In Begum v Special Immigration Appeals Commission (SIAC) [2020] EWCA Civ 918, the Court of Appeal has ordered that Shamima Begum be granted leave to enter the UK so that she can participate in her deprivation of citizenship appeal. The court also ordered the Special Immigration Appeals Commission (SIAC) to reconsider its decision on whether the decision to deprive her of British citizenship was compliant with human rights law.

Background

In February 2019, then Home Secretary Sajid Javid made an order under section 40(2) of the British Nationality Act 1981 depriving Ms Begum of her British citizenship. The allegations against her are well known and I won’t go over them again. For those in need of a refresher, the court sets out the facts in paragraphs 7-11 of its judgment.

Ms Begum appealed against that order and also applied for leave to enter the UK outside of the Immigration Rules to enable her to fight her appeal. Her application for leave to enter was refused; she appealed that too. Both the deprivation order appeal and the leave to enter appeal were rolled together, and her case has been working its way through the courts since.

In February 2020, SIAC issued three preliminary findings:

1. The deprivation order did not make Ms Begum stateless because she is a Bangladeshi citizen.
2. The deprivation order did not breach government policy on breaches of human rights overseas.
3. It did not matter that Ms Begum could not have an effective or fair appeal in her current circumstances.

A right of appeal only arises upon a final determination by SIAC, and so these preliminary findings could only be challenged by judicial review. Permission to apply for judicial review was granted on issues 2 and 3 above. Permission to appeal against the refusal of leave to enter was also granted.

Crucially, Ms Begum did not challenge the finding on statelessness, so SIAC’s finding that she is a Bangladeshi citizen stands unchallenged and could prove critical in her subsequent litigation.

Fair and effective appeal

In its February 2020 decision, SIAC had unambiguously concluded that:

… in her current circumstances, [Ms Begum] cannot play any meaningful part in her appeal, and that, to that extent, the appeal will not be fair and effective.

It nevertheless found against her. Much of the Court of Appeal’s analysis, beginning at paragraph 92, is devoted to grappling with this issue and its consequences for Begum’s appeal.

Lord Justice Flaux shot down the government’s argument that any unfairness was simply a product of Ms Begum’s own actions:

the circumstances in which Ms Begum left the UK and remained in Syria and whether she did so of her own free will should be irrelevant to the question of the legal and procedural consequences of SIAC’s conclusion that she cannot have a fair and effective appeal. Furthermore, I would be uneasy taking a course which, in effect, involved deciding that Ms Begum had left the UK as a 15 year old schoolgirl of her own free will in circumstances where one of the principal reasons why she cannot have a fair and effective appeal is her inability to give proper instructions or provide evidence. One of the topics that could be explored on her appeal before SIAC is precisely what were the circumstances in which she left the UK in 2015, but that could only properly be determined after a fair and effective appeal. The Secretary of State’s submission risks putting the cart before the horse. [Emphasis added.]

But the court was also critical of Ms Begum’s submission that her appeal against the deprivation order should be allowed simply because it was impossible for her to play a meaningful part in it.

This led the Court to consider alternative courses of action — including granting Ms Begum leave to enter the UK to enable her to participate meaningfully in her appeal. In considering this option, Flaux LJ referred to the 2017 case of R (W2 and IA) v Secretary of State for the Home Department [2017] EWCA Civ 2146 which I covered a couple of years ago.

Other options for addressing unfairness rejected

Flaux LJ quickly dismissed the possibility of Begum’s appeal simply continuing with Begum outside the UK:

it is unthinkable that, having concluded that Ms Begum could not take any meaningful part in her appeal so that it could not be fair and effective, she should have to continue with her appeal nonetheless.

He also rejected the idea of staying her appeal until she was in a position to engage with it meaningfully in the future. As well as this doing nothing to ameliorate the risks to her in the immediate term, Flaux LJ held

it seems to me that simply to stay her appeal indefinitely is wrong in principle. It would in effect render her appeal against an executive decision to deprive her of her British nationality meaningless for an unlimited period of time.

