person making heart shape with his hand during sunset

Background

In 2015, Shamima Begum was 15 years old when, with two other schoolgirls, she left her east London home to travel to Syria and join Islamic State (ISIL).  

In 2019, the Home Secretary, Sajid Javid, announced his intention to deprive her of her UK citizenship as Ms Begum was “…a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL”, and that “[i]t is assessed that [her] return to the UK would present a risk to the national security of the [UK].”  

An application to enter the UK to appeal that decision was refused.  

Proceedings

Ms Begum appealed to the Special Immigration Appeals Commission (SIAC) who determined, as a preliminary issue, that the Home Secretary had not departed from his own extraterritorial human rights policy (Policy) in making the decision.  

As the SIAC did not give a final determination on the substantive issue, the statutory right of appeal was not open to her. 

Instead, Ms Begum sought a judicial review of the SIAC determination on the preliminary issue. The Division Court found for her on the policy point, but not on the question of “a fair and effective appeal”.  

The Home Secretary appealed to the UK Supreme Court (UKSC) on the first point. Ms Begum cross-appealed on the second point.    

Judgment

The Home Secretary’s appeal was allowed unanimously with the cross-appeal being dismissed.   

The UKSC was critical of the Court of Appeal, identifying four principal errors. 

  • Ms Begum’s appeal of the refusal of leave to enter could only be considered under Section 6 of the Human Rights Act 1998. As she did not advance this argument, the Court of Appeal ought to have dismissed her appeal. 
  • The Court of Appeal was wrong to make its own assessment as to the requirements of “national security” over that of the Home Secretary without any evidence.
  • An individual’s right to have a fair hearing does not trump all other considerations. If a vital public interest makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. Rather, a case could be stayed until an applicant can play an effective part without the safety of the public being compromised. 
  • On the Policy point, the Court of Appeal was wrong to consider it as a rule of law rather than guidance. SIAC can not re-exercise the Home Secretary’s discretion. They can only review the decision under administrative law principles. The Home Secretary had exercised his discretion to decided that depriving Ms Begum of her UK citizenship would not “expose her to a real risk of mistreatment” within the meaning of his Policy. 

Comment

This case was concerned with the strict application of the principles of judicial review rather than the notion of a wee girl being led astray and then being told that she was not allowed to come home to her mammy.

On the former, the UKSC applied the law as it is written. On the latter, this may be more difficult to reconcile. 

To find out how delivering unique, engaging content to your law firm clients can help to transform your bottom line, get in touch.

By Paul Sullivan FRSA

Creating unique, engaging content for your law firm clients