Shamima Begum & the court of public opinion

Shamima Begum travelled to Isis-controlled Syria on 17 February 2015, we now learn, facilitated by Mohammed Rasheed who was providing information to Canadian intelligence while smuggling people to IS.* She was 15 years old. Sir James Eadie KC for the Home Office, at a Special Immigration Appeal Committee (SIAC) hearing on 21-25 November 2022 against the Secretary of State for the Home Department’s (Sshd) citizenship deprivation (dated 12 February 2019), said she went to Syria with her ‘eyes wide open’.

It is implausible that Begum or her two school friends, Amira Abase, 15, and Kadiza Sultana, 16 years of age, could have imagined the reality that awaited them. CCTV showed Begum and her two friends passing through border control at Gatwick Airport and later in Istanbul bus station in Turkey. These images became the tropes, not of vulnerable, coerced and trafficked schoolgirls groomed for terrorism in cyberspace (as Samantha Knights KC and Dan Squires KC argue they undoubtedly were) but the motif of female Muslim terrorists or terrorist sympathisers who put at risk our national security.

Begum was a minor under UK law, who public authorities, including her school, the police, and border control, had a duty to safeguard (Children Act 1989 s 17). Initially Begum was regarded with some sympathy. On 10 March 2015, the Chair of the Home Affairs Committee on Counter-terrorism when opening the hearing into their disappearance said to the families of the missing schoolgirls who were present: ‘We cannot imagine the anguish and distress that you must have felt on the day they went and must also feel today… It is every parent’s nightmare.’

Any gestures of sympathy soon evaporated, as the media circus gathered speed and reviled and damned the schoolgirls who from then on were tried and convicted in the court of public opinion. That court has had a centrifugal role in shaping Executive decision-making.

What do we know about Begum, now 23 years of age living (stateless) in al Roj camp in the al-Hasakah Governorate in north-eastern Syria, described by the UN as ‘subhuman’? Begum watched her three children die in infancy of disease related illnesses due to the harsh conditions of al Hawl and al Roj refugee camps. She married an Isis fighter Yago Riedijk, 27, a Dutch national. We have no evidence that she was involved in any acts of violence or terrorism. She has repeatedly said that she regrets joining Isis, and that her only role was ‘to make babies’. In 2019, the Sshd reported that of the 900 people who were a concern to national security and travelled to Syria and Iraq to join terrorist organisations about 20% have been killed, 40% remain in the region and 40% have returned to the UK. So, what is it about this woman that denies her citizenship and right to return?

In 2019 after the fall of Isis, Andrew Loyd of The Times interviewed Begum only a matter of days away from giving birth to her third child. Under extreme duress, unable to speak freely or safely, what she was reported by Loyd to have said sealed her fate. We are not to know the parameters of the interview or what question preceded her response that has come to define her: ‘When I saw my first severed head it didn’t faze me at all’ (The Times 14 February 2019). We do know that her only purpose in speaking to Loyd was to assist her return to the UK for the sake of her child. This plea appeared as the standfirst and Times front page: ‘Bring me home.’ The severed head utterance was incongruous with her purpose to gain the sympathy of politicians and the public to effect a homecoming. As media outlets were reporting on chilling hostage taking and executions, part of Isis propaganda to instil fear and terror, the strapline carried immeasurable scoop newsworthiness.

On 12 February 2019, the Counter-Terrorism Border and Security Act became law. The ‘severed head’ strapline served admirably in turning up the moral panic and fear and canvassing support for further legislation. Pleas for Begum’s repatriation were rejected by the moral consensus and thereon the fateful remark became the signature by which she was known. The media circus was in full swing. Ann Widdicombe, Brexit Party MEP at the time said: ‘Britain should not raise a finger to help her’ (Daily Mail, 20 February) and to date it has not done so. On 19 February, the Sshd wrote to Begum notifying her of an order made under the British Nationality Act 1981 s 40 (5) removing her British citizenship for the public good (s 40 (2) (inserted by the Immigration Act 2014)) holding that she was a dual British/Bangladeshi national and would not be rendered stateless. (Bangladesh has said that Begum’s Bangladeshi citizenship by heritage does not apply when a person reaches the age of 21 years and if she returned would hang her.)

Shortly after the death of her third child and having fled to the al-Roj camp, Loyd visited Begum and the by-line changes. ‘I was brainwashed I knew nothing’ (The Times, 2 April 2019) is the gist and Begum is reported as saying that she regretted joining Isis, and at the al-Hawl camp could not speak out against Isis for fear of assault or being beaten to death: ‘I was afraid of my life and my child’s life… women being put in prison, husbands being executed.’

