15 Apr Like David Hicks, the Australian ‘Shamima Begum’ Should Issue a Writ for Habeas Corpus
[Felicity Gerry is an international QC and Professor of Legal Practice.]
[Sue Milne is a lecturer, PhD candidate and scholar of public law at the University of South Australia, Justice and Society.]
[Cate Read is a Trial Division Researcher, Supreme Court of Victoria.]
[Eamonn Kelly is a Barrister, Victorian Bar and ad hoc admission in England and Wales for the Shamima Begum Appeal.]
Photo Credit: Florence Harrison
Last month the UK Supreme Court handed the decision on the cross-appeals for Shamima Begum, against deprivation of her citizenship.
Ms Begum is an ISIL bride and dual British/Bangladeshi national currently interred in a Syrian refugee camp. Shamima failed in her appeals against the decisions of the UK Secretary of State for the Home Department, Sajid Javid, to unilaterally deprive her of her British citizenship and refuse her leave to enter the UK. The grounds of appeal concerned her absence from the UK prevented the mounting of a fair and effective appeal and that in making these decisions the Home Secretary was constrained by human rights considerations, including the risk of statelessness, of inhuman or degrading treatment or punishment, and the loss of liberty and security. Shamima’s fate is now uncertain. Reports on the deprivations suffered by the women and children in the Syrian refugee camps are harrowing. As widows and mothers who are also foreign nationals, the vulnerability of these women to further human rights abuses are compounded by uncertainties as to the nationality status of their children born in Syria. Also, of their own status when they are the recipient of citizenship deprivation as with Shamima who is considered entitled to Bangladeshi nationality.
Bangladesh is entirely foreign to Shamima who is London-born. Yet by the age of 20 she has lost her 3 children and her British nationality. She travelled to Syria in 2015 at the age of just 15, beguiled to be an ISIL bride. After the collapse of the ISIL State she was detained in the Al-Hawl camp in north-east Syria under the control of the Kurdish-led Syrian Democratic Front. Her two elder children had died sometime earlier and her third, a son born in the camp, lived only a short time before succumbing to pneumonia. Reports suggest that Shamima was then transferred to the Al Roj camp for her own safety (having been denounced by ‘hard core’ ISIL women also residing in Al Hawl) after she spoke with a Times journalist about wishing to return home to the UK.
Shamima’s presence in the camp subsequently came to the attention of the UK government and the stripping of citizenship was found to be in the public interest, following an MI5 assessment that Shamima’s travel to Syria and alignment to ISIL posed a threat to national security.
Australia has its own dual national ISIL brides who have travelled to Syria from Australia. Most recently Suhayra Aden, a dual Australian/New Zealand national came to public attention when Jacinda Ardern accused Australia of abdicating its responsibilities by stripping Suhayra of her Australia citizenship. This situation meant the Turkish authorities, who had detained her along with her 2 children after she crossed the Syrian border into Turkey, sought her deportation to New Zealand and not Australia. Although it now appears a political compromise might have been reached. Similarly, Zehra Duman was stripped of her Australian citizenship in October 2019 under the same automatic citizenship cessation laws (repealed late last year and replaced with a ministerial determination scheme). The Australian Government persistently refused to extend its protection to Zehra and allow her admission back into Australia while she resided in the Al-Hawl camp with (along with 67 other Australian women and children). A High Court challenge to the validity of the automatic stripping of her citizenship has been stood out following events arising from July 2020 when Zehra fled the camp and crossed the border into Turkey where she was arrested, and in September that year convicted by a Turkish court and sentenced to three years imprisonment for being a member of Islamic State.
