Court:
Court of Appeal (Civil Division)
Date:
16 July 2020
International provisions:
United Nations Declaration of Human Rights, Article 15
Domestic provisions:
British Nationality Act 1981, S. 40A
Special Immigration Appeals Commission Act 1997, s. 2, 2B
Bangladeshi Citizenship Act 1951, s. 5
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.
Issue and resolution:
Fair and effective appeal. The Court held that Ms. Begum must be able to return to the United Kingdom to pursue a fair and effective appeal against the deprivation of her citizenship. 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 judicial review standards to the the Home Secretary’s decision on these issues.
Court reasoning:
The Court accepted the findings of the SIAC that Ms. Begum could not give effective instruction to her lawyers or take any meaningful part in her appeal against the decision to deprive her of her citizenship while she was detained in a camp in Syria. The Court held that this did not mean that her appeal should automatically succeed, but considered ways of making the appeal fair and effective.
The Court rejected the idea that the appeal could continue without Ms. Begum’s participation, finding it “unthinkable” that having concluded that the appeal could not be fair and effective, that an appeal should continue regardless. The Court also rejected the argument that the appeal could be put on hold until Ms. Begum could meaningfully engage, as this measure would leave her right of appeal meaningless for an unlimited period of time and could not address the potential risk of her deportation to Iraq or Bangladesh, where she might be at risk of mistreatment or death.
The Court found that the only way in which Ms. Begum could have a fair and effective appeal was to allow her to return to the United Kingdom. Assessing that the risk to the national security concerns could be addressed and managed if Ms. Begum returned to the United Kingdom, the Court ruled that she must be permitted to return.
Finally, the Court found that the SIAC should have made its decision about whether Ms. Begum faced a risk of violations to her right to life and the prohibition on torture as a consequence of the decision of the Home Secretary, rather than applying judicial review principles. The SIAC had applied this merits based review in making its decision about the deprivation of citizenship, but not in relation to the risk of harm posed to Ms. Begum. The Court ordered the SIAC to consider this issue again.
Notes:
This case was overturned by the Supreme Court in February 2021. Read our summary of the Supreme Court judgment here.
Citation
[2020] EWCA Civ 918
Link to full judgment:
https://www.judiciary.uk/wp-content/uploads/2020/07/WP-Begum-Judgment-NCN.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.