that she could be encouraged to leave her family, and possibly the UK, and go to Syria. However, SIAC concluded that it appears that the school allowed the police assessment to overrule that concern. Until her departure to Syria in February 2015, Ms Begum was living with her mother and older sister in Tower Hamlets. On 17 February 2015, Ms Begum and her two friends gave their families false reasons as to why they would be absent that day. They travelled together to Gatwick Airport. Ms Begum used her sister’s passport which she had stolen. They went to Istanbul on a Turkish Airways flight and then quickly proceeded to Syria to join ISIL.
Court of Appeal
The grounds of appeal raised in the Court of Appeal by Ms Begum related to trafficking: article 4 (ECHR), trafficking: common law, de facto statelessness, procedural unfairness and the breaching of the PSED by the SSHD. Lady Carr LCJ and Bean and Whipple LJJ unanimously dismissed the appeal on all grounds.
(i) Trafficking: Article 4 of the ECHR
Ms Begum argued that the SSHD failed to take into account the possibility of a breach of article 4 of the ECHR by the UK authorities. However, the relevant question was whether the credible suspicion that she had been trafficked, and the possible breaches of article 4 consequent upon that suspicion, amounted to an obviously material consideration for the SSHD in making the assessment of whether to deprive her of her citizenship, according to the Wednesbury irrationality test. In particular, Ms Begum’s counsel relied heavily on the case of VCL v United Kingdom (2021) 73 EHRR 9 where the ECtHR held that it followed that “as soon as the authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual suspected of having committed a criminal offence may have been trafficked or exploited, he or she should be assessed promptly by individuals trained and qualified to deal with victims of trafficking.” Nevertheless, there was no doubt in the court’s mind that applying R (Friends of the Earth Ltd and another) v Secretary of State for Transport [2020] UKSC 52, “a decision-maker may not advert at all to a particular consideration” and “in such a case, unless the consideration is obviously material according to the Wednesbury irrationality test, the decision is not affected by any unlawfulness.”
The Court of Appeal accepted the submission that in circumstances where the statute did not identify what considerations were to be taken into account (as section 40 did not), it was necessary to define the threshold or test for determining whether—and if so which— considerations needed to be taken into account. Indeed it was for the SSHD to determine what factors counted as material, which was itself a matter for the rational judgment of the SSHD. Parliament had confided the discretion under section 40(2) to the SSHD and it was for him to determine what was or was not a relevant consideration, subject of course to a rationality challenge. Lady Carr LCJ and Bean and Whipple LJJ held that:
61. We do not consider that the authorities relied upon by Ms Knights make good her submission that the possibility of Article 4 breach was a necessary part of the assessment of whether or not deprivation was conducive to the public good. This was not the issue under consideration in the authorities in question. Thus, for example and as explored in greater detail below, VCL related to the quite different question of a State’s right to prosecute a putative victim of trafficking.
62. Rather, the approach to be adopted is the well-established public law test identified in the line of authorities including Friends of the Earth. The question for us is whether the credible suspicion that Ms Begum was trafficked (and the possible breaches of Article 4 consequent upon that suspicion), taken alone or together, amounted to an obviously material consideration for the Secretary of State in the assessment of whether to deprive Ms Begum of her citizenship, according to the Wednesbury irrationality test.
In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, the ECtHR decided that trafficking within the meaning of article 4 of ECAT fell within the scope of article 4 of the ECHR. Notably, the state had a positive obligation to prevent, to investigate, to protect and to punish. Ms Rantseva was a young Russian woman working in a cabaret in Cyprus and she wished to return to Russia but was apprehended by the cabaret manager who took her the police (who consigned her to the manager after which she was found dead outside the apartment of a male employee of the cabaret). Upon her father’s complaint, the ECtHR had to address whether the issue of trafficking, under the Palermo Protocol (in force at the material time) and ECAT (in force later), fell within the scope of article 4, despite the fact that it referred only to slavery, forced labour and servitude.
