In 2021 the Supreme Court considered what should happen when a person challenging the loss of British citizenship cannot participate effectively from abroad and the Home Secretary assesses that their return would threaten national security. The question concerned how Shamima Begum’s appeal could proceed. The Court did not decide the merits of the deprivation appeal.
In February 2019 the Home Secretary made an order depriving Ms Begum of British citizenship under section 40(2) of the British Nationality Act 1981. He considered deprivation conducive to the public good on national security grounds and was satisfied that it would not make her stateless. She appealed to the Special Immigration Appeals Commission (SIAC).
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Ms Begum also sought leave to enter the United Kingdom to pursue her appeal. After that was refused, she brought a human rights appeal and sought judicial review of the refusal. The different routes mattered because they gave the courts different questions to decide.
The earlier decisions
On 7 February 2020 SIAC held that deprivation did not make her stateless, that the Home Secretary had not departed from his extra-territorial human rights policy, and that, although she could not then have an effective appeal, the appeal did not succeed for that reason alone. It dismissed the leave appeal. Elisabeth Laing J gave permission for judicial review of the leave decision but dismissed the claim. Statelessness was not reopened in the Supreme Court.
The Court of Appeal ordered that she be given leave to enter. The Divisional Court, constituted by the same judges, sent a separate question about the Home Secretary’s policy back to SIAC. The Home Secretary appealed and Ms Begum cross-appealed on whether the inability to have an effective appeal meant that the appeal should succeed.
SIAC does not retake the deprivation decision
Lord Reed, with whom Lord Hodge, Lady Black, Lord Lloyd-Jones and Lord Sales agreed, held that the Court of Appeal had misunderstood SIAC’s jurisdiction.
An appeal against refusal of a human rights claim can be brought only on the ground that the refusal is unlawful under section 6 of the Human Rights Act 1998. On that ground SIAC decides for itself whether the decision is lawful. The policy argument was not a Human Rights Act point, so it lay outside that appeal.
The deprivation appeal is different. Section 40(2) permits deprivation only if the Secretary of State is satisfied that it is conducive to the public good. Parliament confided that judgement to the Home Secretary. SIAC cannot substitute its own view or exercise the discretion itself. It may consider whether no reasonable Home Secretary could have acted as he did, whether something relevant was ignored or something irrelevant relied on, whether there was a legal or procedural error, whether the prohibition on making a person stateless was observed, and whether any other applicable legal duty, including the Human Rights Act where it applies, was breached. On a Human Rights Act question SIAC makes its own assessment. On national security, the Home Secretary’s assessment deserves respect because of the executive’s information and advice and because the Home Secretary is accountable to Parliament.
An appeal that cannot yet be heard fairly
SIAC accepted that Ms Begum could not then take a meaningful part in her appeal from Syria. It declined to allow the appeal on that basis alone.
Lord Reed held that this was correct. A right of appeal guards against unfairness, but a decision which cannot for the time being be effectively appealed is not automatically unfair. Parliament did not say what should happen if the right cannot be exercised. Allowing the appeal merely because she cannot present it would be unjust to the Home Secretary and would disregard national security. Where a case cannot fairly be tried, the usual response is to stay it, not to give judgment for the disadvantaged party. A stay until she can take an effective part without compromising public safety was identified as the appropriate response. It is imperfect, because nobody knows how long that may be, but there is no perfect solution. The cross-appeal was dismissed.
Why entry was not the remedy
The Court of Appeal thought that entry was the only way to make the appeal fair, and that fairness outweighed national security. It compared her with another person, U2, and said the risk could be managed by arrest and charge or by a terrorism prevention and investigation measure.
The appeal against refusal of leave to enter was confined to the Human Rights Act ground. The common law argument about procedural fairness belonged in the judicial review. The Court of Appeal also lacked findings or evidence to establish that the security risk could be managed by measures such as arrest and prosecution.
The extra-territorial policy
A separate issue concerned the Home Secretary’s policy on deprivation where a person outside UK jurisdiction might face treatment contrary to articles 2 or 3 of the Convention. He was not satisfied that deprivation would give rise to the relevant risk.
SIAC asked whether he was reasonably entitled to that conclusion on the material before him, and held that he was. The Court of Appeal said SIAC should have assessed the risk for itself. Lord Reed disagreed. The policy guides a discretion; it is not a rule of law and creates no enforceable Convention right. The court decides whether the policy was correctly understood. Whether the Home Secretary was satisfied of the risk is for him, subject to review for unreasonableness, and is judged at the date of his decision. SIAC’s reasoning disclosed no defect.
Verdict: The Supreme Court unanimously allowed the Home Secretary’s appeals and dismissed Ms Begum’s cross-appeal. Her leave-to-enter appeal and both judicial review claims were dismissed. The appropriate course identified for the deprivation appeal was a stay until she could participate effectively without compromising public safety.
