R (on the application of Begum) (Appellant) v Special Immigration Appeals Commission (Respondent); R (on the application of Begum) (Respondent) v Secretary of State for the Home Department (Appellant); and Begum (Respondent) v Secretary of State for the Home Department (Appellant)
The Supreme Court unanimously allows the Secretary of State's appeals in each of the proceedings, and dismisses Begum's cross-appeal. Her leave to enter appeal, her application for judicial review of the leave to enter decision, and her application for judicial review of the Special Immigration Appeals Commission's preliminary decision in the deprivation appeal, are all dismissed.
The case was heard on 23 and 24 November 2020, and in a judgment delivered on 26 February 2021 the Supreme Court unanimously found in favour of the Home Secretary on her appeal against an Order of the Court of Appeal that Begum should be given leave to enter the United Kingdom, which it overturned.[1] It also dismissed Begum's applications for judicial review of the leave to enter decision and of the Special Immigration Appeals Commission's preliminary decision in a deprivation of citizenship appeal. It considered that Begum's challenge to her loss of British citizenship could only be stayed until such time as she is in a position to play an effective part in it without the safety of the public being compromised.
Facts
The daughter of Bangladeshi parents, Begum was born in London in 1999 and grew up in Bethnal Green, attending the Bethnal Green Academy.[2] She held British citizenship under section 1 of the British Nationality Act 1981, as both her parents were settled in the United Kingdom when she was born. In a preliminary decision, the Special Immigration Appeals Commission (SIAC) found that as a matter of Bangladeshi nationality law she also holds Bangladeshi citizenship through her parents, as a result of section 5 of the Citizenship Act, 1951.[3]
With two friends, Begum left Britain in February 2015 to go to Syria to join ISIS.[4] A few days after her arrival there, she married Yago Riedijk, a Dutch-born ISIS fighter.[5]
On 13 February 2019, Anthony Loyd of The Times interviewed Begum at the al-Hawl refugee camp in Syria, with the newspaper calling this "a major scoop".[6] On 19 February 2019, British Home SecretarySajid Javid decided to use his power to deprive Begum of her United Kingdom citizenship, relying on information not to be made public on the grounds of national security. He later said she would never be allowed to return.[7][8] She was nine months pregnant at the time,[9] and gave birth to a son within hours. Begum gave an interview to Sky News the same day, claiming she was only a housewife.[10] Her case turned into a cause célèbre, and it was argued on her behalf that she was a minor when she left home, so should not be held to the same standards of behaviour as those who were of full age.[11] On 3 March, Begum's Dutch husband said he wished them to live in the Netherlands, but he was then in a Kurdish detention centre in Syria, and if he were to return to the Netherlands he could face imprisonment for belonging to a terrorist organisation.[5]
On 15 April 2019, it was reported that Begum had been granted legal aid to fight the revocation of her British citizenship. Foreign Secretary Jeremy Hunt described the Legal Aid Agency's decision as "very uncomfortable", but said that the United Kingdom was "a country that believes that people with limited means should have access to the resources of the state if they want to challenge the decisions the state has made about them".[12]
On 3 May 2019 Begum applied for leave to enter Britain outside the Immigration Rules, under section 3 of the Immigration Act 1971 and section 113 of the Nationality, Immigration and Asylum Act 2002. She relied in part on Article 2 and Article 3 of the European Convention on Human Rights. On 13 June 2019, Javid refused this application, giving as reasons that Begum had not supplied a photograph of her face and a copy of her fingerprints and that the European Convention on Human Rights did not apply to her, or if it did there was no evidence that refusing her entry would breach her Convention rights. This further decision by Javid was later referred to as the "leave to enter decision".[13]
In August 2019, under the Terrorism Act 2000, the Metropolitan Police asked the media organisations which had interviewed Begum, including the BBC, ITN News, Sky News, and The Times, to surrender any unpublished material they held about her to assist them in preparing a prosecution.[14]
On 16 July 2020, the Court decided that Begum could not have a fair hearing as a result of the SIAC preliminary decision on Articles 2 and 3 of the European Convention on Human Rights, so her claim for judicial review of that decision succeeded. The judgment said "Fairness and justice must, on the facts of this case, outweigh the national security concerns, so that the leave to enter appeals should be allowed." Begum's counsel had asked the Court to allow the deprivation of citizenship appeal and to quash the Home Secretary's decision, but instead the Court remitted that issue to SIAC to be decided de novo.[16] This was reported by the BBC as "Shamima Begum can return for UK citizenship fight."[17]
