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Shamima Begum: SSHD strikes back in Supreme Court

Written by
Asad Ali Khan
Date of Publication:
07 March 2021

R (Begum) v Special Immigration Appeals Commission & Anor [2021] UKSC 7 (26 February 2021)

Ms Shamima Begum was born and raised in the UK. She was a British citizen at birth and at age 15 she travelled to Syria with two friends and soon afterwards she married an ISIS fighter and is currently detained in poor conditions in the Al-Roj camp run by the Syrian Democratic Forces. She now wishes to return home to the UK to have a fair and effective appeal. She was deprived of her British citizenship on 19 February 2019 because the SSHD believed that her return would present a risk to national security. She applied for leave to enter (LTE) the UK so that she could pursue an appeal against the deprivation decision. The Court of Appeal unanimously held that the only way Ms Begum, can have a fair and effective appeal is to be permitted to come into the UK to pursue her appeal. King, Flaux and Singh LJJ found that fairness and justice must – on the facts of her case – outweigh any national security concerns. But in a twist of fate, the Supreme Court unanimously held in favour of the SSHD and found that the right to a fair hearing does not trump everything else, such as the public's safety. The court took the view that if a vital public interest makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. Therefore, her deprivation appeal should be stayed until she can play an effective part in it without compromising the public's safety.

As it is not known how long it may be before that is possible, this is not an ideal solution. However, it was the view of the Supreme Court there is no perfect solution to a dilemma of the present kind. Ms Begum held British citizenship at birth under section 1(1) of the British Nationality Act 1981 as her parents were both settled in the UK. SIAC found she also holds Bangladeshi citizenship by descent through her parents by virtue of section 5 of the Bangladesh Citizenship Act 1951. Ms Begum had challenged the LTE decision by an appeal against that refusal insofar as the decision determined a "human rights claim" and by judicial review proceedings challenging the decision on common law grounds. The Court of Appeal considered Ms Begum's judicial review claim succeeded against SIAC's decision on article 2 and article 3 of the ECHR. She was deprived of her British citizenship, pursuant to section 40(2) of the 1981 Act, on grounds of conduciveness to the public good. The Supreme Court unanimously allowed the SSHD's appeals and dismissed Ms Begum's complaints. Lord Reed (President) gave the sole judgment, with which Lord Hodge, Lady Black, Lord Lloyd-Jones and Lord Sales agreed and her LTE appeal was dismissed, her application for judicial review of the LTE decision was dismissed, and her application for judicial review of SIAC's preliminary decision in the deprivation appeal was dismissed. Liberty, Justice and the UN Special Rapporteur on Counter-Terrorism intervened in these proceedings.

Background

The following questions arose in these proceedings (i) should Ms Begum be granted leave to enter the UK so that she can pursue her appeal against the SSHD's decision to deprive her of British citizenship?, (ii) was SIAC wrong to apply judicial review principles to her appeal against the deprivation decision? and (iii) if Ms Begum is refused leave to enter the UK, should her appeal against the deprivation decision be allowed?

Appeals in three separate sets of proceedings brought by Ms Begum entered the Supreme Court. The first set of proceedings arose from her appeal to SIAC against the deprivation decision. As preliminary issues in that appeal, SIAC determined that the SSHD did not depart from her extraterritorial human rights policy when the deprivation decision was made (the policy issue) and that, although she could not have an effective appeal against that decision in her current circumstances, it did not follow that her appeal should succeed (the fair and effective appeal issue).

The second set of proceedings were linked to the LTE decision. She 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. She then successfully appealed to the Court of Appeal. However, the SSHD appealed to the Supreme Court, on the ground that it was wrong to conclude that leave to enter must be granted because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision.

