Shamima Begum v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Lady Carr of Walton-on-the-Hill,Lord Justice Bean,Lady Justice Whipple |
| Judgment Date | 23 February 2024 |
| Neutral Citation | [2024] EWCA Civ 152 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000900 |
[2024] EWCA Civ 152
The Lady Carr of Walton-on-the-Hill
THE LADY CHIEF JUSTICE OF ENGLAND AND WALES
Lord Justice Bean
and
Lady Justice Whipple
Case No: CA-2023-000900
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
MR JUSTICE JAY, UPPER TRIBUNAL JUDGE CANAVAN AND MRS J BATTLEY
SC/163/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires KC, Samantha Knights KC, Ayesha Christie, Tim James-Matthews and Julianne Morrison (instructed by Birnberg Peirce LLP) for the Appellant
Sir James Eadie KC, Jonathan Glasson KC, David Blundell KC, Jennifer Thelen and Karl Laird (instructed by Government Legal Department) for the Respondent
Angus McCullough KC and Adam Straw KC (instructed by Special Advocates Support Office) appeared as Special Advocates
Hearing dates: 24–25 October 2023 (open), and 26 October 2023 and 2 February 2024 (closed)
Approved Judgment
The Lady Carr of Walton-on-the-Hill, LCJ, Lord Justice Bean and
Introduction
On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023. She appeals to this court with permission granted by the Chairman of SIAC, Jay J. The issue in this appeal is whether SIAC was right to conclude that the Secretary of State's decision to deprive her of her citizenship was lawful.
We heard two days of oral argument in open court followed by one day in closed session with Special Advocates representing Ms Begum's interests. This is the open judgment of the court, to which we have all contributed. There is also a closed judgment in this appeal. We are grateful to counsel for all parties for their focussed submissions. In particular we are grateful to the Special Advocates, who discharged their difficult and demanding role of scrutinising the Secretary of State's closed evidence and submissions with great skill and thoroughness.
Legislation
Section 40 of the BNA 1981 (“s 40”) provides, so far as relevant, as follows:
“(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.
…
(4) The Secretary of State may not make an order under (2) if he is satisfied that the order would make a person stateless.
…
(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying —
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.
…”
Sub-sections 40(3) and 40(6) permit the Secretary of State to exercise the deprivation power in circumstances where he is satisfied that the person obtained registration or naturalisation as a British citizen by means of fraud, false representation or concealment. Sub-section 40(4A) contains an exception to the rule in s 40(2) (not relevant to this appeal). Sub-sections 40(5A)-(5E) were inserted by the Nationality and Borders Act 2022 with effect from 10 May 2023, which post-dates the decision in question.
Section 40A of the BNA 1981 provides that a person who is given notice under s 40(5) of that Act may appeal to the First-tier Tribunal, subject to the Secretary of State certifying, pursuant to s 40A(2), that the deprivation decision was taken wholly or partly in reliance on information which in his opinion should not be made public for reasons, amongst other things, of national security.
The Special Immigration Appeals Commission Act 1997 (“SIACA 1997”) provides for a right of appeal as follows:
“2B. A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2) …”
Litigation History
The case has an extensive litigation history. After giving notice of appeal against the deprivation decision to SIAC, Ms Begum applied for leave to enter the UK outside the Immigration Rules so that she could take part in her appeal. The Secretary of State refused that application. Ms Begum challenged that decision both by way of appeal to SIAC and by way of a claim for judicial review in the Administrative Court. SIAC ordered a preliminary hearing to determine: (1) whether the deprivation decision rendered the claimant stateless as at the date of that decision, (2) whether the decision was unlawful as exposing the claimant to a real risk of mistreatment contrary to Article 2 or 3 of the European Convention on Human Rights (“ECHR”) and/or the published policy or practice of the Secretary of State and (3) whether Ms Begum could have a fair and effective appeal against the deprivation decision from outside the UK. At the preliminary hearing before SIAC the then Chairman, Elisabeth Laing J, presided; she simultaneously heard the claim for judicial review as a single judge. By decisions dated 7 February 2020 the preliminary issues were determined against Ms Begum and the claim for judicial review was dismissed.
Ms Begum sought judicial review of the decision of SIAC and appealed against the decision of Elisabeth Laing J. On 16 July 2020 King, Flaux, and Singh LJJ allowed Ms Begum's appeals (sitting as the Court of Appeal) and her claim for judicial review (sitting as a Divisional Court). However, the Secretary of State succeeded in reversing these decisions on appeal to the Supreme Court in a judgment given by Lord Reed PSC, with whom the other Justices agreed ( R (Begum) v Special Immigration Appeals Commission (“ Begum UKSC”) [2021] UKSC 7; [2021] AC 765).
The Supreme Court held that the Secretary of State acted lawfully in refusing Ms Begum leave to enter the UK for the purposes of her appeal to SIAC. She was given the choice of either having that appeal stayed or proceeding with it notwithstanding that she could not give evidence or be physically present. She elected to proceed with the substantive appeal, which was heard by SIAC from 21 to 25 November 2022. In reserved open and closed judgments dated 22 February 2023, in which the case was described as being “of great concern and difficulty”, SIAC dismissed the appeal.
The role of the courts in challenges to decisions on the grounds of national security
The relevant principles governing SIAC's jurisdiction and role on an appeal against a decision to deprive a person of citizenship under s 40(2) are now well established. In summary, those principles are:
i) SIAC is not the primary decision-maker. The exercise of the power conferred by s 40(2) must depend heavily on a consideration of relevant aspects of the public interest, which may include considerations of national security and public safety. The primary decision is entrusted to the Secretary of State who has the advantage of a wide range of advice, including from security specialists.
ii) SIAC's jurisdiction is appellate (and not supervisory). In general, SIAC's powers are restricted to considering whether the Secretary of State has acted in a way in which no reasonable decision-maker could have acted, or whether it has taken into account some irrelevant matter or has disregarded something to which it should have given weight, or has erred on a point of law (an issue which encompasses the consideration of factual questions). SIAC can consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or based on a view of the evidence which could not reasonably be held.
iii) SIAC must have regard to the nature of the discretionary power in question, and the Secretary of State's statutory responsibility for deciding whether the deprivation of citizenship is conducive to the public good. It will bear in mind the serious nature of a deprivation of citizenship, and the severity of the consequences which can flow from such a decision.
iv) In questions involving an evaluation of risk, SIAC allows a considerable margin, and real respect, to the Secretary of State's assessment. Some aspects of that assessment may not be justiciable; others will depend on an evaluative judgment. In matters of high policy, SIAC's deference may be effectively simple acceptance; at more granular levels, it is the function of SIAC to scrutinise all the evidence, open and closed, assisted by the invaluable contribution of the Special Advocates. It will apply a critical and expert intelligence – a “powerful microscope” — to test the approach and the evidence bearing on the assessment, both for and against the conclusions of the Secretary of State, and then, applying due deference, decide whether the conclusions of the Secretary of State are sustainable.
v) SIAC can make its own findings of fact which may be relevant to the assessment of national security, as long as it does not use those findings of fact as a platform for substituting its view of the risk to national security for that of the Secretary of State. Subject to that important limitation, it may make whatever findings of fact it considers it is able to on the evidence and which, in its expert judgment, it considers that it is appropriate to make.
vi) SIAC can determine whether the Secretary of State has complied with s 40(4) (concerning statelessness) and must also determine for itself the compatibility of the decision with the...
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