In reaction to this, the United Nations special rapporteur on Counter-Terrorism, Fionnuala Ní Aoláin, welcomed the decision, commenting "I commend the UK Court of Appeal for grasping the essential and absolute importance of the right to meaningfully participate in the proceedings depriving a person of their citizenship".[18] The Court of Appeal ordered the Home Secretary to grant Begum leave to enter the United Kingdom and to provide her with the travel documents she needed.[19]
Home Secretary's appeal to the Supreme Court
The Home Secretary appealed to the Supreme Court on three matters:
The decision to allow Begum's application for judicial review of SIAC's decision on the Secretary of State's policy;[20]
The decision to allow Begum's appeal against SIAC's decision dismissing the leave to enter appeal, and to order that leave to enter the United Kingdom be granted;[20]
the decision allowing Begum's appeal against Elisabeth Laing's decision to dismiss the application for judicial review of the leave to enter decision, and again to order that leave to enter be granted.[20]
Begum filed a cross-appeal, claiming the Court of Appeal had been wrong to reject her argument that her appeal on the deprivation of citizenship should automatically be allowed if it could not be fairly and effectively pursued due to her being prevented from entering the United Kingdom.[20]
Hearing and counsel
The Supreme Court hearing took place on 23 and 24 November 2020. Lord Pannick QC, Tom Hickman QC, and Jessica Jones, instructed by Birnberg Peirce, represented Begum. Sir James Eadie QC, Jonathan Glasson QC, and David Blundell QC were instructed by the Government Legal Department. There were also three Intervenors. Richard Hermer QC and Ayesha Christie were instructed by the advocacy group Liberty, and Felicity Gerry QC and Eamonn Kelly by JUSTICE, the British section of the International Commission of Jurists. The United Nations special rapporteur on Counter-Terrorism, Fionnuala Ní Aoláin, was represented by Guglielmo Verdirame QC, Jason Pobjoy, and Belinda McRae, who made written submissions and did not appear in court.[21]
Supreme Court judgment
On 26 February 2021, the Supreme Court, comprising PresidentLord Reed, Deputy PresidentLord Hodge, Lady Black, and Lords Lloyd-Jones and Sales, published a judgment settled by Lord Reed and agreed unanimously by the other justices which found that the Court of Appeal had erred in four respects:[22]
It misunderstood the role of the Special Immigration Appeals Commission and the courts on an appeal against the Home Secretary's decision to refuse leave to enter the United Kingdom. The scope of an appeal in such cases is limited to whether the decision is in accordance with section 6 of the Human Rights Act, a question which did not arise in Begum's appeal.[23]
It erred in its approach to the appeal against the dismissal of Begum's application for judicial review of the Home Secretary's refusal of leave to enter, making its own assessment of the requirements of national security, despite having no relevant evidence before it or any relevant findings of fact. Its approach failed to give the Home Secretary's assessment the respect it should have received.[24]
It was mistaken in its finding that, when an individual's right to a fair hearing of an appeal came into conflict with the requirements of national security, the right to a fair hearing must prevail. If a vital public interest, such as public safety, makes it impossible for a case to be fairly heard, then it cannot ordinarily be heard. The appeal should therefore be stayed until the appellant is in a position to play an effective part in it without public safety being compromised. In this case, it was not known how long it might be before that was possible.[25]
It mistakenly treated the Home Secretary's policy, intended for the guidance of Sajid Javid in the exercise of his discretion, as if it were a rule of law which must be obeyed and applied the wrong approach to considering whether the Home Secretary had acted lawfully.[26]
In his reasoning, Lord Reed quoted from the judgment of Flaux LJ in the Court of Appeal decision, "Fairness is not one-sided and requires proper consideration to be given not just to the position of Ms Begum but the position of the Secretary of State." He underlined this by another quotation: "As Eleanor Roosevelt famously said, justice cannot be for one side alone, but must be for both."[27]
Reactions
Priti Patel, who had taken over from Javid as Home Secretary in July 2019,[28] said the Supreme Court decision "reaffirmed the home secretary's authority to make vital national security decisions".[29]
In Syria, Shamima Begum was reported to be "angry, upset and crying" and refusing to speak to friends in the refugee camp where she was living.[30]ITV News filmed her walking around the camp at Al-Roj, but she would say nothing to them.[9]
Sajid Javid, who had taken the decisions being challenged, welcomed the Supreme Court judgment and said
