Shamima Begum case shows how little power courts have to check government national security decisions

by Professor Devyani Prabhat, University of Bristol Law School

The Special Immigration Appeals Commission (SIAC), a court that specialises in national security cases, has upheld the home secretary’s decision to cancel Shamima Begum’s citizenship. The 23-year-old was deprived of her citizenship in 2019, four years after leaving the UK aged 15 to join Islamic State in Syria. The court found “credible suspicion” that Begum had been trafficked for the purpose of sexual exploitation, as her lawyers had argued. It also found that there were “arguable breaches of duty” by state authorities in having allowed her to make the journey to Syria.

In its decision, the SIAC states that the case is “about fundamental principles, rights and obligations”. It also says that “the rule of law is non-negotiable”. But ultimately, national security seems to take precedence over any of these considerations. And the court appears to have very little power to scrutinise the home secretary’s assessment of the security situation.

It is possible that there is overwhelming evidence finding Begum a national security threat that has not been made available to the general public – the SIAC is highly reliant on secret evidence, and has closed judgments (in addition to open ones). But there is a bigger question here about whether specialist national security courts like the SIAC are able to give full and proper consideration to human rights issues. Begum’s case has divided the British public between those who consider her a terrorist and national security risk and those who see her as a trafficking victim whose rights were violated. Her case will have implications for other minors who are trafficked out of the country. This decision shows that as long as the Home Office says there is a national security threat, that may now trump any questions of human rights of children.

A controversial court

The SIAC was initially set up in 1997 mainly as a forum where foreigners could appeal against deportation orders. Later, it took over other national security cases, such as detention of those who could not be deported and cancellation of citizenship. In its early years, the legal community criticised the SIAC’s use of secret evidence and proceedings which were closed to the public. Many lawyers who served as special advocates at the SIAC resigned in protest because they were unhappy with how it operated. Since then, its procedures have been fine tuned (for example, those who appeal to it have to be given the gist of the evidence against them). Its remit has also expanded to include more immigration and nationality issues.

It is not unusual for the SIAC to disagree with the home secretary on human rights issues. For instance, in a 2010 case, the court decided that the UK could not deport a number of suspected terrorists to Pakistan, as they faced a real threat of torture there. This was despite the UK receiving diplomatic assurances from Pakistan that they would not be subjected to torture. However, in recent years it appears that the tide has turned on human rights issues. Higher courts have been steering the SIAC away from reconsidering the secretary of state’s assessment of the country’s national security needs using its own lens. One example is a 2021 case where a person was deprived of their citizenship and then denied entry to the UK by the home secretary. The SIAC overturned the home secretary’s decision, so the home secretary appealed. The court of appeal sided with the home secretary, ruling that the specialist court could not substitute its own evaluation of the interests of national security.

This is remarkably close to the supreme court’s view in 2022 as well in an earlier round of Begum’s case. Here too the supreme court said that on a deprivation appeal, the SIAC is not entitled to re-evaluate the home secretary’s discretion using its own standards of review. It appears that the SIAC’s power to scrutinise what the home secretary has considered when cancelling a person’s citizenship is very limited. In the absence of proper judicial oversight, it is nearly impossible to correct for (or even know of) any mistake or misuse in a minister’s exercise of power.

Given this background, it is unsurprising that this court is unable to grapple with the complicated issues of trafficking, even while accepting that someone like Begum was likely trafficked. Where can questions of trafficking and sexual exploitation of minors similar to Begum’s case be heard if not in the SIAC? This latest ruling suggests that whenever national security is involved, important human rights questions will remain unanswered, if they are considered at all.The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article, published  February 28, 2023.

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