The Supreme Court has unanimously upheld the Secretary of State’s decision to refuse Shamima Begum leave to enter the UK. The Supreme Court’s decision follows Ms Begum’s challenge to both the decision to deprive her of citizenship and the decision to refuse her leave to enter the UK that was heard by the Special Immigration Appeals Commission (SIAC). SIAC had refused her appeal against the leave to enter decision and had ordered that as she could not currently have a fair and effective appeal her case should be stayed. The Court of Appeal had reversed SIAC’s decisions and held that Ms Begum should be granted leave to enter to participate in her appeal. The Secretary of State then appealed to the Supreme Court, which unanimously allowed the appeal and refused Ms Begum’s cross-appeal.
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.
Jonathan Glasson QC was instructed by the Government Legal Department for the Secretary of State for the Home Department, Jessica Jones was instructed by Birnberg Peirce for Ms Begum, and Richard Hermer QC and Ayesha Christie, intervened for Liberty.