Begum v Special Immigration Appeals Commission (SIAC)  EWCA Civ 9Alex Addington
On the 16th July 2020, the Court of Appeal decided in Begum v Special Immigration Appeals Commission (SIAC)  EWCA Civ 9 that Shamima Begum be allowed leave to enter the UK so that she can partake in her appeal against the deprivation of her British Citizenship. Failure to allow her to do so, the court ruled, would prevent the appeal from being ‘fair and effective’.
Summarised in paragraph 2 of the judgement, Flaux LJ references the SIAC’s identification of ‘3 preliminary issues’ that required determination in the previous hearing that took place on 22nd October 2019. The decision reached on those issues were amenable to Judicial Review in this month’s hearing. They were:
- Whether Ms. Begum would be rendered stateless as a result of her deprivation of British citizenship
- Whether the deprivation of citizenship would constitute a breach of Article 2 and 3 ECHR ‘because of its direct and foreseeable consequence of exposing Ms. Begum to a real risk of mistreatment’
- Whether Ms. Begum could have a ‘fair and effective appeal’ from outside the UK and from Syria
Whether or not Ms. Begum would be rendered stateless by the deprivation of her British citizenship was determined in February’s hearing. It was held by the SIAC that the Secretary of State’s decision did not have this effect, a finding that was not challenged in this month’s appeal. Ms. Begum, although born in the United Kingdom and brought up here, does qualify for Bangladeshi citizenship as a result of her ancestry. In theory, she can apply for Bangladeshi citizenship and the decision of the Secretary of State would therefore not be a violation of s40 of the British Nationality Act (BNA) 1981.
S40 BNA 1981 enables an authority to withdraw an individual’s British citizenship in certain circumstances. However, it is made clear at s40(4) BNA 1981 that this is not permissible were it to render an individual stateless. Comments from the Foreign Minister of Bangladesh, Abdul Momen, has cast doubt on whether the option of obtaining Bangladeshi citizenship is realistic. He has stated that there is “no question” that Ms. Begum will be entitled to this right, going onto state that as “the British government is responsible for her. They’ll have to deal with her’. However, as the findings of the SIAC in February have not been challenged in this appeal, they still stand, and as a result ‘could prove critical in subsequent legislation’ writes John Vassiliou for Free Movement.
Human Rights Claim?
Points 2 and 3 identified by the SIAC (above) were what formed the basis of this judgement. Dealing first with Ms. Begum’s human rights claims under Articles 2 and 3, the Judicial Review was allowed. Flaux LJ commented on the strength of the arguments put forward by Ms. Begum’s representatives and critical of the findings of the SIAC. He questioned why the SIAC had not ‘considered the evidence on behalf of Ms. Begum on the risk of transfer Iraq and Bangladesh’ questioning their reasoning that ‘evidence of risk other than in Syria was irrelevant or speculative’? At paragraph 127, Flaux LJ criticises the SIAC further by stating that ‘it failed to evaluate at all the issue whether the effect of the deprivation decision would prolong Ms. Begum’s detention in the camp (in Syria) where, as the SIAC accepted, conditions were such that it would have breached her Article 3 rights if that Article applied’.
It is considered that, were Ms. Begum not allowed entry to the UK, there is a significant chance that she would be transferred to either Iraq or Bangladesh. Abdul Momen has threatened that she will ‘face the death penalty on arrival’ if transferred to Bangladesh. In Iraq, given her ties to ISIS and their lack of control in the country, it is likely she could face a similar fate. It was this threat that the Court of Appeal was conscious of, and one that the SIAC drew criticism for seemingly ignoring.
Whilst the Judicial Review against the SIAC’s decision was allowed, Flaux LJ held that the SIAC was in a better position to ‘consider the question of risk on the basis of…the totality of the evidence before it’. To justify this decision, at para 129 Flaux LJ gave 2 reasons:
First, the normal course when a claim for judicial review succeeds is to remit the matter to the relevant decision-making body to reconsider its decision in accordance with the judgment of the reviewing court. Secondly, SIAC is better placed than this Court to make findings of fact, particularly in the field of national security. It has well-developed procedures for dealing with such matters, including the availability of cross-examination of witnesses and the holding of CLOSED hearing
The significance of this is that the SIAC will have to regroup to consider Ms. Begum’s appeal on human rights grounds at another hearing with Ms. Begum present.
