Did Shamima Begum Receive Her Due Process under International Law?

[Andrea Marilyn Pragashini Immanuel is an Assistant Professor of Legal Practice and a Research Fellow at the Centre for Public Interest Law, Jindal Global Law School, O.P. Jindal Global University, India.]

Acknowledgment: I am grateful to Aashish Yadav, Lecturer, Jindal Global Law School for his valuable comments on a draft of this article.

Photo Credit: Nate Kitch, The Guardian

On 26 February 2021, in R (on the application of Begum) v Special Immigration Appeals Commission, the UK Supreme Court confirmed that the Secretary of State could exercise his discretion to deprive the citizenship of Shamima Begum, a UK born citizen, based on national security considerations. The Court also recognized that, based on national security considerations, the Secretary of State can disallow Begum from entering the country to challenge the deprivation decision. This article examines how the decisions of the Court and the Secretary of State failed to consider the due process and fair trial standards that Begum is entitled to, under international law, particularly international human rights law and relating to the right to nationality.

Begum was born in the UK to Bangladeshi parents and travelled to Syria when she was 15, to join the ISIL. She married a Dutch ISIL fighter and had three children, all of whom died. She now remains in Camp al-Roj in northern Syria run by the Syrian Democratic Forces. In 2019, when the then Secretary of State received information that Begum is a threat to national security, he passed an order depriving her of her British citizenship under section 40(2) of the British Nationality Act, 1981. He also refused her entry into the country to challenge the deprivation order, on national security grounds. Begum challenged these decisions which eventually reached the Supreme Court. The Supreme Court stated, amongst other things, that ‘if a vital public interest – in this case, the safety of the public – makes it impossible for a case to be fairly heard, then courts cannot ordinarily hear it.’ To be fair, before the Court made this statement, it extensively considered the state’s obligations to respect due process norms under domestic law and under the European Convention on Human Rights. However, the Court failed to appreciate Begum’s due process rights and the consequent duties on UK under international law.

What Was the Process that Was Due to Begum under International Human Rights Law?

Charles T. Kotuby Jr. and Luke A. Sobota in their book, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes trace the origin and development of due process principles in international law. These due process principles are procedural norms in international law that are applicable to state action and limit governmental powers. The right of equal access to courts, the right to equal treatment of litigants, the right to an effective remedy and the right to a fair hearing are such due process norms recognized under international law.

These find expression in human rights instruments such as the International Convention of Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). UK is a party to the ICCPR. Article 2 of the ICCPR recognizes the right to an effective remedy. Article 14 guarantees equality of litigants before courts and tribunals and the right to a fair and public hearing. According to the Human Rights Committee, this includes the right to access and claim justice before courts and tribunals. This right is available to persons irrespective of nationality. The Committee emphasizes that where an ‘individual’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14’. Article 26 of the ICCPR guarantees equal protection of the law. Under the UDHR, Article 7 ensures such equal protection while Article 8 provides the right of everyone to an effective remedy. Article 10 guarantees the right to a fair and public hearing.

This means that under international law, particularly the ICCPR, UK should guarantee to Begum, equal protection of the law, the right to access the effective remedy and provide her with a fair and public hearing in relation to the decision to deprive her of her citizenship. The Secretary’s decision disallowing her from entering the country and the Supreme Court’s affirmation of this decision interferes with these rights and systematically frustrates Article 14. Without entering the country, she cannot effectively exercise her right to access justice and claim the protection of the law.

In its judgment against Begum, the UK Supreme Court noted that the Secretary of State can exercise discretion in assessing whether a person’s citizenship is to be revoked and decide to disallow her entry into the country on national security grounds. The Court said that in exercise of the power of judicial review over such decisions, courts cannot act as the Secretary but have to consider if the Secretary has made a reasonable assessment. The Court clarified that courts should review whether the Secretary has disregarded something which should have been considered and if he has erred on a point of law. In this sense, the Secretary should have considered Begum’s fair trial rights and her right to access justice. The Supreme Court when reviewing the decision of the Secretary should have given due weightage to these rights of Begum as these rights are obligations of the UK under international law.

In fact, the Supreme Court agrees that Begum’s fair trial rights are affected on account of the decision of the Secretary to disallow her entry into the country. Then, do national security concerns justify the order passed by the Secretary? While certain substantive rights in the ICCPR are accompanied by national security exceptions, this is not the case in relation to the right to an effective remedy or the equal protection of the law. So, it is difficult to agree with the Supreme Court’s affirmation of the Secretary’s order.

On the other hand, what Begum faces is a deprivation of rights at two levels. At the level of substantive rights, her right to nationality under Article 15 of the UDHR is violated. At the level of procedural rights, her right to access effective remedy and to access equal protection of the law against a citizenship deprivation decision is violated by the order to disallow her entry into the UK. Whether her right to access an effective remedy can be restricted on the ground of national security can be better understood by examining the right to nationality which is affected in this case.

What Was the Process that Was Due to Begum Vis-à-vis Her Right to Nationality?