In the third set of proceedings, Ms Begum 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 in her favour only on the policy issue. The SSHD appealed to the Supreme Court on the basis that the Divisional Court wrongly concluded that SIAC erred in deciding the policy issue by applying administrative law principles. Ms Begum cross-appealed on the basis that the Divisional Court had been 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 because of the refusal of her application for leave to enter the UK. Ms Begum and her legal team cannot see the evidence against her in SIAC. Only a court-appointed Special Advocate can see the evidence but cannot tell her or her legal team.

The Supreme Court

As to her cross-appeal against the Divisional Court's decision (the Court of Appeal also sat as a Divisional Court as Ms Begum's challenge to SIAC's determination on the preliminary issues could only be by way of judicial review in the absence of a final determination of the deprivation appeal) in relation to the deprivation appeal, the Supreme Court took the view that the fact that the appeal process gave protection against unfairness did not mean that a decision which could not be the subject of an effective appeal was unfair. Parliament had not stipulated what an appellate tribunal should do if a person's circumstances were such that they could not effectively exercise their right of appeal. Lord Reed stressed that:

94. The nature and consequences of the decision in question in the deprivation appeal do not point towards a different conclusion. It is, of course, true that a deprivation decision may have serious consequences for the person in question: although she cannot be rendered stateless, the loss of her British citizenship may nevertheless have a profound effect upon her life, especially where her alternative nationality is one with which she has little real connection. But the setting aside of the decision may also have serious consequences for the public interest. In such a case, it would be irresponsible for the court to allow the appeal without any regard to the interests of national security which prompted the decision in question, and it is difficult to conceive that the law would require it to do so.

Overall, Lord Reed found four principal errors in the Court of Appeal's judgment.

First of all, the Court of Appeal misunderstood the scope of an appeal against a decision to refuse a person leave to enter the UK. The scope of an appeal in such cases is confined to the question whether the decision is in accordance with section 6 of the Human Rights Act 1998. That question did not arise in this appeal. Second, and crucially, by conducting its own assessment of the requirements of national security, and preferring it to that of the SSHD, despite the absence of any relevant evidence before it, the Court of Appeal erred in its approach to the appeal against the dismissal of Ms Begum's application for judicial review of the SSHD's refusal of leave to enter the UK. Flaux J's approach failed to accord the SSHD's assessment the respect which it should have received, given that the SSHD is responsible to Parliament for making such assessments, and is democratically accountable to Parliament for the discharge of that responsibility.

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, that person's right to a fair hearing must prevail. For Lord Reed and his fellow justices, if a vital public interest – the safety of the public in the present case – makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. Staying proceedings until Ms Begum is in a position to play an effective part, without the safety of the public being compromised, is the appropriate course and there is no other perfect solution. Lord Reed said:

135. … if a vital public interest – in this case, the safety of the public – 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 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.

Fourthly, the Court of Appeal mistakenly treated the SSHD's policy, intended for his own guidance in the exercise of the discretion conferred on him by Parliament, as if it were a rule of law which he must obey. As a result, it applied the wrong approach to considering whether the SSHD had acted lawfully. On a deprivation appeal, SIAC is not entitled to re-exercise the SSHD's discretion for itself. Rather, unless there is an issue as to whether the SSHD has acted in breach of his obligations under the 1998 Act, SIAC's role is confined to reviewing the SSHD'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 SSHD 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 was therefore dismissed.

As to the policy issue, the question was whether the Divisional Court had been wrong to conclude that SIAC had erred in determining the policy issue by applying principles of administrative law. The Court of Appeal had mistakenly approached that issue as if the principles relevant to the SSHD's application of his policy were indistinguishable from those relevant to his duties under the 1998 Act. There were important differences between the legal principles applicable to a statutory duty and those applicable to an administrative policy. Where the SSHD had indicated his intention to follow a practice or policy, that did not give rise to an enforceable legal right and instead, its legal effect was to be found in administrative law principles. The adoption of general principles or policies to guide the exercise of discretion did not alter the discretionary nature of the decision or convert the practice into a rule of law. This approach was consistent with the views of Lord Clyde in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, para 143 and Lord Browne-Wilkinson in R v SSHD, Ex p Venables [1998] AC 407, 496-497.

