Begum (Respondent) v Secretary of State for the Home Department (Appellant)
[2021] UKSC 7
THE COURT ORDERED THAT:
1. The CONFIDENTIAL witness statement of Daniel Furner dated 30 August 2019 and its
exhibits shall remain confidential to the parties and the court and, subject to further order of the
court, shall not be available for inspection.2. The witness relied on by Ms Begum, witness B, be granted anonymity in relation to the conduct
of these proceedings and be identified only as “Witness B” and nothing may be published which,
directly or indirectly, identifies Witness B as a witness in these proceedings.
3. The steps taken on behalf of the Secretary of State and Her Majesty’s Government to facilitate
Ms Begum’s involvement in the deprivation appeal, as described in the Witness Statements of
Lauren Cooper dated 12 October 2020 and 5 November 2020, shall be confidential and no party or other person shall publish or disclose the same.
Hilary Term
[2021] UKSC 7
On appeal from: [2020] EWCA Civ 918
Appellant (SSHD) Respondent/Appellant (Begum)
Sir James Eadie QC Lord Pannick QC Jonathan Glasson QC Tom Hickman QC David Blundell QC Jessica Jones
(Instructed by The (Instructed by Birnberg Peirce
Government Legal Ltd) Department)
Special Advocates Intervener (1)
(written submissions only) Professor Guglielmo Verdirame QC Angus McCullough QC Jason Pobjoy
Adam Straw Belinda McRae
(Instructed by The (Instructed by Leigh Day (London)) Government Legal Department)
Intervener (2)
Richard Hermer QC
Ayesha Christie
(Instructed by Liberty)
Intervener (3)
Felicity Gerry QC
Eamonn Kelly
(Instructed by JUSTICE)
Interveners:-
(1) UN Special Rapporteur on Counter-Terrorism (written submissions only) (2) Liberty (3) JUSTICE LORD REED: (with whom Lord Hodge, Lady Black, Lord Lloyd-Jones and
Lord Sales agree)
Introduction
1. On 19 February 2019 the Home Secretary, the Rt Hon Sajid Javid MP, wrote to Shamima Begum in the following terms:
“As the Secretary of State, I hereby give notice in accordance
with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.
The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that
such an order will not make you stateless.”
I shall refer to that decision as the deprivation decision. On the same date, Mr Javid
made an order that Ms Begum “be deprived of her British citizenship on grounds of
conduciveness to the public good”.2. Mr Javid also certified, pursuant to section 40A(2) of the British Nationality
Act 1981 (“the 1981 Act”), that his decision had been taken partly in reliance on
information which in his opinion should not be made public in the interests of national security and in the public interest. The consequence of that certificate was
that Ms Begum’s right of appeal against the decision lay to the Special Immigration
Appeals Commission (“SIAC”), under section 2B of the Special Immigration
Appeals Commission Act 1997 (“the 1997 Act”), rather than to the First-tier
Tribunal (“the Tribunal”), under section 40A of the 1981 Act. Ms Begum appealed
against the decision to SIAC under section 2B. I shall refer to that appeal as the
deprivation appeal.3. On 3 May 2019 Ms Begum made an application for entry clearance and leave to enter the United Kingdom outside the scope of the Immigration Rules, under
section 3 of the Immigration Act 1971 (“the 1971 Act”). The basis on which she
made this application meant that it included, but was not limited to, a human rights claim, within the meaning of section 113 of the Nationality, Immigration and
Asylum Act 2002 (“the 2002 Act”). That provision defines a human rights claim as:
“… a claim made by a person to the Secretary of State at a place
designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under
section 6 of the Human Rights Act 1998 …”
Ms Begum’s application was made on the understanding that, following the
judgment of the Court of Appeal in R (W2) v Secretary of State for the Home
Department [2017] EWCA Civ 2146; [2018] 1 WLR 2380 (“W2”), where a person
claims that she cannot have a fair and effective appeal from a decision depriving her of citizenship from outside the United Kingdom, she should request leave to enter and, if it is refused, challenge that decision.
4. On 13 June 2019 Mr Javid refused Ms Begum’s application for leave to enter
outside the Immigration Rules, on the ground that she had failed to comply with a requirement, imposed as a matter of policy in relation to applications of that kind, that she should provide a record of her fingerprints and a photograph of her face. He refused the part of her application which involved her human rights claim on the
basis that the European Convention on Human Rights (“ECHR”) had no application
to her and that, even if it had applied, there was no evidence that the refusal of leave to enter would result in a breach of her Convention rights. I shall refer to the decision to refuse leave to enter as the LTE (leave to enter) decision.