‘Fair and Effective’ Appeal?
At para 92, Faux LJ extracts the first sentence from the judgement of SIAC in February 2020. It reads:
‘We accept that, in her current circumstances, (Ms Begum) cannot play any meaningful part in her appeal, and, to that extent, the appeal will not be fair and effective.’
Faux LJ, quite rightfully, sees difficulty in the coherency of the judgement from the SIAC. They accept that a ‘fair and effective’ trial will be prevented from taking place but decide that there is no need to remedy this. Sir James Eadie QC, acting for the respondent, ‘placed considerable emphasis on Begum having left the UK of her own free will to go to Syria’ when seeking to justify that decision, labelling it ‘self-inflicted’. However, Faux LJ held that:
‘Whether she did (leave the UK) of her own free will should be irrelevant to the question of the legal and procedural consequences of the of the SIAC’s conclusion that she cannot have a fair and effective appeal’.
However, Faux LJ also disagreed with Mr. Hickman QC’s submission, who acted on behalf of Ms. Begum, stating just because of the SIAC’s submission of the ‘legal and procedural consequences’ of Ms. Begum appealing from Syria does not automatically mean that an appeal ought to be allowed. He maintains that it is the obligation of the court ‘to keep in mind public interest considerations, including the interests of national security…it would be wrong to disregard those matters and allow the appeal without assessing the national security’. In reaching this conclusion, Faux LJ was conscious not to ‘set a dangerous precedent’, and instead safeguard against a blanket policy that could have a serious effect on future judgements, a position that he considered Mr. Hickman QC’s submissions as potentially leading to.
However, whilst this was a consideration that Faux LJ held it was the duty of the court to have, he ultimately found in Ms. Begum’s favour. When reaching this conclusion, Faux LJ compared the precedent set in U2 v Secretary of State for the Home Department  and stressed ‘two important distinctions’. Firstly, the threat posed by Ms. Begum as identified in the independent assessment produced by SIAC ‘is at a lower level of seriousness than in the case of U2’. Secondly, the defendant in the U2 case ‘provided lengthy witness statements and was cross-examined on behalf of the Secretary of State’, something that would likely not be afforded to Ms. Begum in her current environment. Ultimately, Faux LJ held that ‘the difference in the level of seriousness between U2 and Ms. Begum’ meant that the cases could be distinguished, and the judgement did not have to be followed. The court held that ‘the national security concerns about her could be addressed and managed if she returns to the United Kingdom’. At paragraph 121, Faux LJ concludes that ‘the only way in which she can have a fair and effective appeal is to be permitted to the United Kingdom to pursue it’, meaning that Ms. Begum will be allowed entry to the United Kingdom to submit her appeal, pending any appeal on this judgement by the respondent
Daniel Furner of Birnberg Pierce, a solicitor acting for Mrs Begum, stated that:
’Justice cannot be defeated, or indefinitely delayed, because a case is difficult or because national security is engaged. Fundamental rights are not extinguished because a person is abroad, or because the allegations against them are serious.’
Katie Lines, a lawyer from the human rights group Liberty, echoed the sentiment of Mr. Furner, stating that the act of ‘banishing someone is the government shirking its responsibilities’.
Whilst a spokesperson from the Home Office described the decision as ‘very disappointing’ and one that they would look to appeal, I do find myself drawn to the former perspectives. Depriving someone of their citizenship as a result of them leaving the country at such a young age seems rather lazy. If we trust in the British judicial system, we ought to want Ms. Begum to be tried under our laws for the crimes she is alleged to have committed. Through deprivation, one dismisses giving the matter any thought, and instead, more serious questions should be asked regarding how it happened that a young girl held such views and acted in the way she did. This inquiry can be ignited at a British trial, and we as a society can potentially learn something about the environment that caused Ms. Begum to harbour the views she did, and, as a result, safeguard other vulnerable children from this happening to them in the future.