Begum’s legal team at the November 2022 hearing narrates a miserable story detailing the failures of the police, the school and others to safeguard her from sexual and terrorist grooming and trafficking. The Home Office responded slightingly, that even if true it was irrelevant to the question of her risk to national security. The police failures were several and serious, slow to effective action when the families on 17 February reported their children as missing. At the Home Affairs Committee hearing AC Mark Rowley explained: ‘… on the Wednesday [18 February] we were looking to kick off inquiries in Turkey. … we had an officer on the ground the day after that [19 February]’'.

At this same time the Serious Crime Act 2015 passed on 3 March 2015 introduced s 67 (inserting 15A into the Sexual Offences Act 2003) making it an offence to communicate intentionally, meet or arrange to meet with a person under 16 for the purpose of sexual gratification. Begum at 15 was married 10 days after she arrived in Syria. The Modern Slavery Act 2015 passed on 26 March 2015, s 2 (1) recognises the offences of trafficking, exploitation and slavery making it an offence to be involved in trafficking or exploitation of persons as facilitator, harbourer or receiver and introduced a defence for those who were trafficked and forced under ‘compulsion’ to commit a criminal offence. However, grooming online, facilitating, recruiting, transporting and transferring schoolgirls for the purpose of joining Isis did not fall within the contemplation of Parliament nor those interpreting the provisions when in force. Such a reading would not serve the order of things. Academic literature has recognised that young women and men are being trafficked to join IS and within IS. Abdel Bari Atwan explains from his research: ‘Islamic States recruitment machine is largely online… in the West, most said they had either direct messaged someone via Twitter or Facebook, or had been contacted by a friend, relative or acquaintance already inside Islamic State, to initiate their own “migration”’ (2015:12).

The Family Courts have approached potential ‘radicalisation’ through protection not punishment. In March 2015 in London Borough of Tower Hamlets v M and others [2015] EWHC 869 (Fam) Mr Justice Hayden used wardship to protect five minors at risk of leaving the country to travel to Isis countries, particularly Syria.

The November 2022 hearing is the latest in the tortuous labyrinth of appeals challenging citizenship deprivation and refusal of leave to enter (LTE). In May 2019 Begum applied for LTE which the Sshd refused because of her failure to follow procedure requiring fingerprints and a photograph and said the ECHR did not apply to her and refusal would not result in a breach of Convention rights. She then appealed to SIAC regarding the human rights claim and challenged the LTE via judicial review. The Chair of SIAC, Elisabeth Laing J., made an order directing that both claims should be linked in a rolled-up hearing to take place concurrently with the LTE appeal. SIAC handed down judgment on 7 February 2020 (Begum v Sshd (Appeal No SC/163/2019) [2020] HRLR 7) upholding the deprivation of citizenship which the court said did not make her stateless, although conceded the possibility that the trial would not be effective. A separate application, for review of LTE by judicial review, was dismissed (R (Begum) v Sshd [2020] EWHC 74 (Admin)). Begum appealed to the Court of Appeal against SIAC’s decision and also against the administrative court’s decision. The CA, on 16 July 2020 (Begum v SIAC and another (UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism and another intervening) [2020] EWCA Civ 918), allowed her appeal against SIAC’s decision in the LTE appeal and the dismissal of her application for judicial review, ordering the Sshd to grant Begum LTE. The Divisional Court allowed a judicial review of SIAC’s decision concerning the Sshd policy. The Sshd appealed the decision in relation to all of these matters (a leapfrog certificate was granted) to the Supreme Court which handed down judgment in February 2021 (R (on the application of Begum) v Special Immigration Appeals Commission; R (on the application of Begum) v Sshd; Begum v Sshd [2021] UKSC 7) allowing the Sshd appeals, dismissing Begum’s cross appeals [137] concluding: ‘if… the safety of the public – makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. The appropriate response… is for the appeal to be stayed’ [135] until this position changes. One practitioner’s opinion as regards this web is the result of an Executive confining the courts to examining narrow and technical points and less about the conclusions the Supreme Court reached (see article by Alison Harvey here).

As for the risk to national security the risk is rather to government credibility and popularity. For those who contend there is a risk then it can be managed by prosecution (Counter-Terrorism and Border Security Act 2019 s 4 (amending Terrorism Act 2000 s 58B 1(a)(b)) ‘entering or remaining in a designated area’ which carries a maximum sentence of 10 years. Begum would have a defence of involuntary involvement under amended s 58B 4(a), and/or TPIMs measures. Sir Bernard Hogan-Howe and Sir Mark Rowley said in 2019: ‘If they decided to come back we have no evidence that these girls are responsible for any terrorist offences. They have no reason to fear if nothing else comes to light, that we will treat them as terrorist’ (Times 14 February 2019). Begum would likely need a new identity and injunction contra mundum to protect against risk of invasion to her future privacy and family life.