No Safe Routes

In February 2015 Shamima Begum and two friends left East London for Syria, where they joined Islamic State. Soon after they arrived, they were married to IS fighters. At the time, senior police, the courts and even the Home Office saw them as victims of grooming and trafficking. As late as January 2019, the Home Office claimed to ‘consider minors, assessed to have been radicalised, as vulnerable victims’. A month later, the Times ran a story on Begum, who was by this time nineteen, pregnant and living in a Syrian refugee camp. (The fate of her two friends, Amira Abase and Kadiza Sultana, isn’t clear. Sultana is thought to have been killed in an air strike in 2016; Abase may also be dead.) Begum told the Times that she wanted to return to the UK to have her baby, but the government decided to make this im­pos­sible by stripping her of her cit­izenship. Amendments to the 1981 British Nationality Act give the home secretary – then Sajid Javid – the power to deprive someone of their citizenship so long as it is judged ‘conducive to the public good’ and doesn’t result in the person becoming stateless (the government argued that Begum qualified for Bangladeshi citizenship through her parents). The Special Immigration Appeals Commission (SIAC) endorsed the decision a year ago and the Court of Appeal upheld it on 23 February, agreeing that, aged fifteen, Begum ‘had made a calculated decision to travel to Syria’. Unless the judgment is overturned by the Supreme Court or the European Court of Human Rights, Begum will remain, stateless, in the al-Roj camp in Syria.

On the same day Begum’s appeal was dis­missed, Ibrahima Bah, a young Seneg­alese man, was sentenced to nine and a half years for gross negligence manslaught­er and facilitating illegal entry to the UK after being held criminally responsible for the drowning in December 2022 of at least four people (the bodies of five others were never found) after a dinghy collapsed in the Channel. The judge accepted that Bah, whose age is a matter of dispute but who was definitely a teenager at the time of the crossing, had been coerced and threaten­ed into agreeing to steer the ‘death trap’ dinghy. Survivors from the dinghy describ­ed his efforts to save the people on the boat. He was sentenced all the same. Bah and Begum were both classed as adult perpetrators by the judicial and pro­secutorial authorities, and in both cases politicians played a significant role in the decision to do so. Such interventions have proved difficult to challenge. As the SIAC noted in February 2023, ‘certain national security questions are simply not justic­iable.’ Begum has not been permitted to attend any UK court hearings: Javid said the risk to national security would be too great and the Supreme Court ruled in February 2021 that the home secretary’s view was final. The job of the SIAC was merely to decide whether the decision to deprive her of citizenship was ‘lawful’. It was a tick-box exercise. There was a ‘credible sus­pic­ion’ that Begum had been traffick­ed for sexual exploitation. That had been con­sidered. She was a child at the time. Considered. The decision would render her de facto stateless. Considered. The con­dit­ions at the prison camp amounted to in­human treatment. Considered. Public sector equal­ity duty and the impact of the decision on community relations had to be taken into account. Done. National security. For the home secretary to decide. Appeal dismissed.

The Court of Appeal, whose role was to check that the SIAC had not erred in law, agreed. Begum might have been a victim of trafficking, but 2015 was a long time ago. The home secretary owed her no duty of protection or investigation, and his assessment – that national security factors out­weighed her putative victimhood – was not for the court to make. Nowhere in eith­er judgment is a description of the fact­ors that indicate Begum posed, and continues to pose, a risk to the UK’s national security.

The extraordinary deference to the home secretary’s evaluation suggests that, as far as national security is concerned, the courts have abandoned their role of holding the executive to account. This is in part the consequence of recent gov­ern­ment legislation, which has reduced the power of the courts and the scope of appeals, and has particularly affected nat­ion­ality, immigration and asylum law. The last decade has seen the imposition of stat­utory min­imum and mandatory sentences (Police, Crime, Sentencing and Courts Act 2022); the retrospective valid­ation of unlawful de­cisions, such as no-notice de­privation of citizenship (Nationality and Borders Act 2022); the unilateral rewriting of inter­national obligations to re­move the possib­ility of judicial interpret­ation (Nat­ionality and Borders Act); the ban­ning of domestic courts from making interim orders pre­vent­ing the removal of ‘inadmissible’ asylum seekers (Illegal Mig­ration Act 2023); the introduction of the right of ministers to ignore interim orders from the Europ­ean Court of Human Rights (Illegal Migrat­ion Act); and the imposit­ion of statutory presumptions, such as ‘Rwanda is safe’ (Safety of Rwanda Bill, which may soon become law despite the best efforts of the House of Lords).

