Can the Home Secretary prevent Shamina Begum returning to the UK?

The Home Secretary has said that he will prevent the return to the UK of Shamina Begum, the Isis bride from Bethnal Green:

My message is clear” he told The Times, “if you have supported terrorist organisations abroad I will not hesitate to prevent your return.”

Opinions differ on whether it would be right to allow her to return to Britain. Alan Henning, for example, whose brother John was murdered by ISIS, believes she should “absolutely not” be allowed back into the country. He speaks for many. Others take a more forgiving line, arguing that when she left she was only 15 years old; she has been groomed or brainwashed, and is perhaps not without hope of rehabilitation. Moreover, she now has a new-born baby. Whatever she may have done, her baby is innocent.

What, though, is the legal position? Can the Home Secretary “prevent her return”?

In normal times we could simply ask the Independent Reviewer of Terrorism Legislation Terror Watchdog – Lord Anderson QC or Max Hill QC were the most recent holders of that office – but the post is currently unfilled, so perhaps a note of confusion has crept into the press coverage. Though I am more lapdog than watchdog, the law is reasonably clear.

She is a British citizen. She does not, as far as we know, have dual citizenship with any other country. There are all sorts of complicated varieties of British citizens (Overseas Citizens, overseas territory citizens etc.) who have varying rights to live in Britain, but no-one has ever suggested that Ms Begum was anything other than a full British Citizen with the corresponding “right of abode” in Britain: see Immigration Act 1971 S.2 (1) (a). If she is a British citizen, so is her baby.

Can she be stripped of her British citizenship?

If it could be done, this would be the simplest way of preventing her return, but it cannot be done.

At first glance it seems that it might be possible.

S.40 (2) of the Nationality Act 1981 provides:

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.”

Given Ms Begum’s chillingly blasé attitude towards finding severed human heads in the dustbin, her support for a terrorist organisation that has been unparalleled in its brutality, and her apparent lack of any repentance it would be easy to conclude that whatever “the public good” means, depriving Ms Begum of her British citizenship would be conducive to it.

As often with the law, however, things are not that simple. S.40 (4) places an important restriction on the Home Secretary’s power to strip someone of their citizenship:

The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.”

If her British citizenship were removed, assuming she is not a dual citizen of another country, she will become stateless. S.40 (4) thus prevents Mr Javid depriving her of citizenship.

S.40 (4A) of the Act does in fact provide for naturalised citizens to be made stateless where they have conducted themselves “in a manner which is seriously prejudicial to the vital interests of the United Kingdom” but only where:

the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

Ms Begum was born a British citizen, and in any case there are – as far as we know – no grounds for believing that she could become the national “of a country or territory outside the United Kingdom.” Even if the Islamic State still existed as a de facto territory, its legal existence has never been recognised by the UK.

In fact, even if she could be stripped of her British citizenship, that would potentially create a new set of problems. Should she manage to reach Britain (and there is no reason to believe that other countries would particularly want to keep her), it would be difficult to refuse her entry, not least because it would be impossible to deport her anywhere else. We would not want her to remain living indefinitely at Heathrow Airport like Tom Hanks in The Terminal, and it is hardly realistic to say that she should be detained as an illegal entrant for the rest of her life.

So if she can’t be stripped of her citizenship, can she just come back to Britain?

As with many legal questions, the answer is “yes and no.”

At present she can come back, but the Home Secretary is not without legal powers to control her return, although not to prevent it altogether.

Well, tell us what he can do.

Mr Javid could issue a “temporary exclusion order” (“TEO”) under the Counter-Terrorism and Security Act 2015. A TEO is an order preventing a British citizen returning otherwise than in accordance with the conditions of a permit. It was Parliament’s answer to the conundrum of how to deal with British citizens who could not be stripped of their citizenship, but who could nevertheless be dangerous if simply allowed to return and disappear. Although described as a “temporary exclusion order,” and although limited in the first instance to a duration of two years, this period can be extended: so the orders are not necessarily as temporary as they sound. The effect would be that Ms Begum’s passport (should she possess one) would be invalidated. Her citizenship, however, would not be.

So if he issues one of these TEOs does that mean he can keep her out, at least for two years?

No, a TEO doesn’t necessarily prevent her returning to Britain. However, once a TEO is in force there are only two ways Ms Begum could legally do so.

The first is that she could be deported here. At present that seems rather unlikely, there being no functioning government in the part of Syria where she is living. On the other hand, were she (for example) to find herself in neighbouring Turkey or Iraq the authorities might choose to deport her to Britain, and we would then have to accept her.

The other, and more likely alternative, would be by Ms Begum herself applying for what is known as a “permit to return.” If Ms Begum were to ask for such a permit, the Act says that the Home Secretary must issue one.

Invalidating her passport is pointless then? All she has to do is ask for one of these “permits to return” and she can just come back to Bethnal Green?

No, not at all. Once she has applied for a permit, the Home Secretary has to issue one, but he can impose conditions. One of those could be that she presents herself for interrogation by the police before she even sets foot on British soil. If she doesn’t turn up to meet the police he can refuse to issue a permit, or cancel one if already issued.

