Shamima Begum may return to Britain

Human rights laws may come to Begum’s aid in her appeal against loss of British citizenship

Court cases are often concerned with procedure.  Politics, on the other hand, is usually concerned with substance.  Shamima Begum’s desire to return to Britain is about substance: should she be deprived of her British citizenship?  Yes, say most British people who think she forfeited her British citizenship by joining a terror movement that was beheading Britons and was at war with our allies.  Accordingly, in 2019 the then Home Secretary, Sajid Javid, gave legal effect to this sentiment by depriving her of her British citizenship.  This, it should be noted, has not left Begum stateless because according to an earlier judicial ruling she has Bangladeshi citizenship (§121).

The Supreme Court wasn’t concerned with substance

Last week’s Supreme Court decision was concerned with procedure.  Begum has a right of appeal against her loss of British citizenship and she claims that due to her detention in a Syrian camp she cannot properly instruct her lawyers to take part in this appeal.  This may surprise many since Begum has been able to instruct her lawyers to deal with her procedural challenge and she appears to have continuing contact with the press when she seeks it (The Times, BBC and Sky News).  But last year judges ruled, without giving reasons, that due to her detention Begum ‘cannot play any meaningful part in her appeal’ (§143).

Since then an extraordinary quantity of legal resources, all paid for by the public, have been spent on deciding the procedural issue of what to do with Begum’s substantive appeal against the loss of her British citizenship.  In a 193-paragraph ruling the Special Immigration Appeals Commission (‘SIAC’) concluded that Begum’s appeal should be stayed until she was able to play a meaningful part in it.  This decision was reversed by the Court of Appeal in a lengthy ruling.  And last week SIAC’s decision was reinstated in an equally long ruling, this time from the Supreme Court.

Despite involving no less than 14 barristers (nine of them QCs) and five of the UK’s finest judges last week’s ruling has not resolved much at all.  The position remains that Begum’s substantive appeal against the deprivation of her British citizenship has yet to be decided.  No doubt Begum will now find a way of playing a ‘meaningful part in her appeal’, so that it takes place.  So, after the usual legal skirmishes over procedure (which are particularly legion where both parties are funded by the public), the substantive issue can now be resolved.

Human rights as Begum’s ally

In her substantive appeal against loss of citizenship Shamima Begum will have a powerful ally in the Human Rights Act. The British public and the government do not want her back.  But, and it is an important ‘but’, when it comes to immigration and nationality law, public opinion and political will has little to do with it.  What counts is the view of judges exercising powers given to them by human rights treaties.  And these treaties put a premium on individual rights at the expense of collective interests.  In other words, Begum’s individual desire to return to Britain may trump the public’s interests in seeing Begum punished for what is widely seen as a betrayal of her country.

Begum’s appeal may succeed because the court that determines it will, as noted in last week’s Supreme Court ruling, be obliged to decide whether Sajid Javid’s decision was compatible with obligations under the Human Rights Act (§68).  Furthermore, when resolving that issue the court will not have to defer to the Home Secretary’s decision but will make its own decision (§69), ‘its own independent assessment’ as the Supreme Court put it (§71).

This is significant because it means that the view of the Home Secretary, who is accountable to the public, may well differ from the assessment of a judge, who is not.  Judges are accountable to law and when ruling on human rights issues they apply a body of law that for decades has privileged individual rights over collective interests.  The judge who makes the ultimate decision on Begum’s citizenship will have been fed on a diet of human rights laws since 2000, when the Human Rights Act 1998 came into force.

In last week’s ruling, the Supreme Court referred to facts that could be decisive in the eventual human rights assessment of Begum’s appeal.  It noted how ‘the loss of her British citizenship may nevertheless have a profound effect upon her life, especially where her alternative nationality is one with which she has little real connection’.  True, the court also noted how, this personal loss would have to be balanced against ‘the public interest’ (§94).  But it would be a brave man who bets against a judge concluding that the balance is in favour of allowing Begum to retain her British citizenship.

The triumph of ‘me’ over ‘us’

To see how judges balance individual rights and collective interests consider the recently decided case of a Somalian double rapist who resisted deportation on the grounds that his mental health would deteriorate if he was returned to Somalia.  The 49-year-old arrived in Britain in 2004 and claimed asylum.  In the space of six years he amassed eight convictions including robbery, trying to pervert the course of justice and raping two different women.  He used a knife during one rape and had been jailed for more than seven years.  The public interest clearly supported his deportation.

But the public interest was trumped by judges who concluded that deportation was not justified having regard to his long-standing mental health issues and the quality of mental health provision in Somalia.  The man’s human rights were, judges ruled, sufficient to prevent his deportation.

All cases turn on their particular facts, but it is not difficult to see how, given the above illustration, Begum could mount a compelling argument that her human rights would be breached if she were required to live in Bangladesh.  If Begum’s appeal were allowed, this would not be justice, it would be a triumph of ‘me’ over ‘us’.

Do not be surprised if Begum eventually wins a right to return to the UK with a ticket gifted to her by the Human Rights Act. I hope that her appeal fails because a law that ceases to march in step with public opinion is one that will quickly lose public respect. 

Jon Holbrook is the barrister cancelled for challenging the woke

Follow him on Twitter @JonHolb