Like Shamima, both Suhyarah and Zehra were stripped of their Australian citizenship under the operation of laws that extend extra-territorially. Their particular location outside Australia makes it difficult to effectively challenge the citizenship deprivation actions. But there are differences in the operation of the UK and Australian laws. Although Suhyarah and Zehra were stripped of their Australian citizenship on national security grounds, the stripping under the (now repealed) automatic citizenship cessation laws required no actual national security assessment. Similarly, although the women as dual nationals were protected by these laws from being rendered stateless, the often practical necessity of recourse to foreign nationality laws to arguably meet this requirement raises serious concerns. In the Begum matter on appeal from the Home Secretary’s decision to the Special Immigration Appeals Commission (‘SIAC’) the bulk of the judgment concerned the evaluation of the evidence of two conflicting experts on the nationality laws of Bangladesh. Australia, however, lacks a SIAC to oversee ministerial determinations on immigration and citizenship deprivation decisions made on national security or other public interest grounds. Appeals are only available to the Federal Court and High Court. Nor must the ministerial citizenship cessation determinations be compatible with human rights, although parliamentary reporting mechanisms provide some oversight of the operation of these laws. That said, there may be some room for hope through recent changes to Australia’s citizenship stripping laws which require that the Minister apply a public interest test when making a citizenship cessation determination, that includes consideration of the person’s connection to the other country of nationality. But the legality of executive decisions made on national security grounds in the absence of defendants still raises serious concerns.
The UK Supreme Court Decision and its Effect
The UK Supreme Court held that Ms Begum cannot presently return to the UK to pursue her appeal. It considered that the national security concerns raised by the Secretary of State outweighed her right to a fair and effective hearing. It further held that there was no evidence as to whether the national security concerns could be managed upon Ms Begum’s arrival in the UK. As such, ‘significant weight’ was afforded to the Secretary of State’s assessment of the national security concerns. Further, when an individual’s right to a fair hearing comes into conflict with the requirements of national security, their Lordships held that the right to a fair hearing will not necessarily prevail – it does not ‘trump’ all other considerations. The result is that Ms Begum’s appeal against the deprivation of her citizenship will be stayed until she can play an effective part in it, without the safety of the public being compromised. This was acknowledged by the President of the Supreme Court as “not a perfect solution”.
What does this mean for Australian citizens currently held in Syrian camps, particularly women and children? In the absence of a Bill of Rights or a Human Rights Act that could frame how policy decisions are made, it seems likely that any challenge under the relevant Australian legislation would follow a similar route. However, none of this means that Ms Begum nor her Australian counterparts do not have a right to return to their nation states. Their Lordships in the UK specifically gave ‘careful consideration’ to the constitutional issues raised by the intervention by JUSTICE which raised questions around the scope of the exercise of prerogative powers to protect nationals and the consequential remedies. These issues, which are constitutional in nature, we suggest, remain open for future cases.
In Australia, these issues were at least partly tested by David Hicks who was indeed repatriated from Guantanamo Bay. In Hicks v Ruddock the Federal Court refused an application by the Australian Government to summarily dismiss his habeas corpus suit. However, he was returned to Australia in 2007 before the matter could go to a full hearing. In the UK, these issues were last tested in the case of Lord Haw Haw, a Nazi propagandist who was returned to the Old Bailey to be tried for treason. The only issue in his case was whether he was a British national. It was held that he had sufficient “allegiance” to be tried because he had possession of an out-of-date passport, even though he was born and brought up elsewhere. It was a very thin basis for “belonging”, far less than some women and children currently held in Syrian camps. In Australia, the law in this area is far more developed, the most recent decision in Love v Commonwealth of Australia  HCA 3 provides some precedent for those who are assessed as “belonging” to exercise a right to return, not through policy arguments but pursuant to the ancient common law of allegiance. This, in our view, leaves open the potential for a different cause of action by excluded citizens, particularly trafficked women and girls.
A Potential Solution
We have long argued that, rather than running policy arguments, the remedy is in a writ for habeas corpus, particularly as the issue of detention is live where states can collect their subjects. Notably, the questions of Lord Reed, Lord Sale and Lord Hodge, in the Begum hearing focussed on the nature and scope of the Court’s jurisdiction on her appeal. Although they chose not to decide on constitutional grounds argued by the JUSTICE intervention, perhaps because those arguments were not run by the parties, nonetheless, these issues remain live in both Australia and the UK. If citizens ‘belong’ they have a right to return, even if they are to be prosecuted for foreign fighter offences. This could well “trump” the national security policy issues raised by the state in Begum.
