Image: The Guardian

Special Immigration Appeals Commission and Secretary of State for the Home Department v R (Begum) [2021] UKSC 7

Since 2019 when Shamima Begum was found in a camp in north Syria, her hopes of returning to the UK have ebbed and flowed (see here and here). Stripped of her British citizenship, she brought three sets of legal proceedings. Last week, after a ruling by the Supreme Court, her hopes receded once more. The Home Secretary was entitled to refuse her entry to the UK to pursue her appeal against the loss of citizenship, the Court ruled. So, Ms Begum’s appeal has been stayed, pending some change in her circumstances which will enable her to participate in a hearing – albeit from outside the UK.

The importance of the Judgment goes well beyond Ms Begum’s own circumstances.

It underlines an important constitutional principle about the separation of powers, at a time when the Government is carefully scrutinising such matters: the executive, not the judiciary, is the primary decision-maker when assessing risks to national security.

In failing to acknowledge this, said the Supreme Court, the Court of Appeal erred when it ruled last summer that fairness required Ms Begum be permitted into the UK to pursue her citizenship appeal, notwithstanding the national security concerns.

This is a complex and constantly developing area of law, but the Judgment reads like a rap on the knuckles. In determining this cluster of appeals concerning refusal of entry, deprivation of citizenship and the Home Secretary’s extraterritorial human rights policy, the Court of Appeal is said to have “misunderstood” the role of the Special Immigration Appeals Commission (SIAC) and the courts. The principles of law applied by an appellate body depend on the nature of the decision under appeal and the relevant statutory provisions. Due to repeated amendments and revisions, the statutory provisions have become complex and much of the Supreme Court Judgment is devoted to unravelling them and revisiting earlier decisions.

The most serious error, according to the Supreme Court, was the Court of Appeal’s approach to the Home Secretary’s refusal of leave to enter the UK. Impermissibly, it rejected the Secretary of State’s assessment of the risk which Ms Begum’s return would pose and substituted its own assessment. In ordering that Ms. Begum be given leave to enter, it ruled that national security concerns could be addressed and managed by arresting and charging Ms Begum on her arrival or by making her subject to a Terrorism Prevention and Investigation Measure (or TPIM). It did so without having any relevant evidence, the support of factual findings below, or sight of the Home Secretary’s closed evidence.

The Supreme Court drew on principles set out by Lord Hoffman in Secretary of State for the Home Department v Rehman [2001], reiterated subsequently in A v Secretary of State for the  Home Department [2004] and R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014]. First, the nature of the decision: whether something is in the interests of national security is not a question of law but a matter of judgment and policy which under the UK’s constitution (and most other countries’) is entrusted to the executive. 

Once the Home Secretary, as a member of the executive, has made an assessment, that assessment is accorded respect. There are two key reasons for this. The first is to do with “institutional competence”. The Home Secretary has the “advantage of a wide-range of advice from people with day-to-day involvement in security matters” and so is institutionally better qualified than a court to make an assessment. The second reason is about democratic accountability. The Home Secretary is charged by Parliament with responsibility for making such assessments and is answerable to Parliament for how that responsibility is discharged.

Quoting Lord Hoffman, the Supreme Court, spelt out the issue:

It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential consequences for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. 

That isn’t to say the Home Secretary’s assessment is immune from scrutiny. Considering an appeal against the deprivation of citizenship, SIAC will:

  1. examine if an order would make the subject stateless (SIAC earlier found Ms Begum to be a dual Bangladeshi national, but technically this could be appealed);
  2. assess whether the Home Secretary acted in a way no reasonable Home Secretary could have acted, or took into account some irrelevant matter, or disregarded something to which he should have given weight or was guilty of some procedural impropriety, bearing in mind the serious consequences which can flow from the deprivation of citizenship;
  3. consider whether the Home Secretary erred in law, including making findings of fact unsupported by evidence or based on a view of the evidence which could not reasonably be held; and
  4. consider whether the Home Secretary has complied with his/her obligations under the Human Rights Act, which is not the exclusive province of the executive.     

But what the courts cannot do is substitute their assessment for that of the Home Secretary.

The second serious error arose when the Court of Appeal balanced fair trial rights with national security concerns.

It was common ground that while detained by Syrian Democratic Forces in the Al-Roj camp, with limited ability to communicate with the outside word, Ms. Begum could not participate meaningfully in an appeal. But the Court of Appeal was wrong to conclude this meant that she had to be granted leave to enter the UK where she could have a fair and effective hearing.

The right to a fair hearing does not prevail over the requirements of national security where the interests conflict, said Lord Reed, giving the Supreme Court’s Judgment:

If a vital public interest – in this case, the safety of the public – makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. The appropriate response is for the appeal to be stayed until Ms Begum is able to play an effective part in it without the safety of the public being compromised … There is no perfect solution to a dilemma of this kind.

The Court of Appeal’s handling of the risk of mistreatment was also found defective. Having considered advice, the Home Secretary was satisfied that depriving Ms. Begum of citizenship would not expose her to a real risk of mistreatment in breach of the extraterritorial human rights policy. SIAC considered the Home Secretary’s assessment, including the closed material in support, and found it to be a reasonable conclusion. As there was no defect in SIAC’s reasoning, the Court of Appeal should not have interfered with its ruling.

There is a striking difference in focus and tone between the two Judgments. The Supreme Court draws from open parts of the security assessment, noting for example, that those who have spent a prolonged period of time in ISIL-controlled territory are likely to have the capability to carry out an attack, (women being encouraged to do so) or they may recruit, encourage, inspire, or assist others, using well-developed ISIL contacts. This type of reporting is absent from the Court of Appeal Judgment.

Ms. Begum’s case arouses strong feelings. Many refer, sympathetically, to her loss of three children, her wretched living conditions, her young age when she left to join ISIL, and the possibility she may have been groomed. But as the Court noted, the motives of the 15- year-old Shamima Begum were immaterial to the issue before it. The issue was the risk to public safety posed by the return of a 21-year-old who had married and lived in Raqqah, imbibing ISIL’s ideology for nearly four years.

Assertions about national security can seem abstract when set down on paper. But each day the Manchester Arena Public Inquiry sits – as it has done for almost six months – it offers a vivid reminder of what is at stake. Distraught families speak about the twenty-two people whom 23-year-old Salman Abedi killed when he blew himself up as they left a pop concert. It is heart-rending stuff. Inevitably, the authorities charged with keeping us safe are asked difficult questions: the Security Service considered Abedi a “subject of interest”, so how was he allowed to travel to Libya where he learnt how to kill? Why did they fail to prevent this attack and how can they make sure something similar doesn’t happen again?

Assessing these risks is inherently difficult and necessarily draws on information which we, the public, will never see. 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.

Marina Wheeler QC is a barrister at 1 Crown Office Row

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