Isobel Renzulli: Begum v SSHD (2023): A restrictive approach to Article 4 ECHR 

On 22 February 2023, the judgment of the Special Immigration Appeals Commission (‘SIAC’ or ‘the Commission’) was published, upholding the Home Secretary’s decision to deprive Shamima Begum of her British citizenship under section 40(2) of the British Nationality Act 1981 (‘‘the BNA 1981’’) on the ground that it would be conducive to the public good to do so, because her return to the United Kingdom would present a national security risk.

The present post considers the judgment in relation to the issue of Ms Begum being a victim of trafficking and her rights under article 4 ECHR. There were nine grounds pleaded before SIAC. Particularly relevant to the issue of trafficking are grounds 1 and 2. Ground 1 was that the Secretary of State failed to take into account a mandatory relevant consideration and/or failed to undertake proper inquiries into it – namely that Ms Begum may have been a victim of trafficking. Ground 2 was that the decision to deprive Ms Begum of her British citizenship was in breach of section 6 of the Human Rights Act 1998, as it was not compatible with Article 4 ECHR, because there was a credible suspicion that she had been trafficked. 

Three interconnected points are considered here.

Article 4(1) of the European Convention of Human Rights (ECHR) requires that no one ‘shall be held in slavery or servitude’. Human trafficking as defined in the Palermo Protocol on Trafficking in Persons and the Council of Europe on Action Against Trafficking Convention (ECAT) has been found to fall within the scope of Article 4(1) in Rantsev v Cyprus and Russia 2010. As well as imposing upon states parties a negative obligation not to subject persons to slavery, servitude, or forced or compulsory labour, Article 4 also contains the following positive obligations. Firstly, States must put in place a ‘legal and administrative framework’ to prohibit and punish violations of Article 4 (Rantsev [284]). Secondly, where the state authorities are aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual has been, or is at real and immediate risk of being, trafficked or exploited’, the state is required to take ‘operational measures’ to remove the individual from the risk, so long as they do not impose ‘an impossible or disproportionate burden’ on the state ([286]), referred to as the ‘protective duty’. Thirdly, Article 4 entails a procedural obligation to investigate promptly situations of potential trafficking and to punish offenders ([288]), referred to as the ‘investigative duty’.

SIAC started by finding that there is credible suspicion that Ms Begum is a victim of human trafficking. It then considered the claimant’s submission that the Home Secretary’s decision to deprive Ms Begum of her British citizenship under section 40(2) of the BNA 1981 amounted to a breach of the state’s protective and investigative duties under article 4(1) ECHR. In relation to the protective duty, the Commission acknowledged that there might have been failures to protect Ms Begum as a possible victim of trafficking in respect of the period between December 2014 and February 2015 – that is, the time immediately preceding Ms Begum’s departure from the UK to join ISIS fighters in Syria, via Turkey ([224]).The Commission went on to suggest that the failures to protect her at that time should be investigated ([224]). However, this was not seen to have any bearing on whether the decision to deprive her of her citizenship was itself a breach of the protective duty. According to the Commission there must be a direct connection between the exercise of the power and the violation of the right ([238]).

Similarly, in relation to the alleged breach of the investigative duty arising under Article 4, the Commission did not find ‘a direct, obvious and essential nexus’ with the exercise of ‘an admittedly wide discretionary power’ ([228]). Thus, according to SIAC, the section 40 decision did not breach the Article 4 procedural requirement that the authorities institute and conduct an effective investigation, meaning instituting and conducting a prompt investigation capable of leading to the establishment of the facts and of identifying and – if appropriate – punishing those responsible (Rantsev, [288]). However, an investigation into the circumstances surrounding the authorities’ failure to protect Ms Begum between December 2014 and February 2015, as well as an investigation to establish the facts concerning trafficking to become a ‘‘jihadi bride’’ and to identify and prosecute potential offenders were never carried out. The failure to do so has not been remedied. 

As a victim of trafficking Ms Begum’s Article 4 rights give rise to an investigative burden to be discharged by the authorities. Presently, this duty is ongoing. Importantly, according to the Strasbourg jurisprudence, the victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (Rantsev, [288]; L.E. v Greece, [68]; and C.N. v the United Kingdom, [69]). According to the investigative guidance on the implementation of the Modern Slavery Act 2015, investigations involving presumed victims or victims require a trauma informed approach to handle individuals sensitively, including making them safe. There might not be a ‘direct’ link between the Home Secretary’s section 40 decision and Article 4 in the sense that the failures did not originate from the Home Secretary’s decision. Nevertheless the deprivation of citizenship, making Ms Begum de facto stateless, and the consequent loss of the right to abode in the United Kingdom do not make her participation in the investigative procedure any easier and is likely to further compound the ongoing failures to investigate. If her rights are to be practical and effective (Rantsev, [275]), appropriate measures should be implemented to allow the conduct of effective investigations and her participation in the proceedings. Appropriate measures such as allowing Ms Begum to come back to the UK  arguably would not impose an impossible or disproportionate burden on the authorities.

