Tuesday, 2 March 2021

Shamima Begum loses in the Supreme Court

R (Shamima Begum) v Secretary of State for the Home Department - [2021] UKSC 7 - (26 February 2021). 

National security - constitutional arrangements:

The judgment of the Supreme Court in Shamima Begum's case reminds us (again) of the fact that national security within the UK is very much entrusted to the executive - see the court's judgment at para 56 where Lord Reed cites the speech of Lord Hoffmann in Secretary of State for the Home Department v Rehman [2001] UKHL 47 at para 50.

Lord Hoffmann said - "Under the  constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial discretion. They are entrusted to the executive." 

Within government,

the Prime Minister and the Home Secretary are at the apex of the UK's national security arrangements. 

The Security Service operates under the authority of the Home Secretary- Security Service Act 1989 section 1

Further, the Home Secretary is empowered by Parliament to make decisions of crucial importance to individuals including decisions relating to citizenship and who may enter the UK. The Home Secretary is advised by officials and by the security service but, constitutionally, it is the Home Secretary who is accountable to Parliament for decisions. Ultimately, the government has to answer to the electorate at general elections.

In practice, the executive has acquired the ability to control much of the business of parliament with the result that the role of Parliament in the scrutiny of executive action is not as strong as it could be. This is not to say that Parliament is ineffective as evidenced by the work of the Intelligence and Security Committee and other committees. 

As for general elections, they do not necessarily return a House of Commons for which the majority of voters have actually voted! In any event, the outcome of a general election rarely (if ever) turns on the actions of the government toward a particular individual such as Ms Begum.

The judicial role:

In relation to national security, the courts do not have a central role but the judicial role is nonetheless important. 

The process of judicial review developed at common law and exists to keep official decision-makers (including Ministers) within the law but this process does not replace the decision-maker by a judge. 

Then there are appeals from the decision of Ministers to the courts. Such appeals are possible because Parliament has legislated for them. An important question is what a court may do when deciding an appeal from a Ministerial decision. Can the court make any decision that the Minister could have made or is the role of the court more limited? The answer depends largely on the Act of Parliament creating the right to appeal but, if the Act is silent on the matter, it will be for the judges to decide what to do. 

All of this is background to the Supreme Court's judgment in Shamima Begum's case. The Supreme Court's decision was unanimous with a single judgment extending to 47 pages of not particularly easy reading. 

A lot of the judgment is concerned with explaining the roles of the various courts with involvement in Ms Begum's case and also with a detailed analysis of the different approaches which developed in recent years regarding the handling by the courts of appeals from decisions of the Home Secretary.  

Much of the focus in the judgment is on the role of the Special Immigration Appeals Commission (SIAC) which was created by the Special Immigration Appeals Commission Act 1997 . The Act has been extensively amended with an impact on the powers of SIAC when deciding appeals.

Ms Begum:

Home Secretary's decisions:

As is well known, Ms Begum aligned herself with ISIL albeit she did so as a 15 year old. On 19 February 2019, the Home Secretary (then Sajid Javid) made an order depriving Ms Begum of her British citizenship. The order was made under the British Nationality Act 1981 section 40(2) - "The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good."

Section 40(4) provides that - "The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless."  Mr Javid was satisfied that making the order would not make Ms Begum stateless.

In May 2019, Ms Begum applied for leave to enter the UK - see Immigration Act 1971 section 3. Leave to enter may be given under the Immigration Rules but there is also a process for applications outside the Immigration Rules. Essentially, this is asking the Home Secretary to exercise a residual discretion to permit entry. The process is explained by Free Movement - HERE. Mr Begum's application for leave to enter was outside the Immigration Rules. It was refused by Mr Javid on 13 June 2019.

Mr Javid gave reasons for refusing leave to enter. (a) Ms Begum had failed to comply with a requirement to provide fingerprints and a photograph of her face, and (b) the European Convention on Human Rights either had no application to her or, if it did apply, there was no evidence that refusal of leave to enter would breach her convention rights.

