Shamima Begum v Special Immigration Appeals Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice Singh,Lady Justice King |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] EWCA Civ 918 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2020/0644, T3/2020/0645 and T3/2020/0708 |
| Date | 16 July 2020 |
and
and
[2020] EWCA Civ 918
Lady Justice King
Lord Justice Flaux
and
Lord Justice Singh
Case No: T2/2020/0644, T3/2020/0645 and T3/2020/0708
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
(T2/2020/ 0644)
(SITTING ALSO AS A DIVISIONAL COURT IN CO/798/2020) (T3/2020/0708)
AND
ON APPEAL FROM THE ADMINISTRATIVE COURT (T3/2020/0645)
MRS JUSTICE LAING
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tom Hickman QC and Ms Jessica Jones (instructed by Birnberg Peirce) for the Appellant
Sir James Eadie QC, Mr Jonathan Glasson QC and Mr David Blundell QC (instructed by The Government Legal Department) for the Respondent
The Defendant, the Special Immigration Appeals Commission, was not represented
Mr Angus McCullough QC and Mr Adam Straw (supported by Special Advocates' Support Office) Special Advocates representing the interests of the Appellant
Mr Guglielmo Verdirame QC, Mr Jason Pobjoy and Ms Belinda McRae (instructed by Leigh Day) for the First Intervenor (by written submissions only)
Mr Richard Hermer QC and Ms Ayesha Christie (instructed by Liberty) for the Second Intervenor (by written submissions only)
Hearing dates: Thursday 11 June and Friday 12 June 2020
Approved Judgment
Introduction
This appeal concerns the decisions of the respondent (to whom I will refer as the Secretary of State) (i) on 19 February 2019 to deprive the appellant (to whom I will refer as “Ms Begum”) of her British citizenship in respect of which Ms Begum issued an appeal pursuant to section 40A of the British Nationality Act 1981 (“the BNA”) and section 2B of the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and (ii) on 13 June 2019 to refuse her application for leave to enter (“LTE”) the United Kingdom to pursue her appeal before the Special Immigration Appeals Commission (“SIAC”) against that deprivation of citizenship. The latter decision was challenged by Ms Begum in two ways: (a) by an appeal against that refusal in so far as the decision determined a “human rights claim” which appeal was to SIAC under section 2 of the 1997 Act because the Secretary of State had certified that the decision was taken in reliance on information which he considered should not be made public in the interests of national security; and (b) by judicial review proceedings in the Administrative Court challenging the decision on common law grounds.
SIAC identified three preliminary issues for determination at a hearing which was fixed for 22 October 2019:
(1) Whether the effect of the Secretary of State's decision dated 19 February 2019 rendered Ms Begum stateless as at the date of the decision;
(2) Whether the Secretary of State's deprivation decision dated 19 February 2019 was unlawful because of its direct and foreseeable consequence of exposing Ms Begum to a real risk of mistreatment which would constitute a breach of Article 2 or 3 ECHR and/or would be contrary to the Secretary of State's practice as set out in a Supplementary Memorandum published in January 2014;
(3) Whether Ms Begum could have a fair and effective appeal against the deprivation of citizenship from outside the United Kingdom and in Syria.
By Orders of the Administrative Court and SIAC, the deprivation appeal and LTE appeal together with a rolled-up hearing of the judicial review were ordered to be heard together. The linked hearings took place on 22 to 25 October 2019 before SIAC (Elisabeth Laing J, UTJ Blum and Mr Roger Golland) with the claim for judicial review heard by Elisabeth Laing J.
On 7 February 2020 the following judgments were handed down:
(1) An OPEN judgment of SIAC determining all three preliminary issues against Ms Begum. There was no separate judgment in SIAC in respect of the LTE human rights appeal.
(2) A judgment of the Administrative Court granting permission to apply for judicial review but dismissing the substantive claim for judicial review of the LTE decision.
(3) A CLOSED judgment of SIAC in the deprivation appeal. Since SIAC had said in its OPEN judgment that it had been able to resolve the preliminary issues in OPEN, that CLOSED judgment was not relevant to the present appeal and application. Shortly before the present hearing we refused an application by the Secretary of State for the Court to read the CLOSED judgment.
