On 19 February 2019, the Home Secretary notified Ms Shamima Begum that he intended to deprive her of her British citizenship. (“the deprivation decision”) The stated reason for the decision was that Ms Begum is “a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL”, and that “[i]t is assessed that [her] return to the UK would present a risk to the national security of the [UK].” In May 2019, Ms Begum made an application for leave to enter the UK, in order to be able to pursue an appeal against the deprivation decision, and to avoid the risk of mistreatment. In June 2019, the Secretary of State refused that application (“the LTE decision”). The Secretary of State certified that this decision had also been taken partly in reliance on information which, in his opinion, should not be made public in the interests of national security and in the public interest.
Ms Begum challenged both the decision to deprive her of citizenship and the decision to refuse her leave to enter the UK before the Special Immigration Appeals Commission (SIAC). As preliminary issues in that appeal, the Special Immigration Appeals Commission determined that the Secretary of State did not depart from his extraterritorial human rights policy when he made the deprivation decision (“the policy issue”) and that, although Ms Begum could not have an effective appeal against that decision in her current circumstances, it did not follow that her appeal should succeed (“the fair and effective appeal issue”). SIAC also rejected her appeal against the LTE decision. The Court of Appeal however allowed Ms Begum’s challenge to the LTE decision but rejected her challenge in the deprivation appeal.
The Secretary of State appealed to the Supreme Court, which unanimously allowed the appeal and refused Ms Begum’s cross-appeal. The result is that Ms Begum’s appeal against the LTE decision is dismissed, her application for judicial review of the LTE decision is dismissed, and her application for judicial review of SIAC’s preliminary determination of the preliminary issues in her appeal against the deprivation decision is dismissed.
The Supreme Court identified four principal errors in the judgment of the Court of Appeal. First, the Court of Appeal misunderstood the scope of an appeal against a decision of the Secretary of State to refuse a person leave to enter the UK. Second, the Court of Appeal erred in its approach to the appeal against the dismissal of Ms Begum’s application for judicial review of the Secretary of State’s refusal of leave to enter the UK by making its own assessment of national security, which it was not permitted to do. Thirdly, the Court of Appeal mistakenly believed that, when an individual’s right to have a fair hearing of an appeal came into conflict with the requirements of national security, her right to a fair hearing must prevail. But the right to a fair hearing does not trump all other considerations, such as the safety of the public. Fourthly, the Court of Appeal mistakenly treated the Secretary of State’s extraterritorial human rights policy as if it were a rule of law which he must obey, as opposed to something intended to guide the exercise of his statutory discretion.
Ayesha Christie, Jonathan Glasson QC, Richard Hermer QC and Jessica Jones were involved in this case.
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Supreme Court judgmenthttps://www.supremecourt.uk/cases/docs/uksc-2020-0156-judgment.pdf