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<\/a>Shamima Begum<\/p>\nBegum, then aged 15, left Bethnal Green in east London with two school friends in February 2015. She travelled to Syria and, as the courts put it<\/a>, \u201caligned\u201d herself with Islamic State<\/a>, the brutal terrorist organisation also known as ISIL, ISIS and Daesh. Within days, she was \u201cmarried off<\/a>\u201d to a much older man and had three children, all of whom died.<\/p>\n Islamic State\u2019s self-styled caliphate effectively collapsed in January 2019 after a series of military defeats. The following month, Begum was taken to the Al-Roj detention camp in northeastern Syria, where it\u2019s believed she remains.<\/p>\n The British Nationality Act 1981<\/a> allows a secretary of state to deprive a person of citizenship status if \u201csatisfied that deprivation is conducive to the public good\u201d. This is the power which some opposition politicians are now urging the current home secretary to use in the case of the Egyptian activist Alaa Abd el-Fattah<\/a>. However, it is now used very sparingly: Home Office guidance to staff<\/a> suggests its use should generally be confined to cases involving threats to national security, terrorism, hostile state activity, serious organised crime or war crimes.<\/p>\n In February 2019, Begum was deprived of her citizenship under this power by the then home secretary Sajid Javid. She is now stateless.<\/p>\n In February 2020, the Special Immigration Appeals Commission \u2014 the court known as Siac \u2014 decided that Begum had no right to be physically present in UK while she appealed against the home secretary\u2019s decision.<\/p>\n In February 2021, the Supreme Court upheld that decisio<\/a>n, overturning a ruling by the Court of Appeal from July 2020 in Begum\u2019s favour.<\/p>\n In February 2023, Siac dismissed her appeal<\/a> against the home secretary\u2019s decision to remove her citizenship.<\/p>\n In February 2024, a further appeal to the Court of Appeal against Javid\u2019s decision was dismissed<\/a> by the lady chief justice and two senior appeal judges.<\/p>\n In August 2024, Begum was refused permission to appeal to the Supreme Court<\/a> by a panel of three justices. I analysed the court\u2019s reasoning<\/a> at the time.<\/p>\n In December 2024, she lodged an application at the human rights court in Strasbourg.<\/p>\n In December 2025, the court announced<\/a> that it had \u201ccommunicated\u201d her complaint to the UK government. This was first reported, as far as I can see, by the website Middle East Eye<\/a>.<\/p>\n Under rule 54 of the court\u2019s rules<\/a>, a chamber of judges may declare an application inadmissible and strike it out of the lists. That was hardly likely in a case raising new legal issues that had come before the UK\u2019s most senior judges.<\/p>\n If a case is not thrown out at the initial stage, the court may put questions to the parties on which the government and the applicant are invited to make written submissions. In the light of these responses, judges decide whether or not to hold an oral hearing before delivering their ruling.<\/p>\n At all levels from Siac to the Supreme Court, Begum\u2019s legal case has been based on the argument that she had been the victim of human trafficking \u2014 which is regarded as an international crime and a form of modern slavery.<\/p>\n Article 4 of the human rights convention \u2014 one of the treaty\u2019s three absolute rights \u2014 says, in part:<\/p>\n No one shall be held in slavery or servitude.<\/p>\n No one shall be required to perform forced or compulsory labour.<\/p>\n Siac said there was a \u201ccredible suspicion\u201d that Begum had been recruited, transferred and then harboured for the purpose of sexual exploitation. But in its view that did not make it unlawful for the home secretary to deprive her of her citizenship; and it was not a breach of article 4.<\/p>\n The Court of Appeal discussed the duties and obligations that flowed from a credible suspicion of trafficking. These consist of operational duties \u2014 including protecting a victim from further harm and facilitating the victim\u2019s recovery \u2014 as well as investigative duties.<\/p>\n It was arguable that the authorities had failed to protect Begum while she was in London and should have stopped her leaving. But that was four years before her citizenship was removed. In the court\u2019s view, there was no connection between a possible breach of the protective duty in 2015 and the deprivation of citizenship decision in 2109.<\/p>\n Nor was there any obligation to repatriate Begum while investigating the circumstances of her departure.<\/p>\n Accordingly, said the Court of Appeal<\/a>,<\/p>\n we are not persuaded that there was any obligation on the secretary of state to take into account the possibility that there might be a duty to investigate the circumstances of Ms Begum\u2019s trafficking; alternatively, to consider whether any such investigation as might be required would be enhanced by her presence in this country.<\/p>\n After dismissing other arguments, the appeal judges concluded that the home secretary\u2019s decision had not been unlawful.<\/p>\n Although a panel of three justices refused to let Begum appeal to the Supreme Court, the panel took the unusual step of giving brief reasons for doing so. The justices said<\/a>:<\/p>\n The argument which the appellant [Begum] seeks to advance on appeal to this court is that, when taking the deprivation decision in 2019, the secretary of state was required by article 4 of the European Convention on Human Rights to consider whether the appellant (then in Syria) was a potential victim of trafficking, whether there had been any failures by public authorities to protect her from trafficking, the obligations owed to her under article 4 at that time as a victim or potential victim of trafficking, and whether deprivation would impede the state\u2019s ability to discharge those obligations. <\/p>\n His failure to do so is said to have rendered the deprivation decision a violation of the appellant\u2019s rights under article 4.<\/p>\n The panel continued<\/a>:<\/p>\n This argument is based on submissions as to the effect of article 4 which appear to the panel to go well beyond the existing case law of the European Court of Human Rights or the incremental development of the principles established by that case law: for example, that the non-punishment principle extends to a decision to deprive a person of her citizenship on grounds of national security, that the recovery duty applies to persons outside the state\u2019s jurisdiction and that the restitutionary obligation can give rise to an obligation to repatriate.