Children cannot consent to being trafficked, and Shamima Begum is a textbook case of child trafficking. The government chooses to ignore that fact

From the earliest reports of Shamima Begum's journey to Syria in 2015, one thing has been obvious to every professional working on the issue of human trafficking. Begum should have been recognised as a victim of human trafficking from the outset.

Both UK and international law define child trafficking as an act ("recruitment, transportation, transfer, harbouring or receipt of persons") exercised upon someone under 18 for the purpose of exploitation.

Smuggling a 15-year-old girl over the Turkish-Syrian border in order to make her the child 'bride' of an ISIS combatant is not a borderline case under this definition. It is a textbook example of child trafficking for the purpose of sexual exploitation. That Begum actively sought to join ISIS plays no role here. A 15-year-old child cannot legally consent to being trafficked for sex any more than she can legally consent to sex in general. Under the UK's Modern Slavery Act 2015, the victim's consent is irrelevant.

As such, the UK government has a clear responsibility to protect and rehabilitate Begum. Instead it has done the opposite, stripping her of her British citizenship and barring her from entering the UK. Last week Begum lost her appeal of that decision, and for the foreseeable future she will stay in Syria. As long as she remains there - as long as the UK government continues to fail her - she is at an increased risk of being re-trafficked.

Unworthy of care?

The key issue of her trafficking has been obscured primarily by questions over her character. The court of public opinion has enjoyed asking whether Begum is a 'good' person, or if her actions have made her a 'deserving' victim of a crime. As the Secret Barrister noted in their book, Fake Law, Begum's public utterances have shown her to be "arrogant, entitled, remorseless and defiant". This has not helped her win over public support in the UK, even though, as the Secret Barrister notes, her statements are perhaps "unsurprising for a fifteen-year-old indoctrinated into a fundamentalist death cult".

The issue of her trafficking has also been obscured by the question of whether the UK government even has the right to revoke Begum's citizenship. Section 40 of the 1981 British Nationality Act permits stripping individuals of their citizenship "if conducive to the public good". But what that phrase means seems mutable for this government - particularly when there is the opportunity for scoring points and looking tough in a culture war.

For despite its handling of the case, the UK's own 2018 Counter-Terrorism Strategy suggests that the 'public good' would be better served by a different course of action. As the Secret Barrister argues, according to this document the correct course for a young British woman trying to leave ISIS and return to the UK with a new-born in tow - as Begum was - would be "to manage the woman's return to the UK, followed by a police investigation and (potentially) a criminal prosecution on her homecoming". The UK's independent reviewer of terrorism legislation, Jonathan Hall KC, has also argued that Britain's national security interests are better served by having Begum return.

In any such prosecution Begum may be entitled to mount a defence under section 45 of the UK's Modern Slavery Act for some of the crimes she was compelled to commit, particularly as an enslaved child.

A miscarriage of justice

On 22 February, the judge writing on behalf of the Special Immigration Appeals Commission acknowledged Begum's probable trafficking even while upholding the decision to revoke her citizenship. The commission determined that "a finding that Ms Begum has been trafficked does not operate as a form of limitation on the Secretary of State's wide powers under section 40."

This judgment also makes clear that the question of voluntary action, and what officials thought that implied for national security, was critical for deciding to use those powers against Begum. As the judgment records the deputy head of the Special Cases Unit, Homeland Security Group, Home Office as saying: "The voluntary nature of Ms Begum's travel to Syria ... was a matter that was specifically considered by the Home Secretary when he was deciding whether to deprive Ms Begum of her British nationality."

The commission does not challenge this. Instead, as the judgment summary explains, "the Commission has accepted ... that the conclusion that Ms Begum travelled voluntarily to Syria align with ISIL [ISIS] is an integral part of the overall national security assessment carried out by the Security Service."

And in case it is not yet clear, the judgement also notes: "This Secretary of State ... maintains that national security is a weighty factor and that it would take a very strong countervailing case to outweigh it."

All put together, the story told here is essentially that:

• concerns over national security have been allowed to outweigh concerns over the trafficking of a British child;

• the judgment of Begum's travel as 'voluntary' has played a key role in deciding what to do with her, even though 15-year-olds are not legally able to consent to trafficking, marriage, sex, abuse, or criminal activity;

• the government has decided to abandon a citizen and trafficking victim, and in doing so it goes against the recommendations of its own counterterrorism strategy.

This focus on whether Begum's travel was 'voluntary' is deeply troubling. The trafficking of adults frequently involves, amongst other things, deception: the trafficker promises a halcyon ideal when they know only abuse and exploitation awaits. This is the sort of thing a Canadian agent smuggling Begum across the Turkish border may easily have done. Deception negates the illusion of voluntary choice in cases involving trafficked adults.

It's entirely possible that Begum's actions were rooted in the lies of others. Or in some other 'means' of trafficking, like threats. But even if they weren't, it doesn't matter. Whatever she did, and whatever happened to her, cannot have been voluntary in the eyes of the law because a child cannot consent. As the UK's Home Office's own guidance on trafficking properly points out, "in a child trafficking case the 'means' component is not required as they [children] are not able to give informed consent to engage in criminal or other exploitative activity, and they cannot give consent to be abused or trafficked" (para 2.6).

In other words, in asserting that the legality of the Home Office's decision hinges in part on the Home Office's understanding of Begum's travel as "voluntary", both the commission and the Home Office have shown very plainly that they do not understand or do not accept the most basic element of the law regarding child trafficking. No matter what it looks like, under UK law Begum cannot have acted voluntarily. This is the law that the sovereign UK parliament has enacted and which the Home Office itself now wishes to disregard.

The commission's decision in Begum's case represents a miscarriage of justice. Many may not be bothered by this. Some would probably prefer to "cut down the law" rather than give Shamima Begum the benefit of it.

But Begum's case represents an example of the privileging of the ignorant whims of prejudiced ministers over the most fundamental tenets of the concept of rule of law. And that should trouble everyone.

From openDemocracy

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