He can also impose conditions on her subsequent behaviour once she is back in the UK. Typically these could include, for example, a requirement to live at a particular address, not to leave a particular area, and to attend regular appointments with the police or other officials. If she fails to comply, she can be arrested and prosecuted.

So will he issue a TEO?

Very likely. There are a number of conditions which have to be met, the most important of which in this case is that he must “reasonably suspect” that Ms Begum:

… is, or has been, involved in terrorism-related activity outside the United Kingdom.”

Terrorism related activity” is very widely defined in S.14 and can include “conduct that gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so.” The Home Secretary does not need to be sure that Ms Begum has been so involved; he need only have reasonable suspicion. No doubt he has that already.

Although there is a degree of judicial scrutiny involved in the issue of a TEO, it is very limited. In an urgent case the Home Secretary can himself issue a TEO his decision is then reviewed by a court. If the case is not so urgent, he must ask a court to issue the order, but it can only refuse to do so, or quash a TEO already made, if the Home Secretary’s decision is “obviously flawed.” As in a judicial review, the issuing or reviewing Court is not allowed to substitute its own view for that of the Home Secretary, it can intervene only if the decision is patently absurd (what lawyers term “Wednesbury unreasonable” after a famous 1948 case involving Wednesbury Corporation), or the decision making process of the Home Secretary has been demonstrably unfair. And just to make doubly sure that a TEO is not improperly refused by a soggy liberal judge, only the Home Secretary is allowed to appeal the court’s decision. The subject of the TEO has no right of appeal.

The baby, of course, cannot be made subject to a TEO. It could return to Britain whatever orders are imposed on Ms Begum. Once on British soil it is quite likely that social services would take an interest in its welfare.

This TEO thing is all very well, but it’s no substitute for sending her to prison, is it? Surely she should be prosecuted and we should throw away the key? She’s a traitor.

There is an array of offences with which Ms Begum could conceivably be charged, although the evidential difficulties of proving most of them are fairly formidable.

Some have been calling for her to be prosecuted for treason. This is exceptionally unlikely.

If it could be shown that she had actively assisted ISIS members in fighting against British forces, it might be said that she had “traitorously adhered to enemies of the Queen,” part of the particulars in the charges laid against the last man to be tried for treason, William Joyce, better known as the Irish born Nazi propagandist, Lord Haw Haw. Whether such ISIS terrorists fighting an undeclared war would be considered “enemies of the Queen” is one of several imponderables.

But there have been no prosecutions for treason since that of Joyce in 1945. Archbold, the criminal lawyers’ “bible” has for the last ten years attenuated its section on treason, asserting that “it is unlikely in the extreme that there will in the foreseeable future be any such prosecutions.” Unless some extraordinary new information comes to light it is surely inconceivable that a teenager who moved to the Islamic State when she was a child will become the first person to be charged with treason since 1945.

If it can be proved that Ms Begum had any involvement in the murder or torture of prisoners, then she can be tried in Britain for those offences.

What, though, if all she did was to travel to Syria intending to marry and have babies? What if she simply turned a blind eye to the evil surrounding her, or if (which amounts to the same thing) it cannot be proved that she did not do so. Her interview with The Times’s Anthony Loyd – which may of course be rather self-serving – suggests that for much of the time she led a life of dull domesticity.

One possible charge then might be that under S.11 of the Terrorism Act 2000, of “membership of a proscribed organisation.” This provides that:

(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation.”

There is no doubt that ISIS is a proscribed organisation, and it was so proscribed when she left the UK.

Does she “belong or profess to belong” to it by moving to IS controlled territory and marrying an IS fighter? I can see considerable scope for argument. The leading case on S.111 does not give much help on what is meant by “belonging” to a proscribed organisation. It is said to be an ordinary English word, although the “core concept” embraces:

… voluntary and knowing association with others with a view to furthering the aims of the proscribed organisation.”

That might cover her behaviour.

What would her punishment be for belonging to ISIS?

There are sentencing guidelines for belonging to a proscribed organisation. They deem all such organisations as equally “harmful” for sentencing purposes, but divide culpability into three categories:

A. Prominent member of organisation

B. Active (but not prominent) member of organisation

  1. All other cases

The sentencing guidelines suggest sentences ranging from 5 – 9 years for Category A, to a high level community order – 4 years imprisonment for Category C. However, the guidelines are applicable only to adults. She went to Syria when she was 15. If applicable at all, the guideline sentences would apply only to her behaviour after her eighteenth birthday.

In a different context, a 15 year old girl persuaded to leave home, travel to a war zone and marry an older man would be considered the victim of child sexual exploitation. Indeed, some of those demanding the harshest punishment for Ms Begum are those who have in the past expressed the most vociferous support for “white girls” groomed by “Muslim grooming gangs.” ISIS is itself a particularly nasty and sophisticated grooming gang.

Any sentencing judge would have a difficult task in deciding the extent to which her own “grooming” by ISIS amounted to mitigation of any crimes which she might have committed. Many might take the view that despite her four year association with one of the world’s cruellest terrorist organisations, and for all her current apparent indifference to its barbarities, Ms Begum is not beyond hope of rehabilitation.

The post Can the Home Secretary prevent Shamina Begum returning to the UK? appeared first on BarristerBlogger.


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