Ms Begum's appeal against the LTE decision could only be advanced on the ground that it was unlawful under section 6 of the Human Rights Act 1998. Since Ms Begum did not advance that argument before the Court of Appeal, her appeal against the LTE decision should have been dismissed. Lord Reed found it necessary to make a number of critical observations about paragraphs 119-121 of Flaux LJ's judgment where he had drawn some parallels with U2 v SSHD [2019] UKSIAC SC_130_2016 and said that the assessment of the risk posed by Ms Begum would appear to be at a lower level of seriousness than in the case of U2, that, given the difference in level of seriousness between U2 and Ms Begum, the national security concerns about her could be addressed and managed if she returns to the UK and that given that the only way in which she can have a fair and effective appeal is to be permitted to come into the UK to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns, so that the LTE appeals should be allowed. Lord Reed did not agree with these points and he explained:

107. … First, there was no basis for allowing the LTE appeal. As has been explained, the only ground on which such an appeal could be brought was that the LTE decision was unlawful under section 6 of the Human Rights Act. No such ground was argued before the Court of Appeal: counsel for Ms Begum put her case solely on the basis of common law principles. The only context in which those arguments could properly be considered was in her appeal against the dismissal of her application for judicial review of the LTE decision. Her counsel pointed this out to the Court of Appeal, stating in their skeleton argument that "[g]iven that [Ms Begum] puts her case on the basis of common law principles, she submits that it would be more appropriate for the court to allow her appeal from [Elisabeth] Laing J's refusal of her judicial review of the LTE decision".

The point was reiterated when the draft judgment was circulated. Second, it was also the view of Lord Reed that the comparison of the level of risk to national security posed by Ms Begum with the risk posed by U2 was "misguided" and the Court of Appeal was in no position either factually or jurisdictionally to undertake such a comparison because there had been no hearing by SIAC or by the Administrative Court of the substantive national security case against Ms Begum.

Moreover, the comparison between Ms Begum and U2 could not in any event support the conclusion which the Court of Appeal drew from it, i.e. given the difference in level of seriousness between U2 and Ms Begum, the national security concerns about her could be addressed and managed if she returns to the UK. The fact that U2 could not be managed safely within the UK did not entail that anyone posing a lesser risk could be so managed and Lord Reed observed that in U2's case SIAC concluded that deprivation of nationality, which ensured that a person could never come to the UK without first obtaining entry clearance, was the most effective way to manage the risk which a person posed, and that lesser measures would not be as effective. SIAC said that it was "obvious that no amount of conditions, or careful watching of a person who is in the United Kingdom, can achieve the assurance of knowing that they are outside the UK permanently" and that observation was not confined to the individual known as U2, or to people presenting identical levels of risk to that person.

Thirdly, there was no foundation for Flaux LJ's finding that the national security case in relation to Ms Begum could be addressed and managed by arresting and charging her upon her arrival in the UK, or by her being made the subject of a TPIM and as to arresting and charging her, there was no evidence before the court from the police, the CPS or the DPP as to whether it was possible or appropriate to ensure that Ms Begum was arrested on her return and charged with an offence. Overall those were not matters for the executive to decide. It was unknown whether, if she were arrested/charged, she would be remanded in custody: that would be a matter for the courts. As to the TPIM, there was no evidence, nor any submissions, before the Court of Appeal as to whether or not a TPIM could or would be imposed on Ms Begum, or as to the effectiveness of any such measure in addressing the risk which she might pose. The Court of Appeal also appeared to have overlooked the limitations to its competence, both institutional and constitutional, to decide questions of national security, as established in SSHD v Rehman [2001] UKHL 47, A v SSHD [2004] UKHL 56 and R (Lord Carlile) v SSHD [2014] UKSC 60. In Rehman it was the view of the House of Lords (Lord Hoffmann) that the importance of democratic accountability for decisions on matters of national security constituted a further reason for SIAC to respect the SSHD's assessment. As Lord Hoffmann put it:

62. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.

