United Kingdom Supreme Court: Lord Reed, President, Lord Hodge, Lord Black, Lord Lloyd Jones and Lord Sales allowed the appeals and dismissed Ms Begum’s cross-appeal.
Facts
The facts of the case are such that Ms Begum was born and brought up in the UK, and was a British citizen at birth. When she was 15 years old, she travelled to Syria with two friends. Shortly after she arrived, she married an ISIL fighter. Ms Begum has remained in Syria since 2015 and has aligned with ISIL. She is currently detained in the Al-Roj camp run by the Syrian Democratic Forces, where conditions are poor. Ms Begum now wishes to return to the UK. On 19 February 2019, the Secretary of State for the Home Department decided to deprive Ms Begum of her British citizenship [deprivation decision]on the basis that Ms Begum’s return would present a risk to national security. Ms Begum sought leave to enter the UK so that she could pursue an appeal against this decision, but her application for leave to enter was refused [LTE decision]. Ms Begum challenges both the decision to deprive her of citizenship and the decision to refuse her leave to enter the UK. The Special Immigration Appeals Commission found that, while Ms Begum remains detained by the Syrian Democratic Forces in a camp, she cannot give effective instructions or take any meaningful part in her appeal. This means that her appeal cannot be fair and effective. The Court of Appeal, therefore, held that Ms Begum should be granted leave to enter the UK so that she could pursue her appeal. The Secretary of State appeals to the Supreme Court in three different set of proceedings.
Proceedings Part I
Ms Begum’s appealed to the Special Immigration Appeals Commission (“SIAC”) against the deprivation decision. SIAC determined that the Secretary of State did not depart from his extraterritorial human rights policy (policy issue) when he made the deprivation decision and that, although Ms Begum could not have an effective appeal (fair and effective issue) against that decision in her current circumstances, it did not follow that her appeal should succeed. Her appeal against the deprivation decision not having been finally determined, Ms Begum did not have a statutory right of appeal to the Court of Appeal. Instead, she challenged SIAC’s determination of the policy and fair and effective appeal issues by means of an application for judicial review. On that application, the Divisional Court found it in Ms Begum’s favour on the policy issue, but not the fair and effective appeal issue. The Secretary of State appeals to the Supreme Court on the basis that the Divisional Court was wrong to conclude that SIAC had erred in determining the policy issue by applying principles of administrative law. Ms Begum cross-appeals on the basis that the Divisional Court was wrong to reject her argument that her appeal against the deprivation decision should automatically be allowed if it could not be fairly and effectively pursued as a consequence of the refusal of her application for leave to enter the UK.
Proceedings Part II
The second set of proceedings relate to the LTE decision. Ms Begum had a statutory right of appeal against that decision only so far as she claimed that the decision was unlawful under the Human Rights Act 1998. She made such an appeal, but it was refused by SIAC at first instance. Ms Begum then successfully appealed to the Court of Appeal. The Secretary of State appeals to the Supreme Court, on the ground that the Court of Appeal was wrong to conclude that leave to enter must be granted to Ms Begum because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision.
Proceedings Part III
The third set of proceedings concern the LTE decision, other than in respect of its compliance with the Human Rights Act 1998. Not having a statutory right of appeal to SIAC in that respect, Ms Begum sought to challenge the LTE decision by means of an application for judicial review. Her application was dismissed by the Administrative Court but then granted by the Court of Appeal. The Secretary of State appeals to the Supreme Court. The issue arising in that appeal is, again, whether the Court of Appeal was wrong to conclude that leave to enter must be granted to Ms Begum because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision.
Observations
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. Ms Begum’s appeal against the LTE decision could only be brought on the ground that the decision was unlawful under section 6 of the Human Rights Act. As Ms Begum did not advance that argument before the Court of Appeal, her appeal against the LTE decision should have been dismissed.
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.It made its own assessment of the requirements of national security, and preferred it to that of the Secretary of State, despite the absence of any relevant evidence before it, or any relevant findings of fact by the court below In particular, there was no evidence before the Court as to whether the national security concerns about Ms Begum could be addressed and managed by her being arrested and charged upon her arrival in the UK, or by her being made the subject of a Terrorist Prevention and Investigation Measure The Court of Appeal’s approach did not give the Secretary of State’s assessment the respect which it should have received, given that it is the Secretary of State who has been charged by Parliament with responsibility for making such assessments, and who is democratically accountable to Parliament for the discharge of that responsibility .
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. If a vital public interest makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it The appropriate response to the problem in the present case is for the deprivation appeal to be stayed until Ms Begum is in a position to play an effective part in it without the safety of the public being compromised That is not a perfect solution, as it is not known how long it may be before that is possible. But there is no perfect solution to a dilemma of the present kind. In those circumstances, Ms Begum’s application for judicial review of the LTE decision was properly dismissed by the Administrative Court, as should be her cross-appeal in respect of SIAC’s preliminary decision in the deprivation appeal.
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. On a deprivation appeal, SIAC is not entitled to re-exercise the Secretary of State’s discretion for itself. Rather, unless there is an issue as to whether the Secretary of State has acted in breach of his obligations under has the Human Rights Act, SIAC is confined to reviewing the Secretary of State’s decision by applying essentially the same principles that apply in administrative law. In this case, having considered detailed assessments by his officials and by the Security Service, the Secretary of State was not satisfied that depriving Ms Begum of British citizenship would expose her to a real risk of mistreatment within the meaning of his policy. SIAC decided that that conclusion was not an unreasonable one. There was no defect in SIAC’s reasoning in that regard. Ms Begum’s application for judicial review of SIAC’s preliminary decision in the deprivation appeal is therefore dismissed
Judgment
The Supreme Court dismissed Ms Begum’s appeal against the LTE decision, her application for judicial review of the LTE decision is dismissed, and her application for judicial review of SIAC’s preliminary determination in her appeal against the deprivation decision is dismissed.[R v. Special Immigration Appeals Commission, [2021] 2 WLR 556, decided on 26-02-2021]
Arunima Bose, Editorial Assistant has reported this brief.