Because the right of appeal under section 7 of the 1997 Act only arises upon a final determination by SIAC and there is yet to be a final determination of the deprivation appeal, Ms Begum's challenge to the determination of SIAC on the preliminary issues can only be by way of judicial review. On 6 April 2020 Swift J granted permission to apply for judicial review of the decision of SIAC on the second and third preliminary issues. Ms Begum did not seek to challenge by way of judicial review the decision of SIAC on the first preliminary issue that the deprivation decision had not rendered her stateless, so we do not need to consider that issue further. In relation to that claim for judicial review, we sat as a Divisional Court.
On 14 April 2020, Elisabeth Laing J gave Ms Begum permission to appeal in respect of the two LTE decisions and in relation to those appeals, we sat as a Court of Appeal.
The factual background
Ms Begum's father was born in Bangladesh in 1958. He came to the United Kingdom in November 1975 (when he was granted indefinite leave to enter) and he was granted indefinite leave to remain in 1993. He has never naturalised as a British citizen. Her mother was born in 1964 in Bangladesh and married her father there in March 1980. She obtained indefinite leave to enter on coming to the United Kingdom to join Ms Begum's father in November 1981. She naturalised in November 2009.
Ms Begum was born on 25 August 1999 in the United Kingdom, where she was brought up. At birth, she held British citizenship under section 1(1) of the BNA because her parents were both settled in the United Kingdom. SIAC found (in its decision on the first preliminary issue) that she also holds Bangladeshi citizenship by descent through her parents by virtue of section 5 of the Bangladesh Citizenship Act 1951.
On 17 February 2015, when she was 15, Ms Begum left the United Kingdom with two school friends, Kadiza Sultana and Amira Abase, and travelled to Syria via Turkey. She used her older sister's passport to do so. Shortly after arriving in Syria she married an ISIL fighter. She then lived in Raqqah, the capital of ISIL's self-declared caliphate. Her whereabouts were unknown until she was discovered by journalists in February 2019 in the Al-Hawl camp run by the Syrian Democratic Forces (“SDF”), by whom she was and is detained. She had remained in Syria since arriving there in 2015 and had aligned with ISIL.
Whilst in the Al-Hawl camp she gave birth to her third child, a boy. Both her other children had died before she arrived at the camp. On 13 February 2019 she gave an interview to a Times journalist, stating her desire to return to the United Kingdom. She was moved to another camp, the Al-Roj camp, some time in late February 2019, reportedly because of threats to her life following publication of the interviews she had given in the international media.
On about 7 March 2019, her baby died, reportedly of pneumonia, a result of the dire condition in the SDF-run camps and the lack of effective medical treatment. In its judgment at [130], SIAC accepted that the conditions in the camp are so bad that they meet the threshold of inhuman or degrading treatment for the purposes of Article 3 of the European Convention on Human Rights (“ECHR”).
The submissions to the Secretary of State and the deprivation decision
Before the Secretary of State made the deprivation decision on 19 February 2019, he received submissions from his officials and the Security Service. An OPEN summary of the deprivation submission was disclosed to Ms Begum in the SIAC proceedings, some of which was originally in CLOSED but was brought into OPEN following a Rule 38 hearing attended by the Special Advocates. So far as relevant to the issues we have to determine, that provides:
“(e) SCU [the Special Cases Unit] notes that individuals such as BEGUM who were radicalised whilst minors may be considered victims. This does not change the threat the Security Service assesses that BEGUM poses to the UK. Whilst accepting that BEGUM may well have been a victim of radicalisation as a minor, SCU does not consider this justifies putting the UK's national security at risk by not depriving her of her citizenship, for this reason.
(h) SCU considers that should BEGUM become aware of the deprivation decision whilst in al-Hawl it is difficult to see how she might effectively exercise her appeal right from that location. However, SCU's position is that where she has been out of the UK for several years through her own choice, we would argue that it would be incorrect to allow her to return to the UK to engage with her appeal. In any event BEGUM seemingly has no immediate prospect of leaving al-Hawl/travelling to the UK or another location so as to more effectively pursue the appeal, and neither can HMG facilitate BEGUM's travel out of Syria. President Trump has recently reiterated the US...
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