Under Article 15(1) of the UDHR, Begum is entitled to the right to nationality. Under Article 15(2), she should not be arbitrarily deprived of this right. To be non-arbitrary, deprivations of nationality must serve a ‘legitimate purpose, being the least intrusive instrument to achieve the desired result and being proportional to the interest to be protected.’ These are some of the due process guarantees accompanying the right to nationality. Even if it were to be accepted that Begum was deprived of her citizenship for the legitimate purpose of ensuring national security, the question remains if the Secretary of State considered whether citizenship deprivation was the ‘least intrusive instrument’ to ensure national security. In fact, the Supreme Court did not test the decision of the Secretary against this procedural guarantee arising from Article 15(2) of the UDHR or consider if the deprivation decision was proportional to the object sought, i.e., national security.

Article 8(3)(a)(ii) of the 1961 Convention on the Reduction of Statelessness (to which the UK. is a state party) recognizes that states can deprive persons of nationality when they have acted in a manner ‘seriously prejudicial to the vital interests of the state’. United Nations High Commissioner for Refugees (UNHCR) recognizes that ‘terrorist acts’ constitute conduct falling within the scope of this phrase.  However, such conduct ‘cannot consist of acts potentially occurring in the future’. The question remains if Begum has already engaged in terrorist acts that seriously prejudices the national security of Britain. UNHCR considers that mere membership in a terrorist group may not constitute a ‘terrorist act’ and so it is difficult to justify the Secretary’s decision of deprivation under Article 8 of the Convention. In any case, these considerations under Article 8 should have been taken into account by the Secretary of State and subsequently by the Supreme Court in judicial review. In light of the due process requirements to be followed before a deprivation decision is made, refusing Begum entry into the country to contest the decision, leaves her in a third country, in an uncertain situation, for a prolonged period, without giving her access to justice.

The protection of the ‘vital interests of the state’ through citizenship deprivation under Article 8 of the 1961 Convention should be used only when such protection cannot be achieved through other means. The Secretary of State and the courts should consider if national security can be ensured through any other means before depriving Begum of her citizenship and before disallowing her entry into the country to challenge the decision. The Court of Appeal took this position and considered if measures under the Terrorism Prevention and Investigation Measures (TPIM) Act, 2011 could be taken to protect national security instead of deprivation of citizenship. In response to this, the Supreme Court noted that it was beyond the power of the Secretary of State to consider other measures apart from citizenship deprivation. The Court stated that ‘there was no evidence, nor any submissions, before the Court of Appeal as to whether or not a TPIM could or would be imposed on Ms Begum, or as to the effectiveness of any such measure in addressing the risk which she might pose, having regard, for example, to the resources available to monitor compliance with TPIMs and the demands on those resources.’ However, this is a consideration under Article 8 of the 1961 Convention and should have been considered by the Supreme Court, to comply with the UK’s obligations under the Convention.

In addition, the UK should consider the implications of depriving Begum of her citizenship on national security reasons and leaving her in another state. UNHCR considers that, in applying Article 8(3)(a)(ii) of the 1961 Convention, states should take into account how their decisions of citizenship deprivations impact other states and international peace and security. UNHCR considers that in absentia deprivations of nationality increases impunity and poses security risks to other states. By depriving Begum of her citizenship and refusing her entry into the UK while admitting that she is a security threat, the UK has made peace with the fact that she remains a possible security threat within Syria. As UNHCR notes, such decisions defeat the principles of cooperation vital to counter-terrorism activities. It also encourages impunity for persons involved in terrorist activities. The Supreme Court when reviewing the decision of the Secretary should have considered these implications before endorsing the exercise of discretion of the Secretary in the deprivation decision and the subsequent order refusing entry to Begum into the UK.

Significantly, Article 8(4) of the 1961 Convention emphasizes the right to a fair hearing by an independent body of a person deprived of their nationality on the ground of the commission of conduct ‘seriously prejudicial to the vital interests of the state’. Such fair hearing is available despite engagement in conduct which are against the vital interests of the state and before the deprivation decision is made. It is this right to fair hearing and access to justice that Begum has been denied by the Secretary’s order and its subsequent approval by the Supreme Court. These rights have also been elucidated in the Secretary-General’s Report to the Human Rights Council while explaining how arbitrary deprivation of nationality is to be avoided. The Report mandates states to provide persons with the opportunity for meaningful review of deprivation decisions. The Secretary’s order and the subsequent judgment of the UK Supreme Court do not consider these due process rights that Begum is entitled to under international law. On the other hand, the Court was content with remarking that Begum can continue with appeal when she can effectively do so. This proposition cannot be accepted because inordinate delay can defeat the very remedy that Begum is seeking for. In the interregnum period, Begum continues to exist without citizenship in foreign territory.

Conclusion

In light of the above, was Shamima Begum given her due process when she was deprived of her nationality and not allowed to enter the country to contest the decision? Given the due process considerations under international law that are applicable to the UK, this has to be answered in the negative. The implication of the UK Supreme Court’s judgment means that states can refuse persons entry into their country on national security grounds and leave them without a proper status at the hands of a third country. This increases impunity for terrorist acts, poses a risk of statelessness whereby the person may be left without any other nationality and violates the due process rights under international human rights law that persons like Shamima Begum are entitled to.