This latest judgment from the Special Immigration Appeals Commission (SIAC) is the culmination of proceedings which had previously reached the Supreme Court. At that stage the Supreme Court set out legal rules which the SIAC were obliged to follow in dealing with the merits of the appeal. For a critical discussion of those rules in the context of this case see here.

At the outset of their judgment the SIAC [2] acknowledge that the appeal is “about fundamental principles, rights and obligations….British citizenship is a fundamental entitlement and carries with it rights and privileges of huge importance to the individual, in particular the right of abode in this country. The rule of law is equally important, placing at the heart of our constitutional settlement ever since Magna Carta, the right of the subject not to be outlawed or exiled “except by the lawful judgment of [her] peers and the law of the land” (clause 39). Last but not least in this catalogue comes the duty of government, acting for these purposes through the Secretary of State, to uphold and safeguard the national security of the United Kingdom.”

The SIAC went on to say [5] that “National security is not an absolute imperative. It does not trump everything else. It must be weighed against fundamental rights and entitlements.”

It is clear, however, that the rules which the Supreme Court affirmed on the extent to which a court must defer to the Home Secretary on questions of national security provided the Home Secretary with a winning hand in this case. Those rules all but excluded the possibility of the SIAC taking a fresh look at the evidence reaching its own conclusions on which facts were proved. They curtailed their scope for questioning the merits of the predictive or evaluative judgments on the threat to national security posed by Ms Begum.

The impact of these rules in this case can be seen throughout the SIAC judgement, for example [70], in the context of recognising the limited extent to which they can apply the doctrine of proportionality in their review of the decision, they say “….national security as the public interest factor occupying one side of the balance remains (largely) legally inscrutable. To the extent that it can be evaluated, the Commission defers. As we have already said, the Secretary of State is entitled to accord very considerable weight to it. It follows that our review of how the balancing exercise has been performed must be carried out in the context of this legal reality.”

The most troubling feature of the case is the question of whether Ms Begum, who was 15 years old at the time, was trafficked to join ISIL in Syria having been groomed on the internet and by a friend from her school who had taken that path ahead of her. The SIAC set out their position on this in the Summary version of their judgement [15]. They concluded that “…there was a credible suspicion that Ms Begum had been trafficked to Syria within the meaning of relevant international legal instruments. Essentially… the motive for bringing her to Syria was sexual exploitation to which, as a child, she could not give a valid consent.”

The Commission also held that there were arguable breaches of duty on the part of the police and the school authorities in permitting Ms Begum to leave the country as she did when they were aware of the risk that she might take that course.

The government response to that was essentially ‘too bad for her’. The core of their national security argument was that, regardless of trafficking, Ms Begum travelled voluntarily to Syria where she aligned herself with ISIL and remained with them for four years until the collapse of their Caliphate.

The SIAC were clearly uneasy about this position which they described as stark and unsympathetic. Ms Begum’s senior counsel argued that the government’s position on this was both illogical and unfair. If she were to be regarded as a victim of trafficking who had been groomed and radicalised, it would not be surprising that she stole her sister’s passport and took apparently determined steps to leave. Moreover, once she was in theatre she was in the clutches of her traffickers, married to an ISIL fighter much her senior, and there was no realistic prospect of her getting away. The SIAC [283] described these submissions as “compelling and empathetic.” Ultimately the Commission held, recognising again the constraints placed on their powers of review, that in reaching his decision the Home Secretary was not obliged to treat trafficking as a mandatory consideration. He was not obliged to conclude that it outweighed the requirements of national security.

The SIAC were certainly entitled to conclude their judgment by describing this as a case of great complexity and difficulty. In their Summary the SIAC said that there was scope for well informed reasonable people to differ on the competing national security considerations which arose in this case. They observed that “…under our constitutional settlement these sensitive issues are for the Secretary of State to evaluate and not for the Commission.”

Whether or not the constitutional settlement requires that government decisions on national security issues be so well protected from judicial scrutiny is another point on which reasonable people might differ. Meanwhile Ms Begum remains in a camp where she lives in what the SIAC previously described as degrading and inhuman conditions. The UK government did not put her there and they are not responsible for her ongoing detention. The Home Secretary’s decision has, however, closed off the possibility of her ever returning home to the country of her birth.