<\/p>\n The Court of Appeal rejected similar submissions on the basis of the existing case law of the European court and the approach to the application of the Human Rights Act 1998 laid down by this court in a number of recent authorities. <\/p>\n In the panel\u2019s view, they were right to do so. Whether the convention law should be developed as the appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the European Convention on Human Rights.<\/p>\n It is not the role of this court to develop the law under the convention well beyond the principles established by the European court.<\/p>\n Officials at the human rights court have summarised the arguments<\/a> now before the court:<\/p>\n The applicant complains under article 4 of the convention that the secretary of state, in deciding to deprive her of her citizenship, did not consider: <\/p>\n (a) whether she might have been a victim of trafficking and whether that led to the acts for which the state was considering depriving her of her citizenship; <\/p>\n (b) whether there had been any potential failures by the state to take reasonable steps to protect her from being trafficked in breach of the protective duty and, if so, whether restitutionary obligations might be owed;<\/p>\n (c) whether depriving her of her citizenship would frustrate or prevent the discharge of the article 4 investigative and operational duties, or the restitutionary obligations arising from a prior breach of the protective duty, and <\/p>\n (d) whether, in all the circumstances of [the] case, deprivation could nevertheless be justified on national security grounds.<\/p>\n We can see that these reflect the arguments considered by the UK courts. Point (d) is unlikely to be one supported by Begum.<\/p>\n The Strasbourg judges then asked four questions<\/a>, which I shall consider in turn:<\/p>\n 1. For the purposes of the article 4 complaints made in the application, was the applicant at all material times within the jurisdiction of the United Kingdom within the meaning of article 1 of the convention?<\/p>\n This question is fundamental. Article 1 requires member states to \u201csecure to everyone within their jurisdiction\u201d the rights and freedoms set out in the convention. Sir James Eadie KC, for the home secretary, argued that Begum was outside the jurisdiction of the UK courts when the deprivation decision was taken. The Court of Appeal agreed:<\/p>\n Ms Begum was outside the jurisdiction and outside the control of the UK government when the decision was made to deprive her of her citizenship. There was no obligation under the European Convention of Human Rights to repatriate her in 2015 or 2019 and there is none now.<\/p>\n On the other hand, there is no doubt that Begum was within the UK\u2019s jurisdiction in the period leading up to her departure in 2015. She argues that the state had a protective duty towards her at that time; it should have taken reasonable steps to protect her from being trafficked.<\/p>\n 2. Having regard to the facts of the case at hand, has there been a violation of the applicant\u2019s rights under article 4 of the convention by virtue of the decision to deprive her of her citizenship?<\/p>\n This question assumes a finding of jurisdiction. A state may have jurisdiction over its citizens when they are outside its territory. Members of the UK\u2019s armed forces are subject to military law wherever they are. The UK asserts jurisdiction to try its citizens for murder or manslaughter committed anywhere in the world and there is also universal jurisdiction for war crimes. In practical terms, though, Begum was clearly beyond the physical jurisdiction of the UK authorities once she was in ISIS-controlled territory.<\/p>\n 3. Did the secretary of state for the home department\u2019s decision to deprive the applicant of her citizenship engage her rights under article 4 of the convention? Did the secretary of state have a positive obligation, by virtue of article 4 of the convention, to consider whether the applicant had been a victim of trafficking, and whether any duties or obligations to her flowed from that fact, before deciding to deprive her of her citizenship?<\/p>\n These questions \u2014 the second, in particular \u2014 lie at the heart of this case. The human rights court has established a number of positive obligations through case-law. So, for example, the right to life, protected by article 2, requires governments to investigate deaths that may have been caused by the state. How far do these obligations go? Should the home secretary have at least considered, before depriving Begum of her citizenship, whether the state had been at fault in not protecting her four years earlier? If Javid had concluded that the UK was to some extent responsible, should that have prevented him from depriving Begum of the the state\u2019s protection?<\/p>\n 4. Was the deprivation of citizenship analogous to a criminal prosecution? Was it a \u201cpenalty\u201d within the meaning of article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005<\/a> (see, for example, VCL and AN v the United Kingdom<\/a>, 16 February 2021)?<\/p>\n Article 26 of the anti-trafficking conventio<\/a>n says, in effect, that victims who have been compelled to take part in unlawful activities should not necessarily be penalised for doing so.<\/p>\n The case referred to was decided two years after Javid\u2019s decision. It was brought by two Vietnamese youths who were trafficked to the UK and put to work, separately, in illegal cannabis factories. Each was convicted of a drugs offence. <\/p>\n The human rights court found the UK in breach of article 4 for failing to take operational measures to protect them as victims of trafficking. The applicants had also been denied fair trials. Each was awarded compensation of \u20ac25,000.<\/p>\n Ruling on their application in 2021, the court said<\/a>:<\/p>\n It is now well established that both national and transnational trafficking in human beings, irrespective of whether or not it is connected with organised crime, falls within the scope of article 4 of the convention\u2026<\/p>\n The member states\u2019 positive obligations under article 4 of the convention must be construed in the light of the Council of Europe\u2019s anti-trafficking convention and be seen as requiring not only prevention but also victim protection and investigation.<\/p>\n What the Strasbourg court is now asking the UK and Begum<\/a> is whether her application should be regarded as analogous to a case such as this, where the trafficked victims were punished for criminal offences.<\/p>\n