Shamima Begum: The Special Immigration Appeals Commission's Judgment Of 22 February 2023

• Law Firm: Richmond Chambers Immigration Barristers
• Subject Matter: Government, Public Sector, Immigration, Terrorism, Homeland Security & Defence, General Immigration
• Author: Mr Alex Papasotiriou
• Published date: 07 March 2023

On 22 February 2023, the judgment of the Special Immigration Appeals Commission in the appeal of Shamima Begum against the Home Secretary's decision to deprive her of her British citizenship was published. Due to SIAC's function and the nature of the appeals before it, only the OPEN judgment is published. SIAC also considered CLOSED materials, namely sensitive information that it is not in the interests of national security to disclose, with the assistance of Special Advocates and set out its reasoning in a CLOSED judgment that is not published.

The OPEN judgment was given by Jay J, Chairman of SIAC. Following the Supreme Court's decision in Begum v Secretary of State for the Home Department [2021] UKSC 7, where three preliminary issues were considered, the matter returned to SIAC with amended grounds.

The Grounds pleaded were as follows:

1. The Secretary of State failed to take into account a mandatory relevant consideration and/or failed to undertake proper inquiries into it, that Ms Begum may have been a victim of trafficking.
2. The decision to deprive Ms Begum of her British citizenship was in breach of section 6 of the Human Rights Act 1998, as it was not compatible with Article 4 ECHR, because there was a credible suspicion that she had been trafficked.
3. The Secretary of State failed to undertake proper inquiry into the consequence of the deprivation decision to render Ms Begum de facto stateless, which was a relevant consideration.
4. The deprivation decision was procedurally unfair as Ms Begum was not afforded the opportunity to make representations.
5. The deprivation decision had been pre-determined, or the evidence gave rise to a risk this was the case.
6. There was an unfair or one-sided presentation of the risk posed by returnees, on the basis of which the deprivation decision was made.
7. There was a failure to comply with the public sector equality duty ("PSED").
8. The Secretary of State's national security assessment was irrational or there were less intrusive measures capable of dealing with any risk posed by Ms Begum.
9. The deprivation decision was disproportionate under the common law and Article 8 ECHR.

Held

Ground 2, namely that Ms Begum's Article 4 rights were violated by the decision to deprive her of her British citizenship was considered first, followed by Ground 1. This involved the argument that the Secretary of State failed to consider mandatory relevant considerations relating to trafficking and applied an unlawful policy. Ground 8 was considered third. This case note will outline SIAC's consideration of Grounds 1-4 and 8.

Article 4 ECHR

SIAC concluded that there is a credible suspicion that Ms Begum was trafficked. It was found that there were State failures and possible violations of Article 4. However, the scope of the appeal required specific consideration of whether the deprivation of Ms Begum's citizenship amounted to a breach of her Article 4 rights. The investigative duty under Article 4 was considered first. In view of the fact that Ms Begum was outside the UK when the decision to deprive her of her citizenship was made, it was found that a violation of Article 4 would occur only if the Secretary of State were obliged to repatriate her in order to effectively investigate her trafficking circumstances. It was held that the National Referral Mechanism policy did not include a duty to repatriate...