The Home Secretary is responsible for the security of our citizens and borders, and therefore should have the power to decide whether anyone posing a serious threat to that security can enter our country... any restrictions of rights and freedoms faced by this individual are a direct consequence of the extreme actions that she and others have taken, in violation of government guidance and common morality.[9]
Disappointing verdict in the Supreme Court. Regardless of what individuals like Shamima Begum have done, the UK cannot simply wash our hands of Brits in the Syrian camps. The correct approach would be to return them to the UK to answer for their crimes.[9]
Maya Foa, director of Reprieve, writing in The Guardian, stated that Begum was a victim of human trafficking and had been "reduced to a caricature".[31] In an editorial, the newspaper disagreed with the judgment, claiming that "For Britain to offload Ms Begum... is an abuse of position and of history."[32]
In The Daily Telegraph, Patrick O'Flynn welcomed the judgment, commenting that it was a victory for common sense and came as a surprise, as judges rarely "cite the desire of the British public not to be placed in danger when the apparently inalienable right of some scumbag or other to a family life or to avoid the risk of persecution in another land is at stake."[33]
Begum's lawyers issued a statement earlier in the day to say that if she could not receive a fair hearing, she should win her case to keep her British citizenship, relying on the finding of the Court of Appeal in July 2020 that Begum could not make her case from the camp where she was. The BBC's home and legal affairs correspondent Dominic Casciani said the imminent decision had "potentially major implications for Ms Begum's case and others like it."[34]
In reporting the decision, The Washington Post said Begum's was the citizenship revocation with the highest profile and the case had divided the British on matters of extremism and human rights.[35] The paper saw impacts on many other British women who had joined ISIS and were now in refugee camps in Syria with their children, noting a report by the group "Rights and Security International" which claimed the British government had a "systematic policy of depriving women in the camps of their citizenship".[35] However, The Washington Post noted that France, Belgium, the Netherlands, and Denmark had also taken citizenship away from their nationals who had fought for the Islamic State.[35]
CNN reported the Supreme Court's decision, quoting at length from its judgment,[36] and added
The decision to revoke Begum's citizenship has come under fire from human rights campaigners and legal experts alike who argue that the revocation rendered her stateless and compromised her right to a fair appeal.[36]
1 2 3 Adam Taylor, "Europe: U.K. Supreme Court rules woman who joined Islamic State as teen cannot return to Britain", The Washington Post, 26 February 2021, accessed 26 February 2021
Claire L'Heureux-Dubé is a retired Canadian judge who served as a puisne justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position, after Bertha Wilson. Previously, she had been one of the first woman lawyers to handle divorce cases, and was the first woman appointed as a judge to the Quebec Superior Court and the Quebec Court of Appeal.
R (Begum) v Governors of Denbigh High School [2006] is a House of Lords case on the legal regulation of religious symbols and dress under the Human Rights Act 1998.
The Special Immigration Appeals Commission is a superior court of record in the United Kingdom established by the Special Immigration Appeals Commission Act 1997 that deals with appeals from persons deported by the Home Secretary under various statutory powers, and usually related to matters of national security. SIAC also hears persons deprived of British citizenship under the British Nationality Act 1981 as amended by Section 4 of the Nationality, Immigration and Asylum Act 2002.
David Philip Pannick, Baron Pannick, is a British barrister and a crossbencher in the House of Lords. He practises mainly in the areas of public law and human rights. He has argued cases before the Supreme Court of the United Kingdom, the Appellate Committee of the House of Lords, the European Court of Justice, and the European Court of Human Rights.
Robert John Reed, Baron Reed of Allermuir, is a Scottish judge who has been President of the Supreme Court of the United Kingdom since January 2020. He was the principal judge in the Commercial Court in Scotland before being promoted to the Inner House of the Court of Session in 2008. He is an authority on human rights law in Scotland and elsewhere; he served as one of the UK's ad hoc judges at the European Court of Human Rights. He was also a Non-Permanent Judge of the Court of Final Appeal of Hong Kong.
Sir Sajid Javid is a British politician who served as Secretary of State for Health and Social Care from June 2021 to July 2022, having previously served as Home Secretary from 2018 to 2019 and Chancellor of the Exchequer from 2019 to 2020. A member of the Conservative Party, he has been Member of Parliament for Bromsgrove since 2010.
