R Abdullah Muhammad Rafiqul Islam v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 07 August 2019 |
| Neutral Citation | [2019] EWHC 2169 (Admin) |
| Docket Number | Case No: CO/1802/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 August 2019 |
[2019] EWHC 2169 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Pepperall
Case No: CO/1802/2019
Ramby de Mello (instructed by Capital Solicitors LLP) for the Claimant
David Blundell (instructed by the Government Legal Department) for the Defendant
Hearing date: 26 June 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This claim for judicial review concerns a challenge to a former Home Secretary's decision to deprive a British citizen who joined ISIL of his nationality and seeks orders requiring the Home Office to procure the man's return to the United Kingdom. It raises important issues and is, I was told, the first such case to have come on for hearing before this court. Accordingly, I have taken the unusual step of reserving my decision upon the application for permission to apply for judicial review.
By this claim, Abdullah Muhammad Rafiqul Islam seeks to challenge the Home Secretary's deprivation decision in respect of his son, Ashraf Mahmud Islam. The application was considered on the papers by Walker J who refused permission to apply for judicial review. The father now renews his application before me.
THE FACTS
In order to avoid confusion, I shall refer in this judgment to the father as Mr Islam and to his son simply as Ashraf. Mr Islam is a British citizen who was born in Bangladesh. He currently lives in Dhaka, Bangladesh.
Ashraf was born in London on 6 December 1996. He is a British citizen by birth and lived in some comfort as the only son of a barrister and his wife. He was educated in both the United Kingdom and Bangladesh and appeared to have every advantage in life.
In April 2015, the 18-year-old Ashraf was studying A-level law at Nottingham Law Academy in Dhaka when he disappeared. His father tracked him to a hotel in Istanbul. He was, however, 24 hours behind Ashraf and the trail ran cold. The father reported both Ashraf's disappearance and his suspicions that he might have crossed into Syria to the authorities. In the following month, the family's worst fears were confirmed when they learnt that Ashraf had joined ISIL.
By a letter dated 17 July 2017, the then Home Secretary, the Rt. Hon. Amber Rudd MP, informed Ashraf that she intended to deprive him of his British citizenship pursuant to section 40 of the British Nationality Act 1981. She wrote:
“As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Ashraf Mahmud Islam, of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.
The reason for the decision is that it is assessed that you are a British/Bangladeshi dual national who has travelled to Syria and is aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom.
In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.
Further, I certify that pursuant to section 40A(2) of the British Nationality Act 1981, my decision has been taken in part reliance on information which, in my opinion, should not be made public in the interest of national security and because disclosure would be contrary to the public interest.
I am also giving you notice of your right of appeal against the decision to make a deprivation order, under section 2B of the Special Immigration Appeals Commission Act 1997. Under rule 8(1)(b)(ii) of the Special Immigration Appeals Commission (Procedure) Rules 2003 (as amended) any notice of appeal must be given to the Commission no later than 28 days after you have been served with the notice. I attach an appeal form in case you wish to exercise this right.
The order under section 40(2) of the British Nationality Act 1981 depriving you of your British citizenship will be made after you have been served with this notice. I will endeavour to ensure a copy is served on you.”
Ms Rudd's letter was sent to Ashraf's family home in Bangladesh, being his last-known address. It was received by the father on 22 July 2017.
After years of silence, Mr Islam heard from his son in May 2018 when a message was conveyed to him through the offices of the International Red Cross. By then, Ashraf was detained with other ISIL fighters in a military prison in Kurdish-controlled north-eastern Syria. By a letter dated 26 April 2018, Ashraf sought his father's assistance. He wrote:
“Please do whatever you can and contact whoever you can to help. It's been four months for me here and no one knows what's happening.”
On 13 July 2018, the father lodged an appeal with the Special Immigration Appeals Commission (“SIAC”) seeking to appeal against the Home Secretary's decision. SIAC immediately identified that there were issues as to whether the appeal had been properly instituted and whether it was in time. It therefore invited further submissions.
