The Supreme Court has today handed down its decision on the appeals in the case of Shamima Begum. Ms Begum sought to challenge the Secretary of State’s decision to deprive her of British citizenship. The judgment is an enormously important analysis of the role of the courts, and their relationship to the Secretary of State, in cases raising national security issues. It deals with significant constitutional issues about the balance to be struck between the protection of procedural rights and the protection of the public from terrorism. It is an important restatement of the approach to be taken, and the constitutional balance, in such cases.
Ms Begum was one of the three Bethnal Green schoolgirls who left the UK in 2015 and travelled to Syria where they aligned with ISIL. Following a series of interviews she gave to the media from a refugee camp in northern Syria in February last year, the Secretary of State decided to deprive her of her British citizenship. She appealed against that decision and later applied for entry clearance to enable her to enter the UK to take part in her appeal. She had a separate appeal and judicial review against the decision to refuse to grant her entry clearance.
Ms Begum argued that if she could not have a fair and effective appeal (“FEA”), her appeal should be allowed outright. Alternatively, she argued that she should be granted leave to enter (“LTE”) in order to prosecute her appeal. She also argued that the Secretary of State had erred in the application of her policy (the “Policy”) that, even if the ECHR had applied to Ms Begum (which it did not, because she was outside the UK’s jurisdiction), there was no evidence that the refusal of LTE would result in a breach of her Article 2 and 3 ECHR rights. A further argument, that the deprivation decision rendered her stateless, was rejected by SIAC and not challenged in the Court of Appeal or Supreme Court.
Her challenges were procedurally complex. Broadly, she failed before the Special Immigration Appeals Commission and Administrative Court (with Elisabeth Laing J sitting as both Chair of SIAC and an Administrative Court Judge) but succeeded, in part, before the Court of Appeal and Divisional Court (identically constituted: King, Flaux and Singh LJJ). The Court of Appeal / Divisional Court rejected her argument that her appeal should succeed outright but found that she should be granted entry clearance to return to the UK and prosecute her appeal, notwithstanding the national security concerns that had been expressed by the Secretary of State. It also found that SIAC had erred in applying administrative law principles to the examination of the legality of the Secretary of State’s application of the Policy in her case.
The Supreme Court had before it four challenges (following the Supreme Court’s re-ordering):
- Ms Begum’s cross-appeal against the Divisional Court’s decision on the deprivation appeal (i.e. her appeal against the rejection of her argument that the appeal should be allowed outright if a FEA was not possible);
- The Secretary of State’s appeal against the Court of Appeal’s finding in the LTE appeal (i.e. that she should be granted LTE because otherwise she could not have a FEA);
- The Secretary of State’s appeal against the Court of Appeal’s decision in the LTE judicial review appeal (i.e. that she should be granted LTE because otherwise she could not have a FEA); and
- The Secretary of State’s appeal against the Court of Appeal’s decision on the Article 2/3 Policy issue (i.e. that SIAC had erred in applying administrative law principles in assessing the legality of the Secretary of State’s decision under the Policy).
The Supreme Court allowed all the Secretary of State’s appeals and dismissed Ms Begum’s cross-appeal. Its detailed reasoning on the issues summarised above is found in §§84-131. It summarised its conclusions at §§132-136 by saying that the Court of Appeal erred in four respects:
- It misunderstood the role of SIAC and the courts on appeal against the Home Secretary’s decision to refuse LTE the UK. Such an appeal was limited to whether the decision was in accordance with s.6 of the Human Rights Act 1998 (“HRA”), an issue which did not arise on the appeal.
- It erred in its approach to the appeal against the dismissal of Ms Begum’s application for judicial review of the Home Secretary’s refusal of LTE. It made its own assessment of national security and preferred it to that of the Home Secretary, despite the absence of evidence before it or any relevant findings of the court below. Its approach did not give the Home Secretary’s assessment the respect it should have received, given her responsibility to Parliament and democratic accountability.
- It mistakenly believed that, in a conflict between the right to a fair hearing and the requirements of national security, the former had to prevail. If a vital public interest – here, the safety of the public – makes it impossible to hear a case fairly, that ordinarily means the courts cannot hear it. The appropriate response in this case was for the appeal to be stayed until Ms Begum could play an effective part without public safety being compromised. That was not a perfect solution, but a perfect solution was not possible.
- It mistakenly treated the Home Secretary’s Article 2/3 Policy as a rule. As a result, it applied to the wrong approach to determining whether she acted lawfully. Administrative law principles applied to that analysis.
The hearing in the Supreme Court took place remotely. It was live-streamed and can be viewed here.
Similarly, the read-out of the summary of the Court’s judgment was live-streamed and can be viewed here.
David Blundell QC was instructed on behalf of the Secretary of State, led by First Treasury Counsel, Sir James Eadie QC, and Jonathan Glasson QC.