Order for return to the UK to take part in appeal

Despite the “blandishments” of Sir James Eadie QC, representing the government, Flaux LJ ultimately held that

the only way in which there can be a fair and effective appeal is to allow the appeals in respect of the refusal of [leave to enter].

Acknowledging potential security concerns, he proposed that they be managed inside the UK:

If the Security Service and the Director of Public Prosecutions consider that the evidence and public interest tests for a prosecution for terrorist offences are met, she could be arrested and charged upon her arrival in the United Kingdom and remanded in custody pending trial. If that were not feasible, she could be made the subject of a TPIM.

A TPIM is a legal order that the Home Secretary can put in place for people considered a security risk but “whom it is feasible neither to prosecute nor to deport”. It places legal restrictions on where they can go and what they can do. Those subject to a TPIM can be ordered to observe a curfew or wear an electronic tag, for example.

The crucial concluding paragraphs of the judgment are 121 and 122:

Notwithstanding the national security concerns about Ms Begum, I have reached the firm conclusion 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, on the facts of this case, outweigh the national security concerns, so that the LTE appeals should be allowed…

In all the circumstances, although I would refuse Ms Begum’s challenge to SIAC’s decision that, it did not follow that because she could not have a fair and effective appeal, her appeal should be allowed, I consider that fairness requires that we allow her LTE appeals against the decisions of SIAC and the Administrative Court.

Human rights consideration

Importantly, the Court of Appeal also allowed Ms Begum’s judicial review of the decision of SIAC on the human rights issue. Despite her team’s persuasive argument that there was already sufficient evidence of a real risk of Article 3 mistreatment — whether from a potential transfer to Bangladesh, a transfer to Iraq or her not coming out of the camp at all — Flaux LJ decided that SIAC was better placed to hear all of the evidence and make its own decision:

This is for two reasons. First, the normal course when a claim for judicial review succeeds is to remit the matter to the relevant decision-making body to reconsider its decision in accordance with the judgment of the reviewing court. Secondly, SIAC is better placed than this Court to make findings of fact, particularly in the field of national security. It has well-developed procedures for dealing with such matters, including the availability of cross-examination of witnesses and the holding of CLOSED hearings.

Ms Begum’s case should now go back to SIAC for full consideration of the merits of her appeal on human rights grounds — presumably with her present.

What next?

Prospects of return to the UK

For Begum to be granted leave to enter the UK, she will need a passport or travel document. She has neither at this time. The court appears to have proceeded on the basis that Ms Begum would be able to obtain a Uniform Format Form (UFF) travel document from the Kurdish authorities. Whether this is actually going to be feasible in practice remains to be seen.

Unsurprisingly, the Home Office is already planning its application for permission to appeal to the UK Supreme Court. It is not yet clear on what grounds.

The Home Secretary has 28 days to make this application to the Court of Appeal. If unsuccessful, she can make a further application directly to the Supreme Court.

As long as these applications for permission to appeal continue, there will be no grant of leave to enter the UK for Ms Begum. It will likely be a long time before we find out whether or not she will be permitted to return to the UK to participate in her appeal.

Prospects of getting to stay once back

But let’s assume this decision is upheld and she manages to return to the UK. What then?

As I’ve said, Ms Begum isn’t challenging the finding that she has Bangladeshi citizenship. That leaves her without a statelessness argument when it comes to citizenship deprivation. To keep her British citizenship, she would have to persuade SIAC that she is not a national security risk, or that the human rights arguments mentioned above are made out.

But even if Ms Begum were to lose her British citizenship in the end, it would be nigh on impossible to remove her from the UK once she is back here. She will be unreturnable to Bangladesh or Syria. The Bangladeshi authorities have said that “there is no question of her being allowed to enter into Bangladesh”, and there would be no legal basis at all for sending her to Syria.