In Rantsev the ECtHR said that it considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership, treating human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere. The court said that article 4 entails a procedural obligation to investigate situations of potential trafficking. Credible suspicion was not in dispute in this case and applying VCL the first stage in any article 4 assessment is to ask whether it has been demonstrated that the State authorities were aware—or ought to have been aware—of circumstances giving rise to a credible suspicion that an identified individual had been, or was at, a real and immediate risk of being trafficked or exploited. The second stage is to establish what duties and obligations flow from that credible suspicion of trafficking. The framework of article 4 includes positive obligations of a legislative, operational (protective duty, recovery duty, and non-punishment principle) and investigative nature. Indeed, the operational and investigative duties were undisputedly in issue in this case. SIAC’s view that there was only an “arguable” case for UK State failure and delay from 2015 to 2019 in making the deprivation decision were two points obstructing the application of the investigative duty. Therefore, the Court of Appeal held:
78. … In our judgment, these obstacles are fatal to the argument that the UK authorities owed Ms Begum a protective duty under Article 4 at the time of the deprivation decision. More relevantly, it cannot be said that the possibility of the existence of such a duty should have been taken into account: there was nothing in this regard for the Secretary of State to take into account, let alone something obviously material.
The SSHD argued that, because Ms Begum was in 2019 not within the jurisdiction of the UK for the purposes of article 1 of the ECHR, no issue under article 4 of the ECHR could arise. Rantsev emphasises that the duty to take “appropriate measures” to protect victims or potential victims must be interpreted “in a way which does not impose an impossible or disproportionate burden on the authorities”. VCL repeats this and refers at to the need to bear in mind the difficulties involved in policing modern societies and the “operational choices which must be made in terms of priorities and resources”. The two aspects of the duty to take due operational measures are to protect the victim of trafficking from further harm (the protective duty) and to facilitate the victim’s physical, psychological and social recovery (the recovery duty). The recovery duty did not require a State to repatriate a trafficking victim so that they could receive support within the jurisdiction. Further, Ms Begum was outside the jurisdiction, so there was no question of her now being provided with support. And therefore there was nothing arising as part of the recovery duty which might have been material to the deprivation decision.
Notably, prosecuting trafficking victims could breach the protective duty. But that non-punishment principle was not engaged on current facts. While Ms Begum argued that deprivation was arguably a breach of that principle, there was no domestic or Strasbourg authority holding that it extended beyond criminal prosecutions.
There had been no obligation on the SSHD to take into account the possibility that there might be a duty to investigate the circumstances of her trafficking or to consider whether any such investigation would be enhanced by her presence in this country. She argued that any investigation could only be effective if she were present in the UK to assist it, but that was tantamount to an obligation to repatriate, and there was no such obligation. The Court of Appeal’s summary conclusion on article 4 was that:
91. Ms Begum was outside the jurisdiction and outside the control of the UK Government when the decision was made to deprive her of her citizenship. There was no obligation under the ECHR to repatriate her in 2015 or 2019 and there is none now. Further, the focus of a deprivation decision on the grounds of national security must be the assessment of risk. We do not accept that an individual who is assessed as presenting a risk to national security must be repatriated, or even that the Secretary of State is required to consider her repatriation, in order to meet obligations which might be owed under the protective duty, the recovery duty or the investigative duty (noting that any putative investigation would concern offences committed by other people, or State failures to protect her, four years earlier). Further, we do not accept that the non-punishment principle extends to a decision to deprive her of her citizenship on national security grounds or that a restitutionary duty exists even arguably on these facts.
92. We are not persuaded that there is any substance to any of Ms Knights various arguments alleging possible Article 4 breaches, whether considered separately or together. Adopting the approach identified above, Article 4 gave rise to no obviously material consideration for the Secretary of State to consider in the context of the s 40 decision. Indeed, even adopting the approach suggested by Ms Knights, we would not have concluded that there had been any material failure. On the basis of the open arguments, Ground 1 fails.
Next, the court addressed the common law ground.
(ii) Trafficking: common law
The court found that there had been no material shortcoming arising out of any failure to take account of the possibility that Ms Begum had been trafficked for sexual exploitation. Further, the SSHD had been aware of the circumstances of her departure to Syria, and the likelihood that she was a child victim of others and SIAC had been entitled to find that the intelligence services advising the SSHD had the expertise to make judgements on whether a person’s conduct was voluntary. Moreover while Ms Begum could have been influenced by others, she could still have made a calculated decision to travel to Syria and align with ISIL. The degree of voluntariness was relevant to the question of national security risk— assessing that risk was a matter for the SSHD.
