The British government is to challenge a tribunal ruling that allows a former Irish soldier who joined the ISIS terrorist group to enter the UK.
Lisa Smith, 41, a former member of the Irish Defence Forces, was found guilty in May last year of ISIS membership after a nine-week trial at Dublin’s Special Criminal Court. The same trial cleared Smith of a separate charge of financing terrorism.
Before her conviction, Smith was the subject of a Home Office-issued exclusion order that prevented her from entering the UK from December 2019 on the grounds of public security.
However, Smith successfully appealed the order at the Special Immigration Appeals Commission (SIAC), which concluded the enforcement action in her case would be “incapable of justification.”
Home Secretary Suella Braverman is now appealing against the SIAC decision, arguing it was wrong to decide Smith had “immunity” from exclusion.
Smith, a convert to Islam, went to Syria in 2015 after terrorist leader Abu Bakr al-Baghdadi called on Muslims to travel there and support ISIS.
The former soldier was handed a 15-month sentence in July.
Smith’s father is originally from Northern Ireland and her dispute with the Home Office centres on whether she is entitled to enter the UK as a result.
Smith’s home town of Dundalk in Co. Louth sits just south of the border between the Republic and Northern Ireland.
An exclusion order would mean that she would be permanently forbidden from ever crossing that border.
The UK has a legal right to exclude non-British citizens from EEA (European Economic Area) countries, including Ireland, but that does not cover those of dual nationality.
Smith was born in Ireland, but due to her parents being unmarried at the time, she missed out on automatic British citizenship.
Her lawyers argue that she is not responsible for this “accident of birth” and is entitled to be treated as a British citizen under the European Convention on Human Rights.
At a hearing in London on Tuesday, Cathryn McGahey KC, representing the Home Secretary, said: “The Secretary of State’s case is: You are a non-citizen.
“We wish to exclude you because you pose a danger to national security and we can do that because you are a foreign national.
“We accept that you have the right to apply to be a British national.
“If you do that, the Secretary of State can then decide whether to deprive you of the citizenship and exclude you.”
Accident of Birth
Smith, from Co. Louth, previously said she identifies as Irish and believes she is “entitled to be treated as British by virtue of my birth rights,” the court was told in her legal team’s written submissions.McGahey said what Smith seeks is “the status of someone entitled to be treated as if she were a British citizen … for the limited purpose only of the UK’s exclusion laws,” arguing that British nationality is an “indivisible package of rights and obligations.”
“It is not possible as a matter of law for somebody to be treated as though they were British purely to avoid exclusion but to be a foreign national for all other purposes,” she added.
The barrister argued that Smith “seeks a right that … is available only to a British citizen not to a class of persons entitled to be treated as though they were British citizens.”
In written arguments, Hugh Southey KC, representing Smith, said the Home Office’s appeal should be dismissed and the SIAC decision “contains no error of law.”
He argued there was “no justification for the stark differential and less favourable treatment” of Smith “based solely on an accident of birth for which she is not responsible.”
“Ms. Smith lives close to the Irish border with the United Kingdom. As a consequence, her ability to move across the border is part of her social identity,” he added.
Mr. Southey argued that it was discriminatory to require Smith to apply for British nationality and take an oath of allegiance because it was “not consistent with her right to self-identify as Irish, a right safeguarded by the Good Friday agreement.”
Lord Justice Underhill, Lord Justice Lewis and Lady Justice Elizabeth Laing will give their ruling on the case at a later date.
‘Enveloped’ in Black Flag of ISIS
During her judge-only trial last year, Smith had pleaded not guilty to being a member of the terrorist group between Oct. 28, 2015 and Dec. 1, 2019.Dublin’s Special Criminal Court heard how Smith, who had converted to Islam, travelled to Syria after terrorist leader Abu Bakr al-Baghdadi called on Muslims to travel to the area controlled by ISIS.
The prosecution said she had enveloped herself in the black flag of ISIS.
A prosecution lawyer said the court could not ignore that Smith had travelled thousands of kilometres, knowing all the while about the activities of a terrorist organisation that was “up to its neck in blood.”
He said there was no benign ISIS she could have been attempting to join: there was only the terrorist organisation.
Her lawyers had described the case against her as unique and unprecedented, and said there was no evidence that she was a member.
The defence said the prosecution did not show that Smith wanted to become a member of ISIS and was accepted by the organisation.
It was not enough to say she had travelled to an ISIS-controlled area and had been “subsumed” into the organisation.
Her defence lawyer said it was unknown in Irish law for a person to be convicted of an offence without being aware they were committing an offence.
He said she went to Syria to be a dutiful wife and to create a home.
But Mr. Justice Hunt said that there was no room for pleas of naivety or ignorance by the time she travelled to Syria. Her eyes were wide open, he said.