In the present context, the Supreme Court explained that:

110. … the proposition that "given that the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must … outweigh the national security concerns" appears to have been based on the view that the right to an effective appeal is a trump card.

That was the wrong view and the Court of Appeal was jumping to conclusions as even in the deprivation appeal, the national security case had not yet been considered. And it was not the Court of Appeal's function to make an evaluative judgment on the particular facts on an appeal in proceedings in which the SSHD's decision had not yet been challenged on that basis. Lord Reed added that even if the issue had properly been before it, it would have been confined to reviewing the reasonableness of the SSHD's assessment, keeping in mind the limitations of the judicial role explained in the Rehman line of cases. Therefore, Lord Reed allowed the SSHD's appeal against the Court of Appeal's decision in the LTE appeal. The courts cannot substitute their assessment for the SSHD's assessment but SIAC will determine whether the deprivation order would make Ms Begum stateless, determine whether the SSHD acted reasonably, assess whether the SSHD erred in law, and make an assessment as to whether the SSHD upheld his obligations under the Human Rights Act 1998 which is not exclusively the executive's domain.

Comment

The Supreme Court's decision has received widespread condemnation. For example, Maya Foa, the director of the human rights charity Reprieve, who has personally visited the Al-Roj twice, argued that reducing Shamima Begum to a caricature made it much easier to deprive her of her citizenship and rights. She says that camps like Al-Roj and al-Hol, in north-east Syria, "are fast resembling Guantánamo Bay: prisons where people can be forgotten about and kept at arm's reach from the law." The sad reality for the prisoners of these makeshift camps is that "when they collapse the prisoners face transfer to Iraq or a part of Syria controlled by Bashar al-Assad, where they would face disappearance or the death penalty." Lord Reed and his colleagues seem to have conveniently overlooked the fact that they may have given Ms Begum the death penalty. Further, Ms Begum is also a victim of trafficking. However, the decision letters received by the 20 British adults who are known to be in these camps and have been stripped of their citizenship are set out in identical terms and demonstrate that the UK government has not engaged with individual circumstances or actions of those involved. The UK is also said to have ditched its "moral and legal obligation to Shamima Begum" and Keenan Malik lamented that as a country it has sacrificed its "moral obligations on the altar of political expediency." Given that the US has repatriated its nationals in the camps, and the Biden administration thinks that it is "simply the right thing to do", Maya Foa said "when it comes to British detainees in Syria, the only viable option is to bring our nationals home and ensure they are given due process."

But the present SSHD Priti Patel and Sajid Javid, who as SSHD had stripped Ms Begum of her British citizenship, were delighted that the government was able to strike back in the Supreme Court and finish off Ms Begum's prospects of returning to the UK to pursue her case. The Supreme Court is being accused of appeasing the government and its judgment is being called "dog-whistle law" as it sets up a second class of citizenship.

Boris Johnson, who the Supreme Court decided was a liar in the celebrated decision in R (Miller) v The Prime Minister [2019] UKSC 41, discussed here, was reportedly "pleased" by the court's decision against Ms Begum. It is hard to like Ms Begum but as the ex-police chief Mr Dal Babu said, the authorities "were aware" that she was being groomed but did not share that information with her family and failed miserably in their duty to stop her from leaving the UK to become an ISIS bride in the first place. Ms Begum has declined to comment on the Supreme Court's judgment but she has ditched her Islamic garb and was seen wearing sunglasses, a jacket, t-shirt and leggings while being filmed at Al-Roj camp and her legal battle to come home will no doubt continue. These are immensely complex proceedings and, as pointed out by Alison Harvey, if the Court of Appeal and all the great lawyers got things wrong then "the idea that anyone, deprived of their citizenship and unable to return to the UK to challenge this, could navigate such complexity is fanciful."