“(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good. … (4) The Secretary of State may not make an order under (2) if he is satisfied that the order would make a person stateless. … (5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying - (a) that the Secretary of State has decided to make an order, (b) the reasons for the order, and (c) the person's right of appeal under section 40A(1) or undersection 2B of the Special Immigration Appeals Commission Act 1997 . …”
“2B. A person may appeal to the Special Immigration Appeals Commission against a decision to make an order undersection 40 of the British Nationality Act 1981 (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2) …”
“The case comes before me consecutively with a number of other cases within the Borough of Tower Hamlets, each of which involves intelligent young girls, highly motivated academically, each of whom has, to some and greatly varying degrees, been either radicalised or exposed to extreme ideology. … In each of these cases … young women … have been captured, seduced, by a belief that travelling to Syria to become what is known as ‘Jihadi brides’ is somehow romantic and honourable both to them and their families. There is no doubt, to my mind, that young women have been specifically targeted, in addition to young men of course, but for different purposes. The reality is that the future for such girls as we know, holds only exploitation, degradation and 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. …”
“92. ... In our view, putting the matter at its very lowest, there is an arguable case of failing to take reasonable preventative measures directed against the police, the school and the local authority. The case against the Home Office is less clear-cut; the case against the Security Services appears thin. None of that matters for the purposes of Ms Begum’s trafficking argument, as will be more fully examined below. 93. There is a limit as to what may be said in OPEN about what happened to Ms Begum in Syria. 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.”
“102. On19th February 2019 there was an interview with a BBC journalist which was transmitted that day. Ms Begum was asked about the Manchester Arena attack and she described it as “kind of retaliation” for the women and children being killed in Syria and Iraq. Her comment was that this was “fair justification”
“Even though I was only 15 years old … I could make my own decisions back then. I do have the mentality to make my own decisions and I did leave on my own knowing that it was a risk.” 103. The Commission understands the force of the argument that those who have been groomed, radicalised and trafficked do not necessarily understand and/or process all of what has happened to them. However, that argument cannot be elevated to a universal or absolute principle. On one interpretation of this interview, Ms Begum was being disarmingly frank and was also showing self-awareness.” “Even though I was only 15 years old … I could make my own decisions back then. I do have the mentality to make my own decisions and I did leave on my own knowing that it was a risk.”
“4. We accept that individuals who have been radicalised as minors and travelled to Syria or Iraq, or who, whilst a minor, have been taken to Syria or Iraq by their family, are first and foremost victims. It is possible that some of these individuals may be self-motivated but that may be difficult to establish and so our presumption is that in most if not all cases, the individual will have been manipulated or radicalised at some stage – either at home in the UK, or during their time in Iraq/Syria. Our general view is that it is reasonable to consider that, as a minor, such an individual would be more at risk of radicalisation, and less able to resist such manipulation, than an adult. For this reason we consider that individuals who have been radicalised as minors should be considered as vulnerable victims. 19. Where a minor has now reached the age of majority but there is a national security case against them to justify deprivation and that is based on their actions as a minor, we will recommend deprivation … Whilst such individuals may once again be considered as a victim, perhaps having been radicalised or compelled to travel to Syria/Iraq as a minor, this does not alter the assessment that will have been carried out as the threat they now pose to the UK. In preparing advice in such cases, we would continue to explore carefully any information to suggest an individual who had not travelled to theatre as a minor of their own volition and had not been involved in further activity of concern, is now as an adult seeking to distance themselves or escape from an ISIL/AQ group. As with other cases, where such information exists, it will be included in the advice put before you, as this could provide a basis for holding back from deprivation action.”
“If you run away to join ISIS, like Shamima Begum, I will use all my powers to stop you coming back”
“36. We assess that multiple factors are likely to have contributed to BEGUM’s decision to travel but, as outlined above we assess that BEGUM’s activities prior to and during her travel to Syria demonstrated determination and commitment to aligning with ISIL. As set out above, we assess that BEGUM was aware of the atrocities committed by ISIL and their ideology prior to travel and her decision to align with ISIL and was therefore indicative of her extremist mindset. 37. Considering all the information that is now available, we have not altered our assessment that BEGUM posed a risk to UK national security at the time she was deprived of her British nationality. We maintain our assessment that BEGUM travelled to Syria and aligned with ISIL.”
