Press Statement on behalf of Shamima Begum 22 February 2023
Statement on behalf of Shamima Begum 22 February 2023
1. We the lawyers entrusted with the representation of Ms Begum in circumstances of extreme difficulty, register our profound disagreement with the decision taken by the Home Secretary in 2019 and the diminution by the Supreme Court of the ability of the Special Immigration Appeals Commission to consider her legal challenges. The outcome is that there is now no protection for a British child trafficked out of the UK if the Home Secretary invokes national security.
2. In its judgment the Commission points again and again to the Supreme Court’s decision; that it can only look at administrative law grounds which allow an almost impenetrable deference to the Secretary of State in reaching conclusions where national security is raised despite the Commission’s comments that “many right thinking people will strongly take issue with the assessment of those advising the Secretary of State” .
3. The Commission makes significant findings in favour of Ms Begum’s case (see below) and against the Secretary of State, yet concludes they are not enough to dislodge the Secretary of State’s decision on the narrow administrative law challenges available. The Commission’s hands, it considers, are tied by the alteration by the Supreme Court of its role – it is no longer allowed to come to its own decisions on the merits of a case as a whole. On the key issues, it must defer to the Secretary of State. Once that is accepted, it is hard to see what part an appeal against this draconian decision can play. Core Facts
4. The fundamental facts of Ms Begum’s case are these; that a 15 year old British child was in 2014/15 lured, encouraged and deceived for the purposes of sexual exploitation to leave home and travel to ISIL controlled territory for the known purpose of being given, as a child, to an ISIL fighter to propagate children for the Islamic State.
5. The same basic facts had applied to other British children who had however been successfully stopped in the UK from travelling to ISIL territory; their cases were dealt with by the UK Family Courts with an understanding of their vulnerability and of State responsibility.
6. Referring to successive cases (also within the Borough of Tower Hamlets) Hayden J, in the Family Court held “There is no doubt in my mind that young women have been specifically targeted. The reality is that the future for such girls holds only as we know, exploitation, degradation and the risk of death. In other words, these children with whose future I have been concerned have been put at risk of really serious harm and as such the state is properly obligated to protect them” .
7. Ms Begum and her two friends were not stopped (as a result of a litany of failed opportunities by the police, school and local authority in respect of their statutory duties). The Commission held that: “It is also arguable, in the Commission’s judgment, that there were State failures, and possible violations of the [State’s] corollary protective duty, between December 2014 and February 2015. There is force in the submission that these could be investigated” .
8. By contrast with those who were successfully prevented from travelling, those for whom that protective duty was met, Ms Begum has been denied the same approach. That was even though the Commission concluded the following:
(i) “On the basis of what is in the public domain, any fair-minded person would have to agree that Hayden J’s generic predictions as to what could well happen to those exploited in this way have been amply borne out in Ms Begum’s case. She was “married off” to an ISIL fighter shortly after her arrival in Syria and spent much of the following four years pregnant. Her three babies have all died. She remained in ISIL territory until January 2019 at which time she was in the ninth month of her pregnancy (her third child died in March 2019, three weeks old). Whatever the extent of her ideological commitment before she left in February 2015, Ms Begum could not have had any inkling of how much personal suffering she was destined to endure” ;
(ii) There is a credible suspicion that Ms Begum was trafficked .
(iii) There were possible violations of the state’s protective duties in the months leading up to Ms Begum’s departure in 2015, which were not and have never been properly investigated .
(iv) “There is a credible suspicion that Ms Begum was recruited, transferred and then harboured for the purpose of sexual exploitation” .
(v) “Trafficking in human beings is an international crime and a form of modern slavery”. “A repulsive strikingly malignant practice, as damaging in its impact on victims as was its historical predecessor ”.
(vi) The legal policy underlying Article 4 of the Council of Europe Convention on Action Against Trafficking in Human Beings and Article 4 of the European Convention on Human Rights (prohibiting slavery) is that children are victims and are deemed not to have acted voluntarily. Consent is irrelevant.
(vii) The Commission refers to the Secretary of State’s assessment that “the primary role for most women will typically be as wives of fighters and mothers of their children, raising the next generation of fighters and “citizens” in the caliphate” . The Commission also concluded:
(viii) In respect of the timing of the Secretary of State’s decision to deprive Ms Begum of her citizenship that “it is clear from all the material we have seen that, from the moment the news story broke, this decision would have to be made quickly. Political rather than national security factors drove the outcome” , and
(ix) The Commission expressed its concern about the impact of the decision to deprive Ms Begum on the wider Muslim community and concluded that there was “nothing” in open which indicates the Secretary of State has “addressed his mind to the real issue here, which is that many rightthinking people in this country’s Muslim communities (and beyond) feel that they are being treated as second-class citizens, and/or that their welcome is somehow contingent” .
9. Despite all of the above, the implications are swept aside in following a narrow administrative law route to challenge a Secretary of State’s discretion in relation to a claim of national security. The Commission considered that: “In one sense, he held many of the best cards, the decision of the Supreme Court in Begum having placed them in his hand.” . Considering itself bound by the deployment of these cards, the Commission concludes – “The assessment essentially for the Secretary of State (arguing the key focus of deprivation must be the threat to national security) should be seen through the Supreme Court decision” . The Commission accepts the Secretary of State’s argument that trafficking is not a mandatory relevant consideration for the purposes of deprivation of nationality.
10. We believe that on Ms Begum’s behalf we correctly argued the breadth and depth of State obligations toward trafficked persons and children in particular. The Commission, however, concluded that it could not conduct a full merits appeal as it was previously able and as a result could not conclude that the Secretary of State’s decision was unlawful in administrative law terms. On behalf of Ms Begum, we disagree that this should be the inevitable outcome in this case, described by the Commission as one of “great concern and difficulty”  with “the evaluative judgments on the essential questions often finally balanced” .
11. What the Commission did not do is endorse Mr Javid’s statement in September 2021 that: “You haven’t seen what I saw … If you did know what I knew … you are sensible, responsible people, you would have made exactly the same decision, of that I have no doubt.” In fact this Commission, which saw exactly what Mr Javid saw, repeatedly noted that many reasonable people would profoundly disagree.
12. Regrettably, this is a lost opportunity to put into reverse a profound mistake and a continuing injustice. Ms Begum remains in unlawful, arbitrary and indefinite detention without trial in a Syrian camp. Every possible avenue to challenge this decision will be urgently pursued. In our view, that demands the Secretary of State must carefully review the original decision in light of the Commission’s troubling findings.
Gareth Peirce Daniel Furner
22 February 2023