By a written decision dated 2 October 2018, the Chairman of SIAC, Elisabeth Laing J, rejected the appeal. She held that there was no evidence that Ashraf knew about the Home Secretary's decision or that he had given instructions to bring an appeal. Accordingly, the appeal was not properly brought within rule 9 of the Special Immigration Appeals Commission (Procedure) Rules 2003. Further, even if the father had been entitled to bring an appeal on his own behalf, he had delayed for nearly a year since service of the deprivation decision in Bangladesh. Accordingly, his appeal was out of time. The Chairman made clear, however, that her decision did not prevent Ashraf from seeking to pursue his own appeal once there was evidence that he knew about the Home Secretary's decision and that he had expressly authorised the bringing of an appeal.
Capital Solicitors LLP requested that the decision be reconsidered at a hearing. On 22 March 2019, Elisabeth Laing J directed that the oral hearing would only proceed in the event that the solicitors confirmed that they were instructed by Ashraf and that they had his instructions to proceed with the reconsideration hearing. Since the solicitors did not have instructions from Ashraf, they were not able to pursue the matter.
Meanwhile, Ashraf had been interviewed by ITV News. He confirmed to journalists that he had joined ISIL and that he had mixed with other British jihadis. With masterful understatement, he said that he had made “a mistake”, that he wanted to “come home” and that he would be willingly imprisoned in a British prison.
The father's solicitor, Syed Ahmed, says that Mr Islam does not know whether his son was a combatant. In the detailed grounds, the father asserts his own belief that his son was not involved in any armed conflict. Such belief does not, however, appear to have any proper evidential basis and would appear to be rooted more in hope than hard fact. Indeed, Mr Ahmed notes in his evidence that, in his press interviews, Ashraf asked for forgiveness for having joined as a “foreign fighter”.
The position in respect of former ISIL combatants remains fluid. Some countries, notably France, have agreed to take back their nationals. The United States is seeking to prosecute some of the most notorious ISIL members suspected of involvement in the beheading of Americans in its federal courts. Other countries, such as the United Kingdom, have not taken steps to repatriate their nationals. Indeed, where a person has dual nationality, the British response has been to deprive them of their British citizenship.
The evidence before me is that, if not taken back by their own countries, the Kurds are likely to hand-over the former ISIL combatants in their custody to either the Iraqi or Syrian authorities for trial. Combatants not taken by either Iraq or Syria may well be tried by an ad hoc tribunal set up by the Kurdish group holding them. Conviction of involvement as an ISIL combatant by the Iraqi or Syrian courts or by a tribunal established by the non-state actors in Kurdish-controlled Syria is likely to lead to the death penalty.
Mr Ahmed asserts that Ashraf does not have a Bangladeshi passport and that Bangladesh will not take Ashraf back. In his evidence, he relies on public statements made by the Bangladeshi government in respect of the well-publicised case of Shamima Begum. Bangladesh has publicly asserted that Ms Begum had not even visited the country. If that is right, then the position is of course different in the case of Ashraf since he was living and studying in Bangladesh immediately before travelling to Syria. There is, however, no evidence as to Bangladesh's position in respect of Ashraf.
JUDICIAL REVIEW
On 2 May 2019, Mr Islam filed a claim seeking permission to apply for judicial review against the former Home Secretary's decision of 17 July 2017. The detailed grounds set the net somewhat wider:
17.1 The core complaint remains the deprivation decision and the Secretary of State's alleged failure to implement a “proper policy” in relation to the deprivation of citizenship of British nationals who are overseas and at real risk of treatment in breach of their human rights.
17.2 Complaint is also made that the Home Office served the notice in Bangladesh. It is argued that the Home Secretary had no power to issue the decision while Ashraf was not in the United Kingdom. The father argues that maintaining the...
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