5. Mr Javid also certified, pursuant to section 97(3) of the 2002 Act, that his decision had been taken wholly or partly in reliance on information which in his opinion should not be made public in the interests of national security and in the
public interest. The consequence of that certificate was that Ms Begum’s right of
appeal against the LTE decision lay to SIAC, under section 2 of the 1997 Act, rather
than to the Tribunal, under section 82(1) of the 2002 Act.6. Ms Begum appealed against the LTE decision to SIAC so far as concerned her human rights claim and, since there was no general right of appeal to SIAC in respect of that decision, also challenged the LTE decision in the Administrative Court by means of an application for judicial review, in accordance with her advisers’ understanding of W2: that is to say, on the basis that she could not have an
effective appeal against the deprivation decision unless she was granted leave to enter the United Kingdom, with the consequence, it was argued, that the Secretary of State was obliged to grant her such leave.
7. Following a directions hearing on 11 June 2019, the chairman of SIAC, Elisabeth Laing J, made an order dated 13 August 2019 directing that the deprivation appeal and the LTE appeal should be linked, and that there should be a hearing to determine three issues. The issues are recorded in somewhat different terms in the
order and in SIAC’s subsequent judgment, but the parties agree that they were:
(1) Whether the deprivation decision rendered Ms Begum stateless. (2) Whether the deprivation decision or the LTE decision was contrary to
the Secretary of State’s extra-territorial human rights policy (explained in
para 21 below) because it exposed her to a risk of death or of inhuman or
degrading treatment.(3) Whether she could have a fair and effective appeal against the deprivation decision from outside the United Kingdom and in Syria, and, if not, whether her appeal should be allowed on that ground alone.
The hearing on those issues was ordered to take place concurrently with the hearing of the LTE appeal.
8. Elisabeth Laing J, sitting in the Administrative Court, also ordered a “rolled
up” hearing of Ms Begum’s application for permission to apply for judicial review
of the LTE decision and, if the application were granted, of her application for judicial review. That hearing proceeded concurrently with the hearing before SIAC.
9. On 7 February 2020 SIAC (Elisabeth Laing J, Upper Tribunal Judge Blum and Mr Roger Golland) handed down a judgment drafted by Elisabeth Laing J, holding that the deprivation decision did not make Ms Begum stateless, that the Secretary of State did not depart from his policy when he made the deprivation decision, and that although Ms Begum could not have an effective appeal against that decision in her current circumstances, it did not follow that her appeal succeeded. SIAC also decided that the LTE appeal should be dismissed: Begum v Secretary of State for the Home Department (Appeal No SC/163/2019) [2020] HRLR 7. On the same date Elisabeth Laing J handed down a judgment in the Administrative Court, holding that Ms Begum should be granted permission to apply for judicial review of the LTE decision, but that her application for judicial review should be dismissed: R (Begum) v Secretary of State for the Home Department [2020] EWHC 74 (Admin).
10. Ms Begum appealed to the Court of Appeal under section 7 of the 1997 Act
against SIAC’s decision to dismiss the LTE appeal. She also appealed to the Court of Appeal against the Administrative Court’s decision to dismiss her application for
judicial review of the LTE decision. She could not appeal against SIAC’s decision
in the deprivation appeal, because there had not yet been a final determination of that appeal, and no appeal therefore lay under section 7 of the 1997 Act. Instead, she
challenged SIAC’s decision in that appeal, so far as relating to the second and third
issues only, in the Administrative Court, by means of an application for judicial review. That application was heard, concurrently with the hearing before the Court of Appeal, by a Divisional Court comprising the same judges as comprised the constitution of the Court of Appeal.
11. On 16 July 2020 the Court of Appeal and Divisional Court handed down a judgment given by Flaux LJ, with which King and Singh LJJ agreed: R (Begum) v
Special Immigration Appeals Commission (UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While
Countering Terrorism intervening) [2020] EWCA Civ 918; [2020] 1 WLR 4267.
The Court of Appeal allowed Ms Begum’s appeal against SIAC’s decision in the
LTE appeal, and her appeal against Elisabeth Laing J’s decision to dismiss the
application for judicial review of the LTE decision. It ordered the Secretary of State to grant Ms Begum leave to enter the United Kingdom and to provide her with the
necessary travel documents. The Divisional Court allowed Ms Begum’s application
for judicial review of SIAC’s decision on the second issue in the deprivation appeal,
concerning the Secretary of State’s policy, and remitted that issue to SIAC for re-
determination. It dismissed Ms Begum’s application for judicial review of SIAC’s
decision on the third issue in the deprivation appeal, namely whether her appeal should automatically be allowed if leave to enter the United Kingdom was refused.