“227. Ms Begum must also show that the exercise of the section 40 power amounts to a breach of her rights underArticle 4 of the ECHR . Anything less than that will not suffice on this appeal under section 2B. A credible suspicion that she was trafficked does not, in and of itself, amount to a violation of Article 4. Consideration must now be given to the investigative duty and then the protective duty.”
“228. … Even if, for the purposes of argument, it may be accepted that an effective investigation requires her to be here, because she cannot be properly assessed in Syria, a violation of Article 4 would occur only if the Secretary of State were under an obligation to repatriate her for that purpose.”
“238 ... the State may have failed in its duties to Ms Begum before she travelled to Syria, but she is now well beyond the scope of its protection. An investigation into whether there was a material failure meets the same arguments that have just been addressed in the context of the investigative duty. Ms Begum needs to persuade us, not merely that there is a credible suspicion that the protective duty has been breached, but also that this violation is directly and necessarily relevant to the exercise of the section 40 power, to the extent that it would, perforce, be an unlawful exercise of that power to exercise it pending any investigation. Although in a general and unspecific sense we recognise the force of the point that by depriving Ms Begum of her citizenship she is not being “protected”, that is not the issue. There must be a direct connection between the exercise of the power and the violation of the right, and what happened in 2015, even if a past injustice falls to be remedied, or at least recognised, does not provide that connection.”
“257. …[T]he proposition that the Secretary of State must view Ms Begum’s case through the lens of trafficking cannot be supported. This is not a mandatory relevant consideration, and there is an inherent question-begging in the contention that it is. On Ms Knights’ argument, the primary focus would not be national security but the fact that Ms Begum was groomed by others for the purposes of sexual exploitation. [SIAC] cannot accept that the Secretary of State should be compelled to view her case in these terms. Further, the trafficking analysis removes from consideration all questions of fact and degree. We have already made the point that the legal policy underlying Article 4 is not nuanced. Children cannot consent to sexual exploitation and the inquiry ends there. However, for the purposes of the broader considerations relevant to the proper exercise of the power under section 40, there is force in Sir James’ submission that issues of personal responsibility and agency are not black and white. Despite her age, Ms Begum could “consent” to travelling to Syria for the purpose of aligning with ISIL: that is a key consideration relevant to national security and the lawful exercise of the section 40 power. We know from the case of B that children such as Ms Begum were radicalised to greatly varying degrees. It cannot be presumed in her favour that her radicalisation was at the more serious end of the scale.”
“259. … [SIAC] is unable to accept Ms Knights’ argument that trafficking is relevant to the exercise of the section 40 power. 260. ... it is for the Secretary of State to decide what is in the public interest, and how much weight to give to certain factors, subject always to [SIAC] intervening on ordinary administrative law principles. This Secretary of State, speaking through Sir James, maintains that national security is a weighty factor and that it would take a very strong countervailing case to outweigh it. Reasonable people will profoundly disagree with the Secretary of State, but that raises wider societal and political questions which it is not the role of [SIAC] to address. This is because questions of weight and balance are pre-eminently for the decision-maker and not for [SIAC], subject always to Wednesbury review. It is well established that a decision-maker may decide to give a material factor no weight: see Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment[1995] 1 WLR 759 , at 780.”
“280. One of the key planks of the national security assessment is that Ms Begum travelled voluntarily to Syria, demonstrated determination and commitment in doing so, and remained in ISIL-controlled territory for four years. … 285. … It is clear from all the documentation available in OPEN that the assessment that Ms Begum travelled voluntarily is in the nature of a national security assessment. It may well be the case that experts and those with experience of these matters are well-placed to form their own judgments as to whether a 15 year old girl who may have been radicalised and was not “self-motivated” acted “voluntarily”
“303. [SIAC] has thought carefully about this but cannot accept this argument. It will assume for present purposes that the relevant question must be addressed as at19th February 2019 , taking into account subsequent evidence to the extent that it bears on that question, and not as at today’s date – when there is absolutely no prospect of Ms Begum being admitted to Bangladesh since she is now over 21 and is not a citizen of that country. The Secretary of State was told in terms that there was no real prospect that Ms Begum would go, or be compelled to go, to Bangladesh and he also knew that she could not go there for her own safety. He was therefore aware of the devastating impact that [SIAC] has identified, and it must be inferred that he considered this. Mr Squires did not contend in the alternative that the Secretary of State’s decision was perverse.”
