The Court of Appeal (King, Singh and Flaux LJJ, also sitting as a Divisional Court) today handed down judgment in the next stage of Shamima Begum’s challenge to the deprivation of her British citizenship. The judgment can be found here.
There were two issues in the case: first, what should be the consequence of the finding reached at an earlier hearing by the Special Immigration Appeals Commission (SIAC) and Administrative Court that Ms Begum could not have a fair and effective appeal in her current circumstances; and second, whether SIAC had been wrong in its approach to the question of whether the Secretary of State complied with her policy because the deprivation decision had the direct and foreseeable consequence of exposing Ms Begum to a real risk of mistreatment which would constitute a breach of Article 2 or 3 ECHR (the right to life and the right not to be subjected to inhuman and degrading treatment).
On the first issue, the Court accepted the Secretary of State’s argument that it would be wrong to allow the deprivation appeal without there having been substantive consideration of the Secretary of State’s national security case, but agreed with Ms Begum that her appeal should not be stayed (or proceed without her participation) as had been suggested by SIAC, since that would compound the unfairness she faces. The Court therefore found that Ms Begum must be granted leave to enter the UK to participate in her appeal.
On the second issue, the Court found that SIAC had been wrong to approach this issue as a judicial review rather than a full merits appeal. SIAC is required to decide for itself whether a deprivation decision exposes an appellant to a direct and foreseeable risk of treatment contrary to Article 2 or 3, and not merely to decide whether the Secretary of State was entitled to conclude that the decision created no such risk. The Court ordered that this issue be remitted to SIAC.