What is really in issue is a prerogative power, namely the right of a national who retains allegiance to seek protection from their nation-state, not through procedural rights but by due process of law. It is the essence of the rule of law and the separation of powers that the courts will protect subjects from an excess of state power. A decision by the executive to refuse or frustrate the right of a subject to enter is, we suggest, amenable to judicial review, where “national security risks” would not be relevant considerations or matters affecting reasonableness or rationality. This is because the prerogative power preserves a constitutional right under the common law: the protection of the rule of law, to a subject that the state seeks to deprive of the right of subjecthood (and with that, the right of abode). Essentially, the court would not be giving ‘leave to enter’ but, rather, exercising a prerogative power to prevent the executive from refusing re-entry, in circumstances in which there was no judicial finding that allegiance had been reciprocally divested. The removal of statutory citizenship makes re-entry difficult but does not remove the common law right, for all subjects, of re-entry (if only to access the courts to challenge such refusal of entry).
In our view, a subject of Australia or the UK retains this constitutional right to re-entry. It makes sense because the UK Supreme Court ordered a stay rather than making a final decision. Had Ms Begum issued a writ, her subjecthood would need to be determined first as well as, like Hicks, the circumstances of her detention. She (and others in her position) would be entitled to the reciprocal rights and duties found in allegiance, including the protection of law. If subjecthood is lost or removed, this must be in a non-arbitrary way: namely, through a fair hearing. A central issue for a fact finder in such situation is, therefore, not an assessment of risk to national security but rather whether there has been a divestiture of allegiance, including by virtue of any ‘alignment’ with another state or entity. No such determination has been made in Ms Begum’s case. Such due process allows for the protection of all subjects, protects the nation from external threats, and identifies those persons for whom there is no duty. It also informs the decision on whether a removal of statutory citizenship was lawful. In addition, Australia, like the UK, has strong policy in the context of trafficked persons and exploited children. These are live issues for the women and children in Syrian camps. It is our view that there would be few, if any, circumstances in which a court would find that a divestiture of allegiance had occurred. Such a finding would require compelling probative evidence that, despite the involuntary nature of such person’s circumstances, they nonetheless may be found to have exercised the high level of agency required to establish a renunciation of allegiance. In practical terms, it is difficult to imagine a circumstance in which such argument could be made out. In the Begum case there was arguably a fundamental error in challenging national security at all. What should have occurred first was a hearing on whether Ms Begum retained allegiance. This is because although deprived of statutory citizenship she retained her common law rights. A refusal to allow any national (or person who belongs) to re-enter and seek the protection of the courts amounts to a frustration of constitutional rights to re-entry which should be considered before the removal of any statutory citizenship. We suggest the real remedy may well be through the prerogative through a writ of habeas corpus. This may be testing the outer limits of such a writ but as the Federal Court said in Hicks, there are no clear authorities that would justify summary judgment against such a writ. As long as that allegiance remains untested by the courts, the subject retains the right of access to the courts and repatriation requires “facilitation” by the executive.
The duty of protection owed by state to subject is fundamental to the nation-state. Deprivation of citizenship and, consequentially, refusal of leave to enter are not limited to consideration of the statutory powers of the state, on the one hand, and statutory rights of the citizen, on the other. Instead, such decisions about deprivation of the right of abode and entry are grounded in ancient common law principles that reciprocally bind subject and state and may only, under separation of powers principles, be severed by way of judicial, rather than executive or legislative, action. Whilst the UK Supreme Court in Begum did not determine the case on the basis of the ancient common law principles of allegiance between state and subject, raised in JUSTICE’s submissions, it also did not reject the existence of such principles. In light of the Supreme Court’s findings, we suggest, those submissions now provide a clear and potent further legal option for the many Australian and UK women and children who remain stranded in Syrian refugee camps.
Felicity Gerry QC and Eamonn Kelly have advised solicitors acting for Australian women and children in Syrian camps and were instructed by JUSTICE who intervened in the Shamima Begum appeals on the rule of law issues.