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katy-photoThe circumstances of the government’s decision to deprive Shamima Begum of her citizenship are well known but deeply contested. The Supreme Court will hear the Secretary of State’s appeal next week. It will consider three issues. First, whether Begum should be granted leave to enter the UK in order to pursue her appeal against the deprivation order. Second, whether, if Begum is refused leave to enter, her appeal against the deprivation decision should be allowed. Third, whether the Special Immigration Appeals Commission (“the SIAC”) was wrong to apply judicial review principles to Begum’s appeal against the deprivation decision.

Background

The appeals relate to two decisions of the Secretary of State. The first is the decision to deprive Begum of her British citizenship (“the deprivation decision”). The second is the refusal to grant Begum leave to enter the UK (“the LTE decision”) in order for her participate in her appeal against the deprivation decision.

The relationship between the two decisions is essential for understanding the fairness arguments at the centre of the case. Begum’s primary position was that if she could not have a fair and effective appeal against the deprivation decision, the deprivation appeal had to be allowed. Alternatively, if the deprivation appeal was not allowed, the LTE decision had to be quashed so that Begum could participate in her deprivation appeal from the UK. In short – either the deprivation appeal had to be allowed or she had to be afforded the opportunity to participate in it.

The Court of Appeal

There were two broad issues before the Court of Appeal.[1] The first was whether Begum could have a fair and effective appeal against the deprivation decision, and, if not, what consequences followed (including in respect of the LTE decision). The second was whether the deprivation decision was unlawful because it had the direct and foreseeable consequence of exposing Begum to a real risk of mistreatment contrary to Articles 2 and 3 of the ECHR and/or was contrary to the Secretary of State’s policy on the extra-territorial application of the ECHR in these circumstances.

Fairness

The Court agreed with the SIAC’s finding that “in her current circumstances, [Begum could not] play any meaningful part in her appeal…to that extent, the appeal [would] not be fair and effective.” The Court found that it was not open to the Secretary of State to argue that Ms Begum’s circumstances might be susceptible to immediate change while she remained detained in Syria. The Court rejected the submission that this finding meant the deprivation appeal had to be allowed irrespective of the merits of the case. Given the national security issues, the Court considered such an approach would be wrong in principle and may set a dangerous precedent.

However, the Court also rejected the SIAC’s approach as to the consequences of this finding. The SIAC had held that there were three possibilities open to Begum: to continue with the appeal, to apply for a stay, or to reinstate her appeal (assuming it would, at some point, be struck out) if her circumstances changed at a later date. None of these possibilities dealt with the fairness issue. The Court was therefore left to grapple with the “ultimate conundrum” as to what to do next. It concluded that the only way to secure a fair and effective appeal was to allow the LTE appeals. It was the Court’s “firm conclusion” that “fairness and justice must, on the facts of this case, outweigh the national security concerns”. Although allowing the LTE appeals did not guarantee that Begum would be released, the uncontested evidence was that she would be able to return to the UK.

The policy issue

The Court also held that the SIAC had erred in applying judicial review principles to substantive appeal against the deprivation decision. Appeals against deprivation decisions were “full merits appeal[s]” such that the SIAC was required to decide for itself whether the decision was justified, not whether the Secretary of State’s decision was rational. As the applicable government policy proceeded as if Articles 2 and 3 had extra-territorial effect, there was no reason to depart from the approach employed when those Convention rights were directly applicable. Instead of allowing the appeal on this ground, the Court remitted the issue back to the SIAC. This was to allow it to consider the question of risk afresh on the totality of evidence before it.

Conclusion

The key point of interest in the case is whether deprivation orders can be lawfully made when they cannot be effectively appealed: are there circumstances where national security concerns must always give way to the requirements of natural justice? The political interest in the case has largely stemmed from debate over the extent to which Begum’s choice to leave the UK was a free one, and to what extent that should matter. The Secretary of State has emphasised throughout the proceedings that Begum’s inability to participate in the appeal is of her own doing. This was given short shrift by Flaux LJ, who commented that the circumstances of Begum’s decision to leave the UK would no doubt be considered in a substantive appeal, and such a submission “risk[ed] putting the cart before the horse.”

The appeal is listed for two days.

Katy Sheridan is a trainee at Matrix Chambers

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[1] The decisions were challenged by appeals in the SIAC and by an application for judicial review, which were heard together. The SIAC decided three preliminary issues, all of which were decided against Begum. Laing J granted permission for judicial review but refused the substantive claim. As the SIAC appeal decisions were preliminary, they only route of challenge against them open to Begum was a further judicial review. Permission to judicially review the second and third preliminary issues in the SIAC was granted by Swift J.  Therefore, in relation to the judicial review against the preliminary issues in the SIAC appeals, the Court sat as the Divisional Court. In relation to the appeal against Laing J’s refusal to grant judicial review, the Court sat as the Court of Appeal. For ease, the Divisional Court and Court of Appeal are referred to as the Court of Appeal.