On 23 and 24 November 2020, the Supreme is hearing the appeals in the proceedings brought by Shamima Begum to challenge the Secretary of State’s decision to deprive her of British citizenship. The case raises significant constitutional issues about the balance to be struck between the protection of procedural rights and the protection of the public from terrorism.
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.
On 7 February 2020, the Special Immigration Appeals Commission (“SIAC”) gave judgment on a number of preliminary issues in her deprivation appeal and on the substance of the LTE appeal; and the Chair of SIAC, Elisabeth Laing J, sat concurrently as a judgment of the High Court to hear the judicial review challenge to the refusal of LTE. SIAC found that:
(1) The Deprivation Decision did not render Ms Begum stateless;
(2) Ms Begum could not have a fair and effective appeal, but the consequence was not that her appeal should succeed, but rather that she should either pursue it in any event, apply for a stay or, in the event that it was struck out for non-compliance, consider applying out of time to reinstate it if her circumstances changed; and
(3) The Deprivation Decision did not place her at Article 2 or 3 ECHR risk.
Ms Begum appealed to the Court of Appeal against the findings on a fair and effective appeal, and Article 2/3 ECHR risk. For procedural reasons, her Court of Appeal proceedings involved a judicial review challenge against the preliminary issues findings (in which the Court sat as a Divisional Court of the High Court) and appeals against the LTE appeal and associated judicial review decision.
The Court of Appeal found that:
(1) While Ms Begum remains detained in the Al Roj camp, she cannot give effective instructions or take any meaningful part in her appeal, and so the appeal cannot be fair and effective: ;
(2) The circumstances in which Ms Begum left the UK and remained in Syria, and whether she did so of her own free will, should be irrelevant to the question of the legal and procedural consequences of SIAC’s conclusion that she cannot have a fair and effective appeal: ;
(3) It does not follow from the conclusion that Ms Begum cannot have a fair and effective appeal that her appeal should be allowed outright: -;
(4) SIAC’s proposals that Ms Begum could continue with her appeal or allow it to be struck out and then appeal later for reinstatement failed to answer the issue of unfairness and lack of effectiveness of the appeal: -;
(5) SIAC’s proposal that Ms Begum could apply to stay her appeal was wrong because, first, it did not address the foreseeable risk of transfer to Iraq or Bangladesh where she could be unlawfully killed or suffer mistreatment, and, secondly, it was wrong in principle to render her appeal meaningless for an unlimited period of time: -;
(6) Although there was no question of prejudging the national security case, the Court considered that, if she returned to the UK, any threat Ms Begum posed to national security could be met by criminal prosecution or the imposition of a Terrorism Prevention and Investigation Measure (“TPIM”): ;
(7) The only way that Ms Begum could have a fair and effective appeal was for her to be permitted to come into the UK to pursue her appeal and so fairness and justice must, on the facts of this case, outweigh the national security concerns: ;
(8) Accordingly, the LTE appeals were allowed;
(9) On the Article 2/3 ECHR issue, SIAC took the wrong approach in applying a judicial review test, and should have determined the question of risk for itself: ;
(10) Accordingly, her judicial review challenge to the preliminary issues finding on Article 2/3 risk and the Secretary of State’s policy succeeded, with the result that this issue would be remitted to SIAC for redetermination on the correct basis: .
The Secretary of State was granted leave to appeal on one ground of appeal by the Court of Appeal; and the Divisional Court granted leapfrog certificates to both the Secretary of State and Ms Begum under section 12 of the Administration of Justice Act 1969. On 7 September 2020, the Supreme Court subsequently granted permission to appeal to both the Secretary of State and Ms Begum on the issues arising under the leapfrog certificate. Accordingly, all grounds are again live before the Supreme Court.
The hearing in the Supreme Court is taking place remotely. It is being live-streamed and can be viewed here.
David Blundell QC is instructed on behalf of the Secretary of State, led by First Treasury Counsel, Sir James Eadie QC, and Jonathan Glasson QC.