Immigration: When human rights meet national security

Few people in the UK will be unaware of Shamima Begum. The so-called “ISIS bride’s” bid to return to the UK has been at the forefront of the British media and has polarised political and legal debate.

For those unaware of Begum’s circumstances, after she left the UK at 15 years old for Syria in order to join ISIS, the then Secretary of State for the Home Department (“SSHD”), Sajid Javid, deprived her of her citizenship in 2019. She first challenged the decision in the Special Immigration Appeals Chamber (“SIAC”), the tribunal responsible for considering immigration appeals where national security is in issue. This resulted in a determination in relation to a number of preliminary issues: that the decision depriving Begum of her citizenship would not make her stateless; that the SSHD had not breached his policy on human rights abroad; and that her inability to participate effectively in her appeal did not mean that she should be allowed to return to the UK to pursue it in person.

The Supreme Court’s judgment in R (Begum) v Secretary of State for the Home Department [2021] UKSC 7 (26 February 2021) deals primarily with the Court of Appeal judgment made on appeal from the SIAC which, in particular, had overturned the third part of the SIAC’s judgment and held that Begum should be allowed to return to the UK to participate in her appeal. Both SIAC and the Court of Appeal (“CoA”) had agreed that Begum would be unable to have a fair and effective hearing while she resided in Syria. Despite having accepted that she could not “play any meaningful part in her appeal”, the SIAC held that there was “no universal rule” that all appeals against deprivation of citizenship decisions had to be effective. The rights of the individual in question had to be balanced against the national security interests.

Flawed approach

Lord Reed, with whom all the other Justices agreed, identified a number of significant errors in the CoA’s judgment in allowing the SSHD’s appeal. One aspect of the judgment deals with the scope of appeals against the refusal of “leave to enter” applications and appeals against deprivation of citizenship respectively. Begum had sought leave to enter in order to return to the UK to appeal against the deprivation of her citizenship. The UKSC held that appeals could only be brought on narrow grounds under s 6 of the Human Rights Act 1998. The appeal could not, for example, be brought on grounds that the SSHD’s decision was not in accordance with his extraterritorial human rights policy, which goes beyond what is contained in s 6 of the 1998 Act. The SSHD policy is not a “rule of law”; it is guidance. As to the deprivation appeal, grounds of appeal are limited to s 6 and traditional administrative law grounds (whether the decision would make Begum stateless, whether the decision of the SSHD was perverse or whether he erred in law in some other respect).

The judgment is scathing on the CoA’s assessment of the requirements of national security. Its error in this respect was its substitution of its own assessment for the SSHD’s without any, or adequate, evidence. The CoA had considered that there would be safeguards in place to alleviate national security risks on Begum’s return, for example by arresting and charging her on arrival and making her subject to a terrorist prevention and investigation measure. In so doing, the CoA failed to pay the SSHD’s risk assessment the respect it deserved. The question of what is in the interests of national security is a matter of policy rather than law, and therefore the responsibility of a democratically accountable politician. Crucially, the SSHD would also have available to him wide-ranging advice and evidence to qualify him, given his daily involvement in national security matters, to make this assessment.

Lord Reed was equally damning of the CoA’s approach to balancing Begum’s fair trial rights against national security issues. In line with the SIAC’s reasoning, where the public interest is such that a case cannot fairly be heard, then it will not be heard. It did not matter that Begum would be unable to exercise her right to a fair and effective hearing from Syria. The interests of national security trumped her individual rights in this regard. The appeal therefore had to be stayed until she could effectively participate without increasing the risk to public safety. Lord Reed acknowledged that there was no “perfect solution” to this issue, but national security interests had to prevail in the circumstances.

Difficult position

Where does this leave Shamima Begum? It has to be said that her prospects of successfully appealing against the deprivation decision have weakened considerably. Her two options are: either pursue an appeal from abroad in a hearing in which she will be unable to participate; or wait indefinitely until she is in a position to participate. In any event, the grounds against which she can challenge the deprivation decision are narrow and the SIAC’s preliminary rulings are indicative of the difficulties she will face in establishing before it that the SSHD’s decision was unlawful.