The higher courts are generally deferent­ial to ministers’ views of national security, but in Begum’s case the court appears to have given Javid carte blanche in his de­cision-making, no matter the cost to a British-­born woman who at nineteen had lost three children, her liberty and her citizenship. Britain is an outlier when it comes to the treatment of young citizens caught up with IS. Belgium, France, Germany and Canada have repatriated scores of people. The UK has repatriated only two. The Euro­pean Convention on Action against Trafficking states that ‘the recruitment, transportation, transfer, harb­ouring or receipt of a child [defined as someone under the age of eighteen] for the purpose of ex­­ploitation shall be considered “trafficking in human beings”,’ even if it does not involve coercion, abduction, fraud, force or threats, abuse of power or vulnerability. Despite this, Javid decided that Begum was mature enough at fifteen for her ‘align­ment’ with IS to be ‘voluntary’, and the courts ­acquiesced.

Migrant, refugee and BME British child­ren and young people are often regarded as adults by the police and courts. The treatment of Child Q, a Black 15-year-old Hackney schoolgirl who was strip-searched by two Metropolitan Police officers on suspicion of concealing cannabis (none was found) without an appropriate adult present and while she had her period, led to research by the Children’s Commission­er which found that 2847 children aged between eight and seventeen were strip-searched between 2018 and 2022; 38 per cent of them were Black. Policies designed to deal with county lines and gang-related offences fail to treat children of colour as children. In the CPS guidance to prosecut­ors, generalisations and racial stereotypes replace any real consideration of youth or vulnerability.

The migrant children and young people – Iranian, Albanian, Vietnamese, Afghan, Syrian, Sudanese – who arrive on small boats are treated with the same suspicion. Age assessments, which were included in the Nationalities and Borders Act in an attempt to ensure that adult asylum seekers can’t ‘cheat’ the system and receive the pro­tections afforded to children, are unreli­able and informed by racial tropes – sub-Saharan Africans such as Ibrahima Bah are most often wrongly assessed, prosecuted and sent to adult prisons. Bah’s birth cert­ificate says he’s seventeen; the judge said he was ‘about twenty’.

Bah’s prosecution for gross negligence manslaughter is another example of the dismissal of youth and vulnerability in fav­our of political imperatives. Of course, the drowning of at least four people on the dinghy created pressure to prosecute. But, as the judge admitted in his sentencing remarks, Bah did not bear ‘primary respons­ibility’ for the deaths. Mr Justice Johnson accepted that Bah was not responsible for the condition of the boat, which was ‘not remotely seaworthy for a Channel crossing’, or for its underpowered engine, insufficient buoyancy aids, the absence of a rigid hull, seating, lights, navigation equip­ment, compass, VHF radio, emerg­ency equipment, flares, life raft, waterproofs, life jackets, first aid kits, food, drinking water or paddles, or for its gross overcrowding (there were 39 survivors). Bah played no part in organising the crossing, had no say in the choice of vessel, did not force anyone onto the dinghy and was himself subjected to what the judge refer­red to as ‘a degree of coercion’, after he tried to back out of his agreement to steer the boat, in lieu of the £2000 the smugglers asked for the crossing, when he saw its condition and the number of people onboard. There was nothing inherently dangerous in his handling of the boat, and when it collapsed after some of the passengers stood up in the hope that a passing trawler, the Arcturus, might pick them up, he managed to bring the inflatable alongside the fishing boat. The CPS knew all this when it decided that there was a realistic prospect of conviction and that pro­secution was in the public interest – and again when it decided that Bah should face a second trial after the jury in the first trial failed to agree a verdict.

There are no longer any ‘safe and legal’ routes for refugees like Bah to come to the UK (the Illegal Migration Act, which came into force last year, holds that an asylum claim by anyone who arrives on a small boat or by any other ‘irregular’ route is ‘inadmissible’). The arrival of these desperate people is portrayed as an existential threat that justifies spending £1.8 mil­lion on the deportation of a single asylum seeker to Rwanda and billions of pounds on border security. It justifies ignoring the rulings of the European Court of Human Rights, subverting the Refugee Convent­ion (which prohibits the penalisation of re­fugees who arrive irregularly) and rewriting the law to criminalise – as well as deport – the undocumented. Research undertaken by Victoria Taylor at the Oxford Centre of Criminology shows that, in the sixteen months after the Nationality and Borders Act came into force in April 2022, 253 people were convicted of the new offence of ‘illegal arrival’ (which has a maximum sentence of four years) and 49 were charged with ‘facilitating’ this offence, even though many of them had, like Bah, been coerced or threatened into piloting an unsafe boat. The decision to charge him with manslaughter is another unwelcome novelty.