12. The present Home Secretary, the Rt Hon Priti Patel MP, now appeals to this court against the decisions of the Court of Appeal and the Divisional Court in relation to all of these matters (a leapfrog certificate having been granted by the Divisional Court under section 12 of the Administration of Justice Act 1969), with
the exception of the Divisional Court’s decision on the third issue in the deprivation
appeal, on which she was successful. Ms Begum cross-appeals in relation to that matter (again with the benefit of a leapfrog certificate). The order requiring the Secretary of State to grant Ms Begum leave to enter and to provide her with the necessary travel documents has been stayed until further order.
13. This court therefore has before it appeals in three separate sets of
proceedings:
(1) First, the Secretary of State has appealed against the Divisional
Court’s decision to allow Ms Begum’s application for judicial review of
SIAC’s decision concerning the Secretary of State’s policy. The issue arising
in that appeal is whether the Divisional Court was wrong to conclude that SIAC had erred in determining that issue by applying principles of administrative law. There is also a cross-appeal in those proceedings by Ms Begum. The issue arising in the cross-appeal is whether the Divisional Court was wrong to reject her argument that the deprivation appeal should automatically be allowed if it could not be fairly and effectively pursued as a consequence of the refusal of her application for leave to enter the United Kingdom.
(2) Secondly, the Secretary of State has appealed against the Court of
Appeal’s decision to allow Ms Begum’s appeal against SIAC’s decision
dismissing the LTE appeal, and to order that leave to enter must be granted. The issue arising in that appeal is whether the Court of Appeal was wrong to conclude that leave to enter must be granted to Ms Begum because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision.
(3) Thirdly, the Secretary of State has appealed against the Court of
Appeal’s decision allowing Ms Begum’s appeal against Elisabeth Laing J’s
decision to dismiss the application for judicial review of the LTE decision, and ordering the Secretary of State to grant Ms Begum leave to enter the United Kingdom. The issue arising in that appeal is, again, whether the Court of Appeal was wrong to conclude that leave to enter must be granted to Ms Begum because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision.
14. The court has received written submissions by three interveners, as well as the parties: the United Nations Special Rapporteur on Counter-Terrorism, Liberty,
and JUSTICE. This judgment will focus on the parties’ submissions, but those made
by the interveners have also received careful consideration.
The factual background
15. These appeals do not turn on the facts of Ms Begum’s case. It is, however,
necessary to understand some aspects of the factual background, including in particular the advice which the Secretary of State received before making the decisions in question.
The background to the deprivation decision
16. On 19 February 2019 the Home Secretary was invited by his officials to deprive Ms Begum of her British citizenship on the basis that it would be conducive to the public good, due to the threat that she was assessed to pose to national security. The submission before him, which included an assessment by the Security Service, advised him that Ms Begum was born in the United Kingdom in 1999 and possessed both United Kingdom and Bangladeshi citizenship. She was said to have travelled to Syria in February 2015, when she was 15 years old, and aligned with ISIL (the so-called Islamic State of Iraq and the Levant). Although she travelled there as a minor, she had remained in ISIL-controlled territory since turning 18. Media reports indicated that, following her arrival in the ISIL-controlled city of Raqqa, she had applied to marry an ISIL fighter. She had had three children, two of whom had died (the third also subsequently died). She was understood to be held in the Al-Hawl Internally Displaced Persons Camp in Syria, which was controlled by the Syrian
Democratic Forces (“SDF”). The Security Service considered that any individual
assessed to have travelled to Syria and to have aligned with ISIL posed a threat to national security. It was noted that individuals, such as Ms Begum, who were radicalised as minors might be considered victims. That did not, however, change the threat which the Security Service assessed Ms Begum as posing to the United
Kingdom. It did not justify putting the United Kingdom’s national security at risk
by not depriving her of her citizenship.
17. The material provided by the Security Service included a detailed statement dated April 2017 on the threat to national security from UK-linked individuals who had travelled to ISIL-controlled territory to align with ISIL. It explained that,
following ISIL’s declaration of a caliphate in June 2014, it had encouraged
individuals to travel to Syria and Iraq to align with the group on a permanent basis.