A second point relates to the degree of judicial self-restraint on matters of national security, and its impact on the protection of human rights. Article 4(1) ECHR is a so-called absolute or unqualified right, that is a right which may not be subject to the public interest exception and to a balancing act. It cannot be overridden under any circumstance whatsoever and is non-derogable, i.e. nothing justifies any form of modern slavery, such as trafficking in human beings, not even in the event of a public emergency threatening the life of the nation (Article 15(2) ECHR; C.N. v the United Kingdom). Examining ground 1 in its supervisory capacity, SIAC treated the issue of the complainant’s trafficking as a consideration which could be set aside since nothing in the statute suggests it is a mandatory relevant consideration for the decision maker ([255]). However, the lack of a basis in the empowering legislation does not mean the Home Secretary must not take into account human rights issues. Under section 40(2) BNA 1981 it is for the Secretary of State to decide whether the deprivation of citizenship is conducive to the public good. In coming to the decision national security may well be a weighty factor to be taken into account. The absence of statutory reference to implicit or explicit considerations, however, does not automatically remove from the decision maker’s view human rights issues which might arise in connection with the use of that power, and certainly not when it comes to absolute human rights. The Commission itself would appear to agree with this in the opening of the judgment when it says: ‘National security is not an absolute imperative. It does not trump everything else. It must be weighed against fundamental rights and entitlements’ ([5]). However, the reasoning does not subsequently follow through. According to the Commission, the trafficking consideration may be a material factor to which the decision maker may give no weight at all, “since questions of weight and balance are pre-eminently for the decision-maker and not for the Commission, subject always to Wednesbury review” ([260]). Given that the Commission appears to have very little power to scrutinise the home secretary’s assessment of the security situation, as SIAC itself admits ([70]), and in light of the absolute nature of the prohibition of trafficking it seems that, when considering the lawfulness of the exercise of the discretion, a more searching scrutiny is warranted. 

The third point concerns the fluctuating relationship between domestic and international (human rights) law. The complainant argued that the Secretary of State was under an obligation to repatriate Ms Begum under article 16 ECAT [229]. It was argued that the Secretary of State has adopted Article 16 as a matter of policy by virtue of the Home Office guidance, “Victims of Modern Slavery – Competent Authority Guidance” [231-232]. SIAC found the Guidelines to be insufficient and rejected the existence of a justiciable right to be repatriated, since ECAT, unlike the ECHR, has not been incorporated into domestic legislation and therefore it does not give rise to rights enforceable by domestic courts. This is correct. Nevertheless domestic courts do refer to the UK’s unincorporated international obligations when interpreting the law. In MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC , cited by SIAC, the Supreme Court did refer to specific provisions in ECAT, e.g. Article 13, in order to spell out more clearly the investigative rights of an alleged victim of trafficking facing a Home Office removal decision. In doing so, it considered the European Court of Human Rights’ Article 4 jurisprudence and its own interpretative reliance on international instruments such as ECAT and the Palermo Protocol on Trafficking in Persons. In the present case, however, the complainant did not argue, and the Commission agreed, that article 16 ECAT fleshes out the substance of Article 4. SIAC implicitly hinted (see footnote 12 p 46 referring to (AB) v SSJ [2021] UKSC 28 [57]) that doing so would run the risk of construing the Convention too generously in favour of an applicant, taking the protection of Convention rights further than the domestic courts can be fully confident that the European court would go. Whether this is the case might now be answered if and when the case reaches the Strasbourg Court. In the meantime, the circumstances in which a domestic court might feel comfortable expanding the protection of an ECHR right in light of unincorporated international provisions remain arguably unclear or at odds with ‘the presumption of compatibility’. According to the latter, in fundamental rights cases courts will interpret domestic law in a manner which does not place the United Kingdom in breach of its international obligations (R v Secretary of State for the Home Department ex p. Venables [1998] AC 407 at 499, per Lord Browne-Wilkinson). 

It is baffling that Ms Begum has been recognised as a victim of trafficking who might have been failed by the authorities on multiple occasions yet none of the protections available to her under article 4(1) ECHR appear to be applicable. It is even more troubling that the decision-maker bears no responsibility for the use of wide discretionary powers that in effect further deepen the failures even though these failures did not originate in the decision. It is also unclear to what extent, if any, national security factors take precedence over anti-trafficking obligations in view of the absolute nature of article 4(1) ECHR and how far the domestic courts are willing to go to provide effective protection. Waiting for the case to reach the Strasbourg court might eventually yield some answers. Until then though a fundamental right might have to remain theoretical and illusory.

The author would like to thank the UKCLA blog editors. Any mistakes remain the author’s own.

Isobel Renzulli is a Lecturer in law at the Law School of Brunel University.

(Suggested citation: I. Renzulli, ‘Begum v SSHD (2023): A restrictive approach to Article 4 ECHR’, U.K. Const. L. Blog (29th March 2023) (available at