UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

On appeal from: [2020] EWCA Civ 918

For a detailed analysis of the facts and case history, please see the UKSC Blog Case Preview here.

In summary, 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, on the basis that Ms Begum’s return would present a risk to national security.

On 3 May 2019, she made an application for leave to enter the UK, in order to be able to pursue an appeal against the deprivation decision, and to avoid the risk of mistreatment.

On 13 June 2019, the Secretary of State refused that application (“the LTE decision”). The Secretary of State certified that this decision had also been taken partly in reliance on information which, in his opinion, should not be made public in the interests of national security and in the public interest.

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 appealed to the Supreme Court.

The Supreme Court unanimously allowed the Secretary of State’s appeals and dismissed Ms Begum’s cross-appeal. The result is that Ms Begum’s appeal against the LTE decision is dismissed, 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.

Lord Reed identifies 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.

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. 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.

For judgment, please see: Judgment

For press summary, please see: Press summary