Court:
UK Supreme Court
Date:
26 February 2021
Domestic provisions:
British Nationality Act 1981, s. 40A(2)
Special Immigration Appeals Commission Act 1997
Immigration Act 1971
Immigration Act 2014
Asylum Act 2002
Human Rights Act 1998
Case summary
Background:
Shamima Begum was born in the United Kingdom and was a British citizen by birth. When she was 15, she left the United Kingdom with two friends and travelled to Syria where she married an ISIL fighter and lived in Raqqa, the capital of ISIL’s self-declared caliphate. In February 2019, Ms. Begum sought to return to the United Kingdom, but the Secretary of State for the Home Department (Home Secretary) used his powers to deprive her of her nationality, preventing her return to the United Kingdom with her child.
Ms. Begum appealed against the decision of the Home Secretary to deprive her of her citizenship. The Special Immigration Appeals Commission (SIAC) rejected her appeal finding that, although it was not possible for her to have a fair and effective appeal while she was detained in a Syrian displacement camp, this did not mean that her appeal should be successful or that she should be allowed to return to the United Kingdom to exercise her right of appeal.
Ms. Begum appealed to the Court of Appeal, which ruled that she must be able to return to the United Kingdom to pursue a fair and effective appeal against the deprivation of her citizenship. The Court of Appeal held that the SIAC should have made an independent assessment of the risk of violations of Ms. Begum’s right to life and the prohibition on torture rather than apply judicial review standards to the Home Secretary’s decision on these issues.
Issue and resolution:
Fair and effective appeal. The Court held that Ms. Begum did not have the right to return to the United Kingdom to pursue an appeal against her deprivation of citizenship. There was no requirement that her appeal should succeed as a result of the fact that she could not have a fair hearing on this issue. Ms. Begum’s appeal should have been delayed until she is able to engage with it.
Court reasoning:
First, the Supreme Court held that an appeal against a refusal to grant leave to enter the UK could only be pursued on the grounds that the decision was illegal under the Human Rights Act 1998. This was not argued in Ms. Begum’s case, so the appeal against the refusal to allow her to leave to enter the UK could not be successful.
Second, the Supreme Court found that the Court of Appeal was wrong to make its own assessment of the national security concerns about Ms. Begum returning to the UK, finding that it did so without considering any relevant evidence. The Supreme Court held that the Court of Appeal should have given greater respect to the national security assessment of the Home Secretary.
Third, the Supreme Court also held that the Court of Appeal was wrong to hold that, where the right to a fair hearing was in conflict with national security, the right to a fair hearing must prevail. The Supreme Court found that the appropriate response in this situation was for the appeal to be stayed until Ms. Begum is able to play an effective part in the appeal without the safety of the public being compromised.
Finally, the Supreme Court found that the Court of Appeal was wrong to treat the Home Secretary’s policy regarding the extraterritorial application of human rights as a rule of law that must be obeyed. Instead, the Supreme Court held that the policy was a guide to how the Home Secretary should exercise her discretion.
Citation
[2021] UKSC 7
Link to full judgment:
https://www.supremecourt.uk/cases/docs/uksc-2020-0156-judgment.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.