The Security Service’s assessment was that anyone who had travelled voluntarily to
ISIL-controlled territory to align with ISIL since the declaration of the caliphate was aware of the ideology and aims of ISIL and the attacks and atrocities that it had carried out. As such, they were assessed to have made a deliberate decision to align themselves with the group and its ideology in support of its terrorism-related activity. The primary role for most women who travelled to join the group was as wives of fighters and mothers of their children, raising the next generation of fighters and citizens of the caliphate. Anyone who travelled to ISIL-controlled territory, even to fill non-combatant roles, was actively supporting a terrorist organisation that was engaged in mass murder and grave human rights abuses, with an agenda to intimidate and attack governments and citizens globally.
18. The Security Service advised that the threat from individuals who returned to the United Kingdom from ISIL-controlled territory could manifest itself in a number of ways: (1) involvement in ISIL-directed attack planning, (2) involvement in ISIL- enabled attacks, (3) radicalising and recruiting UK-based associates, (4) providing support to ISIL operatives, and (5) posing a latent threat to the United Kingdom.
19. In relation to the first of these possibilities, the Security Service’s assessment
was that the United Kingdom was a priority target for ISIL terrorist activity. In relation to the second possibility, the statement noted that ISIL encouraged women to carry out attacks. Any individual, male or female, who returned to the United Kingdom having spent a prolonged period of time in ISIL-controlled territory was likely to have developed the capability to carry out an attack. In relation to the third possibility, there was a risk that individuals who returned to the United Kingdom from ISIL-controlled territory might inspire, encourage or provide support to those who had not travelled there to carry out attacks. In relation to the fourth possibility, the Security Service considered that individuals who returned to the United Kingdom from ISIL-controlled territory might provide support to ISIL, for example as couriers or by helping to plan or carry out an attack in the United Kingdom. They were likely to have developed contacts in ISIL, who might then direct them to undertake support activities in the United Kingdom. Known examples were cited as evidence of each of these risks.
20. The Home Secretary was also provided with an updated statement by the Security Service dated March 2018. It maintained the assessment set out in the
earlier statement, and in particular its conclusion that “the national security threat
from UK-linked ISIL-aligned individuals would increase significantly if they
returned to the UK”.
21. The submission to the Home Secretary also noted that it had been stated in a
memorandum during the passage of the Immigration Act 2014 (“the 2014 Act”),
when the Home Secretary was the Rt Hon Theresa May MP, that:
“[T]he Secretary of State has a practice of not depriving
individuals of British citizenship when they are not within the
UK’s jurisdiction for ECHR purposes if she is satisfied that
doing so would expose those individuals to a real risk of treatment which would constitute a breach of article 2 or 3 if
they were within the UK’s jurisdiction and those articles were
engaged.”
That statement of practice was the subject of the second issue decided by SIAC in the deprivation appeal (see para 7 above). It is referred to in this judgment as the
Secretary of State’s extra-territorial human rights policy, or more simply as the
Secretary of State’s policy.
22. In relation to that policy, the submission advised the Home Secretary that
“there are no substantial grounds to believe that a real risk of mistreatment contrary
to articles 2 (right to life) or 3 (prohibition of torture) will arise as a result of Begum
being deprived of her British citizenship while in Syria”, and that “we do not
consider that any potential article 2/3 risks that may arise in countries outside of
Syria are foreseeable as a consequence of the deprivation decision”.
23. The Home Secretary was also provided with a Mistreatment Risk Statement dated 18 February 2019, prepared by the Security Service, which related specifically
to Ms Begum’s circumstances, and with a cross-Government Mistreatment Risk
Statement for Syria and Iraq, dated 28 January 2019. The Security Service statement
explained that it had been prepared in accordance with the Home Secretary’s policy,
as it had been explicated by SIAC in its case law:
“In its judgment in X2 [X2 v Secretary of State for the Home
Department (Appeal No SC/132/2016) (unreported) given 18 April 2018], SIAC addressed what the Home Secretary is required to assess in order to comply with his stated practice. SIAC concluded that the risks which the Home Secretary is required to assess are risks of harm which would breach articles 2 or 3 of the ECHR (if they applied) that are a direct consequence of the decision to deprive. SIAC described a two- stage test which it drew from the case law of the European
Court of Human Rights: (i) a test of ‘direct consequence’ as the
criterion for establishing state responsibility, liability being incurred if a state takes action which as a direct consequence exposes the individual to the relevant risk; and (ii) a test of
‘foreseeability’ as the criterion for establishing whether there
are substantial grounds for believing the individual would be exposed to the relevant risk. The risk must be both foreseeable
and a direct consequence of the deprivation.”