Appeal and judicial review:

Ms Begum appealed to SIAC against the order depriving her of citizenship. 

Regarding Mr Javid's leave to enter decision, Ms Begum both appealed to SIAC and, in relation to certain aspects of the decision, applied for judicial review in the Administrative Court (part of the High Court). See the judgments:

Shamima Begum (Preliminary Issue : Substansive) [2020] UKSIAC SC_163_2019, . Here it is to be noted that SIAC decided that the Home Secretary had not made Ms Begum stateless.

The application for judicial review on the human rights aspects was also dismissed - [2020] EWHC 74 (Admin).  

Further appeals:

The next step was that Ms Begum decided to appeal those decisions other than the question of whether the Home Secretary's decision had made her stateless.

An appeal against SIAC's decisions was to the Court of Appeal (Civil Division). An appeal against the judicial review decision was to the Divisional Court (an appellate aspect of the High Court's jurisdiction). In the event, three judges formed a combined Court of Appeal / Divisional Court and heard all the appeals together. Judgment was given on 16 July 2020 - [2020] EWCA Civ 918 - King, Flaux and Singh LJJ.  

Ms Begum's appeals were successful apart from one issue - whether the appeal should automatically be allowed if she could not enter the UK.

Supreme Court:

Further appeals by both Ms Begum and the Home Secretary then followed to the Supreme Court which unanimously dismissed Ms Begum's appeals and allowed those of the Home Secretary - R (Shamima Begum) v Secretary of State for the Home Department - [2021] UKSC 7 - (26 February 2021).

The Supreme Court's judgment commences with three important court orders shown in red. It is clear from the third of the orders that the government took some steps to facilitate Ms Begum's involvement in the deprivation appeal but the details are confidential and may not be disclosed.

The Supreme Court held that the Court of Appeal had erred in four respects.

1. It misunderstood the role of SIAC and the courts on an appeal against the Home Secretary's decision to refuse a person entry to the UK. The scope of an appeal in such cases was confined to the question of whether the decision was in accordance with section 6 of the Human Rights Act 1998.

2. The Court of Appeal also erred in its approach to the appeal against the dismissal of Ms Begum;s application for judicial review of the leave to enter decision. It made its own assessment of the requirements of national security and preferred it to that of the Home Secretary, despite the  absence of any relevant evidence before it, or any relevant findings of fact by the court below.  It is the Home Secretary who is charged by Parliament with responsibility for making such assessments and he is democratically accountable to Parliament.

3. 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, the right to a fair hearing must prevail. Noting that there was "no perfect solution to a dilemma of the present kind" the Supreme Court stated that the appropriate response was 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.

4. The Court of Appeal mistakenly treated the Home Secretary's policy, intended for his own guidance, as if were a rule of law which he must obey. As a result, it applied the wrong approach to considering whether the Home Secretary had acted lawfully.

The Supreme Court's judgment does not make appeals / judicial review pointless exercises in this area but certainly places limitations on what may be achieved. 

SIAC may determine whether the Secretary of State has acted in a way which no reasonable Secretary of State could have acted, or has taken into account some irrelevant matter, or has disregaded something to which he should have given weight. 

The courts may also determine whether the Home Secretary erred in law.

The courts may also determine compliance with section 40(4) of the British Nationality Act 1981 (the question of whether a decision has made an individual stateless).

The court may also determine whether the Secretary of State has acted in breach of an other legal principles applicable to the decision, such as the obligation arising under section 6 of the Human Rights Act 1998.

A difficult and controversial area:

National security questions have long been a difficult area and one where the courts have traditionally been wary of entering as evidenced by cases decided as long ago as Liversidge v Anderson  [1942] AC 206.

Mr Javid was faced by his officials with security service information about Ms Begum - a young woman who, with others, went abroad. She married an ISIL fighter and had lived within the ISIL culture for some four years. 

All too often we have seen the impact of terrorism within the UK - for example, Salman and Hasheem Abedi and the Manchester Arena bombing - previous post 21 August 2020  and 27 May 2017. The Manchester Arena Inquiry was established in October 2019 and is on-going. 