“35. The duty of fairness governing the exercise of a statutory power is a limitation on the discretion of the decision-maker which is implied into the statute. But the fact that the statute makes some provision for the procedure to be followed before or after the exercise of a statutory power does not of itself impliedly exclude either the duty of fairness in general or the duty of prior consultation in particular. … Like Lord Bingham in R (West) v Parole Board[2005] 1WLR 350 , para 29, I find it hard to envisage cases in which the maximum expressio unius exclusio alterius could suffice to exclude so basic a right as that of fairness.”
“179. … before a statutory power is exercised, any person who foreseeably would be significantly affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity.”
“337. On balance, and not without some hesitation, we have concluded that, in the absence of a full merits appeal, it cannot be said that common law fairness has been impliedly excluded.”
“346. … prior notification would have given her the opportunity to set out in summary form some of the compassionate circumstances which should go into the balance. It would not have been incumbent on the Secretary of State to wait the many months it would have taken to assemble the powerful evidential case contained in the voluminous bundles placed before the Commission in this appeal. The Secretary of State is entitled to proceed relatively speedily in the public interest, and a brief window of opportunity is all that would and should have been afforded. The national security context is relevant here. 347. In this brief hypothetical timeframe, and whatever the position regarding Ms Begum’s legal representation as at19th February 2019 , it would not have been possible for valuable instructions to have been obtained from Ms Begum herself, given the circumstances in which she was living. We cannot ignore the practical reality that these instructions still have not been obtained. The most that would and could have happened, assuming everything in Ms Begum’s favour, is that Ms Gareth Peirce or someone else would have put together, no doubt expressed in powerful and eloquent terms, a number of obvious reasons why this draconian and radical step should not be taken. … 349. Overall, the Commission does not consider that representations of the nature we are predicating would have made any practical difference in the particular circumstances of Ms Begum’s case, even in the context of a decision-making process that was at its formative stage. The Secretary of State was of course aware that Ms Begum was a child at the time of her departure and might have been the victim of radicalisation and so forth, and he would clearly understand that this was not a decision to be taken lightly. He was also aware, as we have found, that Ms Begum – assuming that she could ever surmount a number of obvious practical difficulties - could not travel to Bangladesh without putting herself at personal risk. Whatever the force of the pre-decision advocacy put forward on Ms Begum’s behalf, we are confident to the requisite standard that the outcome would have been the same. 350. It is not sufficient for Ms Begum’s purposes to demonstrate a technical breach of the rules of natural justice. … Strictly speaking, the position must be examined as at today’s date, taking into account all the material now available, rather than as at19th February 2019 or shortly thereafter. Either way, it makes no difference. The Commission is entirely satisfied that the outcome would have been the same four years ago and that it would be and is the same now. 351. Sir James did not advance any oral submissions directed to … the well-known decision of the Court of Appeal in Simplex GE (Holdings) v Secretary of State for the Environment … However, Sir James did not abandon his skeleton argument, and could not have predicted on which issue or issues his submissions might not prevail.”
“160. … It follows 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. …”
“1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour.”
“(a) ‘Trafficking in human beings’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability or of the giving or receiving of payment or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. … (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in human beings’ even if this does not involve any of the means set forth in subparagraph (a) of this article. (d) Child shall mean any person under 18 years of age.”
“Each party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”
“287. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Osman, cited above, § 116) … 288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. … For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73). 289. Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. Although the Palermo Protocol is silent on the question of jurisdiction, the Anti-Trafficking Convention explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory…”
“308. … The recruitment having occurred on Russian territory, the Russian authorities were best-placed to conduct an effective investigation into Ms Rantseva’s recruitment.”