The Islamic State of Iraq and the Levant (ISIL) is proscribed as a terrorist organisation by the United Kingdom. British citizens have fought as members of the group, and there has been political debate on how to punish them. On 26 September 2014, Parliament voted to begin Royal Air Force airstrikes against ISIL in northern Iraq at the request of the Iraqi government, which began four days later, using Tornado GR4 jets. On 2 December 2015, the UK Parliament authorised an extension to the Royal Air Force airstrike campaign, joining the US-led international coalition against ISIL in Syria. Hours after the vote, Royal Air Force Tornado jets began bombing ISIL-controlled oilfields.
Sir Julian Martin Flaux is the Chancellor of the High Court.
The Bethnal Green trio are Amira Abase, Shamima Begum, and Kadiza Sultana, three British girls who attended the Bethnal Green Academy in London before leaving home in February 2015 to join the Islamic State. According to the Institute for Strategic Dialogue, they were among an estimated 550 women and girls from Western countries who had travelled to join IS—part of what some have called "a jihadi, girl-power subculture", the so-called Brides of ISIL. The events were adapted into the Swedish TV series Caliphate.
R (Tigere) v Secretary of State for Business, Innovation and Skills was a 2015 judgment of the Supreme Court of the United Kingdom concerning student loans in the United Kingdom.
R v Jogee[2016] UKSC 8 was a 2016 judgment of the Supreme Court of the United Kingdom that reversed previous case law on joint enterprise. The Supreme Court delivered its ruling jointly with the Judicial Committee of the Privy Council, which was considering an appeal from Jamaica, Ruddock v The Queen [2016] UKPC 7.
Sir James Raymond Eadie, KC is a British barrister. Since January 2009, he has served as the First Treasury Counsel or "Treasury Devil", the government's independent barrister on legal issues of national importance. He represented the UK Government in the R v Secretary of State for Exiting the European Union case in 2016, and in the R (Miller) v The Prime Minister case in 2019.
The Windrush scandal was a British political scandal that began in 2018 concerning people who were wrongly detained, denied legal rights, threatened with deportation, and in at least 83 cases wrongly deported from the UK by the Home Office. Many of those affected had been born British subjects and had arrived in the UK before 1973, particularly from Caribbean countries, as members of the "Windrush generation".
Huang v Secretary of State for the Home Department [2007] UKHL 11 is a UK constitutional law case, concerning judicial review.
Shamima Begum is a British-born woman who entered Syria to join the terror group Islamic State (IS) at the age of 15. She was a student at Bethnal Green Academy in London when she and two schoolmates travelled to Syria in February 2015 and became known as the Bethnal Green trio. Begum's journey was facilitated by an IS smuggler who was providing information to Canadian intelligence. She married a fellow IS member 10 days after her arrival and had three children who all died young. The Daily Telegraph reported that Begum had developed a reputation as an enforcer amongst other members of IS and had tried to recruit other young women to join the group.
Hoda Muthana is a U.S.-born Yemeni woman who emigrated from the United States to Syria to join ISIS in November 2014. She surrendered in January 2019 to coalition forces fighting ISIS in Syria and has been denied access back to the United States after a U.S. court ruling rejected her claim to American citizenship. When she was born, her father was a Yemeni diplomat, making her ineligible for American citizenship by birth.
Beginning in 2012, dozens of girls and women traveled to Iraq and Syria to join the Islamic State (IS), becoming brides of Islamic State fighters. While some traveled willingly, others were brought to Iraq and Syria as minors by their parents or family or forcefully.
Sharmeena Begum is a jihadi bride who left the United Kingdom to join the Islamic State of Iraq and the Levant (ISIL) in December 2014. Two months later, in February 2015, her school friends Amira Abase, Shamima Begum, and Kadiza Sultana joined her in occupied Syria. Begum is one of the youngest British teenagers to join ISIL.
Canada v Vavilov, 2019 SCC 65, is a landmark decision of the Supreme Court of Canada that clarified the determination and application of standard of review in Canadian administrative law. Vavilov established a presumption that reasonableness is the applicable standard of review of administrative decisions in all cases. The case concerned the review of the Canadian Registrar of Citizenship's decision to cancel Alexander Vavilov's citizenship certificate on the basis of his parents' identity as covert Russian agents, based on an interpretation of s. 3(2)(a) of the Citizenship Act. The Supreme Court of Canada affirmed the Federal Court of Appeal's decision to quash the Canadian Registrar of Citizenship's decision, on the basis that it was unreasonable.
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