The outcome for Ms Begum is bleak and her personal situation has attracted considerable sympathy but the essential fact remains that it is the Home Secretary who is entrusted with making decisions in these difficult matters. The Minister is advised by the security services and has full access to all known information. The Minister is accountable to Parliament.

Whether SIAC's powers are adequate when deciding appeals is another question. When it was created, SIAC was required to allow an appeal if it considered - (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently - see Special Immigration Appeals Commission Act 1997 section 4.

Section 4 was repealed from 1 April 2003 by the Nationality, Immigration and Asylum Act 2002. This left the approach to be taken on appeals uncertain and case law - examined extensively by Lord Reed - filled the gap. The Begum case clarifies the position for the future and appears to balance the constitutional roles of the Home Secretary and the courts of law.

It is open to Parliament to amend the legislation to give the courts more extensive powers when deciding appeals from the Minister but, given such a decisive win for the Home Secretary, it is obviously unlikely that the present government will seek amending legislation.

As for Ms Begum, she remains in a camp in Syria. Her appeal against deprivation of citizenship is stayed until there is a change in her circumstances enabling her to participate, from outside the UK, in a hearing. Whether and how those circumstances ever come about remains to be seen. It is unclear whether the government is able to take further steps to facilitate her involvement in the case even though steps were taken to facilitate her involvement in the deprivation appeal. Those steps are confidential and it would be a contempt of court for any party or other person to disclose the same.

One final note. The Supreme Court received interventions from (a) the United Nations Special Rappoteur on Counter-Terrrorism, (b) Liberty, and (c) Justice. Lord Reed said that these had received "careful consideration."  Little more is said in the judgment about the interventions. This is a pity. It would have been good to have seen some analysis of the interventions and would have been more respectful to those who helpfully intervened.

The Special Rapporteur welcomed the Court of Appeal decision bccause of  “the severe and irreparable consequences” of depriving of citizenship a woman who was a minor when she travelled to Syria.  The Rapporteur described Shamima as “a child who may have been groomed online, and who had no meaningful capacity to participate in the legal proceedings depriving her of citizenship”.

Liberty sees the Supreme Court's decision as a threat to the rule of law - see their article 26 February 2021.  I looked at the interesting submission by JUSTICE in a previous post 31 October 2020.

2 March 2021

Other commentaries / articles:

It will be no surprise to readers to find that opinion about this case varies considerably. There are those who think that the Supreme Court "failed" Shamima Begum - Human Rights Watch 2 March 2021

Others - such as Landmark Chambers - have offered more matter of fact commentary where thejudgment is seen as "an enormously important analysis of the role of the courts, and their relationship to the Secretary of State, in cases raising national security issues. It deals with significant constitutional issues about the balance to be struck between the protection of procedural rights and the protection of the public from terrorism. It is an important restatement of the approach to be taken, and the constitutional balance, in such cases."

UK Human Rights Blog 1 March 2021 - Supreme Court: Shamima Begum may be barred from UK - Marina Wheeler QC - "The Supreme Court’s Judgment is a useful reminder of how the system tries to balance the vital interests involved. But it is by no means the end of Shamima Begum’s fight to come home."

Freemovement - Shamima Begum loses case in Supreme Court - "What seems to me to be missing from the reasoning here is recognition that the reason Ms Begum cannot effectively participate in her appeal is because of the actions by the other party to the appeal in depriving her of citizenship while she was outside the country and then refusing her re-entry."

Links to further commentaries - ICLR 1 March 2021

UK Constitutional Law Association Blog - Daniella Lock: The Shamima Begum Case: Difficulties with 'democratic accountability' as a justification for judicial deference in the national security context

Law and Lawyers - 

23 February 2019 - Shamima Begum and the law - where the focus was on the powers of the Secretary of State to deprive an individual of citizenship.

31 October 2020 - Shamima Begum - a submission by JUSTICE to the Supreme Court

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