“159. Nevertheless, the Court considers that the prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked. In the Court’s view, the duty to take operational measures underart.4 of the Convention has two principal aims: to protect the victim of trafficking from further harm; and to facilitate his or her recovery. It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future. Not only would they have to go through the ordeal of a criminal prosecution, but a criminal conviction could create an obstacle to their subsequent integration into society. In addition, incarceration may impede their access to the support and services that were envisaged by the Anti-Trafficking Convention.”
“It is also arguable, in the Commission’s judgment, that there were State failures, and possible violations of the corollary protective duty, between December 2014 and February 2015. There is force in the submission that these could be investigated.”
“(1) The Party of which a victim is a national or in which that person had the right of permanent residence at the time of entry into the territory of the receiving party shall, with due regard for his or her rights, safety and dignity, facilitate and accept, his or her return without undue or unreasonable delay.”
“That is to erroneously conflate an assessment of why a victim of trafficking may have done or said what they did, with the assessment of national security risk that flows from that. Why an individual travelled to Syria or remained in ISIL-controlled territory and whether such conduct should be regarded as “voluntary” is clearly relevant to their national security risk. It is, however, a logically prior question, and from the OPEN evidence there was no suggestion that in relation to a victim of trafficking, it was a matter on which the security services had expertise.”
“The general rule in national security cases is that there is no duty to seek representations before making the deprivation order. 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.”
“171. The procedure for deprivation is inherently unfair, on two accounts: the appellant has no input into the decision and the decision is based in part on material which she never sees… Those factors suggest that the appeal which Parliament has given an appellant is a forum in which such decision should be examined as meticulously as possible… SIAC has an important role in scrutinising all that evidence independently, with the invaluable help of the Special Advocates, who press for as much disclosure to the appellant as possible, and who rigorously test the CLOSED evidence. In the course of a hearing, SIAC sees more intelligence materials by the Secretary of State will have done: she will normally only see a ministerial submission perhaps with some annexes… SIAC’s reference in this case to its ‘powerful microscope’… was apposite. Moreover, SIAC will also have a potentially wide range of evidence from the appellant (as in this case), which will not have been seen by the Secretary of State, either. The appeal may well be the appellant’s first and only opportunity to influence a decision-maker. SIAC is entitled to expect that by the time of the appeal it will have been given an updated national security statement which takes on board the evidence which the appellant has served for the purposes the appeal. It is also entitled to expect that the Secretary of State will make available a national security witness who is immersed in the detail of the case, and who is ready to be cross-examined by the OPEN representatives and by the Special Advocates.”
“33. Another consequence of SIAC’s specialised constitution and unique procedure is that there may be cases where a flaw that appears at first sight to be material can be shown not to be. A judge in judicial review proceedings who identifies a potentially significant flaw may find it difficult, given the more limited evidential materials available, to conclude that relief can be refused because the flaw is immaterial or the outcome would inevitably have been the same: see Simplex ... SIAC’s more powerful microscope may enable it to see more clearly not only the potentially significant flaws but also their evidential content. This means that it may be better placed than would a judge in judicial review proceedings to conclude, once a flaw has been identified, that it is not material or that the outcome would inevitably have been the same in any event. As before, however, the same high test (whether the outcome would inevitably have been the same) applies.”
“… where one of the reasons given for a decision is bad, it can still stand if the court is satisfied that the decision-making authority would have reached the same conclusion without regard to that reason.”
“A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; … (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
“A person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose.”
“OSCT’s current assessment was that “public sentiment is overwhelmingly negative towards BEGUM, with the general feeling being that she made her decision and now must live with it”… There appears to be little differentiation between the views of British Muslims and the wider British public on the issue at this time. A decision to deprive BEGUM of her citizenship (should it become public knowledge), however, would likely be considered controversial. [It was considered] that this would particularly be so among British Muslims and Bangladeshi communities, who are likely to view this as a comment on their own nationality status. This also comes in the context of Windrush and Brexit…”