(iii) De facto statelessness
The court explained that section 40(4) of the 1981 Act prohibited the SSHD from making a deprivation order if he was satisfied that the order would make a person stateless. It was common ground that “stateless” in section 40(4) meant de jure statelessness as was stated in Pham v SSHD [2015] UKSC 19.
Ms Begum submitted that the SSHD had failed to take account of the fact that deprivation would render her de facto stateless, as her Bangladeshi citizenship was to expire. But the SSHD had taken that matter into account and decided to deprive her of British citizenship nonetheless on grounds that to do so was conducive to the public good and in the interests of national security.
(iv) Due process
The SSHD had challenged a finding by SIAC that Ms Begum was entitled, as a matter of procedural fairness, to make representations before he took the deprivation decision.
Overall, one of the main purposes of section 40(2) was to protect the public from threats to national security. In Al-Jedda (No. 2) v SSHD (SC-66-2008, 18 July 2014), it had been decided that there was no duty of prior consultation before a deprivation order was made on national security grounds. This germane principle was to be applied.
In B4 v SSHD (SC/159/2018), SIAC said that “the general rule in national security cases is that there is no duty to seek representations before making the deprivation order” and “this is because the very act of seeking representations would be contrary to the national security of the UK: the individual would take immediate steps to return, in the knowledge of what was about to happen.” There was no rowing back from this proposition and the Court of Appeal clarified that:
107. SIAC sought to step back from this statement of the general rule. However, in our judgment, the general rule identified in B4 for national security cases is apt. To notify a person abroad of an intention to remove their citizenship could obviously act as an encouragement to that person to return to the UK pre-emptively.
The court followed U3 v SSHD [2023] EWCA Civ 811 where it was stated the procedure for deprivation is inherently unfair, on two accounts—namely that the appellant has no input into the decision and the decision is based in part on material which she never sees. The existence of a right of appeal to SIAC, coupled the risk of pre-emptive action by the person concerned if prior notice was given, were compelling reasons to construe section 40(5) of the 1981 Act as excluding the right of any prior consultation before a deprivation decision was made on the grounds of national security. Accordingly, SIAC had fallen into error. However, that made no difference to the outcome, because nothing could have been said which might have made a difference.
(v) Public sector equality duty
Ms Begum argued that the SSHD had failed to have regard to whether deprivation was disproportionately applied to British Muslims of certain ethnic minorities, engaging the public sector equality duty (PSED) under section 149(1)(a) of the Equality Act 2010 and/or impacted detrimentally upon relations between members of Muslim communities and others, engaging section 149(1)(c). However, the equality duty was excluded in relation to the deprivation decision by the national security exemption in section 192. Section 192 did not only apply in respect of breaches of the 2010 Act itself. In section 192, “doing … anything” referred to any exercise of powers: it was not restricted to the breach of duties imposed by the 2010 Act.
(vi) Conclusion
Dismissing Ms Begum’s appeal from the decision of SIAC, the overall view of the Court of Appeal was that:
138. Deprivation decisions often have severe consequences (as demonstrated in the U3 case where the decision resulted in the permanent separation of a mother from her children). It could be argued that the decision in Ms Begum’s case was harsh; it could also be argued that Ms Begum is the author of her own misfortune. But it is not for this court to agree or disagree with either point of view. Our only task is to rule on whether the decision made under s 40 was unlawful.
A closed judgment was given by Whipple LJ with which Bean LJ and the LCJ Baroness Carr of Walton-on-the-Hill agreed.
Comment
Ms Begum’s case has an extensive litigation history. It has already been in the Supreme Court once. Ms Begum’s solicitor explained that “I think the only thing we can really say for certainty is that we are going to keep fighting .. we are not going to stop fighting until she does get justice and until she is safely back home.” The fact that there was a credible suspicion that she had been trafficked for the purpose of sexual exploitation did not render the deprivation decision unlawful. Overall, the trafficking argument failed Ms Begum in the Court of Appeal as did the rest of her arguments on de facto statelessness, procedural unfairness and breaches of the PSED. In past proceedings, Ms Begum won in the Court of Appeal but the SSHD emerged victorious in the Supreme Court—she will be hoping that the court will accept her trafficking plea, and other arguments, on appeal from the present judgment.
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