24. Both the Security Service statement and the cross-Government statement
concluded that “a UK-linked individual who has been deprived of his/her British
nationality is likely to receive broadly the same treatment (for better or worse) as an
individual who retains British nationality”. In relation to the possibility of Ms
Begum’s being transferred to Bangladesh, the Security Service concluded:
“We do not consider that a repatriation to Bangladesh is a
foreseeable outcome of deprivation and as such the Home Secretary may consider that there is no real risk of return - let alone of mistreatment on return - for the purpose of complying
with his practice.”
The background to the LTE decision
25. On 13 June 2019 the Home Secretary received a submission from his officials
recommending that he refuse Ms Begum’s application for leave to enter the United
Kingdom and her human rights claim. The submission and its annexes are before the court in a heavily redacted form, but that is sufficient for the purposes of these appeals.
26. The submission advised that Ms Begum was then located in the Al-Roj Internally Displaced Persons Camp in Syria, where she currently remains. She sought leave to enter the United Kingdom in order to be able to participate effectively in her appeal against the deprivation decision, and in order to avoid the risk of mistreatment. As a consequence of her circumstances, her application for
leave to enter could not be made in accordance with the Home Office’s policy, which
required the provision of a record of her fingerprints and a photograph of her face. Ms Begum sought a waiver of that requirement. It was recommended that the requirement should not be waived, for reasons which were explained. It was noted,
among other matters, that “there is no realistic possibility of her being able to travel
to the UK even if LTE were to be granted”, and that any grant of leave to enter
would not result in her release from detention by the SDF. If her circumstances were to change so that she would be in a position to make use of a visa, a new assessment of the position, and of the requirement to comply with the biometrics policy, would be necessary. Her application for leave to enter, and for the waiver of the biometrics
requirement, was therefore considered to be premature. The Home Secretary’s
decision not to waive the requirement is not in issue in the appeals before this court.
27. In relation to the human rights claim, the submission advised that Ms Begum was no longer a British citizen, and that her circumstances did not engage any extra- territorial application of the ECHR. Furthermore, she had not adduced any evidence to suggest that the refusal of leave to enter would make any difference to her circumstances which was material to the articles of the ECHR which she relied upon, even if they applied.
The jurisdiction and powers of SIAC
28. Before considering the issues in the appeals before the court, it is necessary first to consider in detail the jurisdiction and powers of SIAC on appeals under sections 2 and 2B of the 1997 Act. This is an issue on which differing views were taken by SIAC and the Court of Appeal in the present case. In relation to the appeal under section 2 against the LTE decision, SIAC proceeded on the basis that it was
confined to the question whether there had been a breach of the Secretary of State’s
duty under section 6 of the Human Rights Act 1998. In relation to the appeal under
section 2B of the 1997 Act against the deprivation decision, SIAC’s approach is
encapsulated in para 138 of its judgment, where, in relation to the issue of the
Secretary of State’s compliance with his policy, Elisabeth Laing J stated:
“We remind ourselves that we are not deciding this question on
its merits. We must approach it, rather, by applying the
principles of judicial review.”
29. That passage can be contrasted with para 123 of the judgment of Flaux LJ, with which the other members of the Court of Appeal agreed:
“… SIAC took the wrong approach when it said at para 138
that it would apply the principles of judicial review to the issue of whether the deprivation decision breached the extra- territorial policy of the Secretary of State. The appeals to SIAC under sections 2 and 2B of the 1997 Act are full merits appeals and as such it is for SIAC to decide for itself whether the decision of the Secretary of State in question was justified on the basis of all the evidence before it, not simply determine whether the decision of the Secretary of State was a reasonable and rational one on the material before him as in a claim for
judicial review.”
In support of that view, Flaux LJ cited the judgment of SIAC, given by Mitting J, in Al-Jedda v Secretary of State for the Home Department (Appeal No SC/66/2008) (unreported) given 7 April 2009, para 7, the judgment of the Divisional Court in R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin), para 240, and the judgment of Lord Wilson in Al-Jedda v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2013] UKSC 62; [2014] AC 253, para 30. Counsel for Ms Begum and for Liberty have also cited a number
of other authorities in support of the Court of Appeal’s position. Counsel for the
Secretary of State, on the other hand, supported the position adopted by SIAC.
30. The jurisdiction and powers of SIAC in appeals under sections 2 and 2B are a matter of some complexity, as a result of the interlocking of the provisions in different legislation (notably the 1997 and 2002 Acts), and the frequent amendment to which they have been subject. Care is therefore required in identifying the provisions in force at any relevant time, including the time when relevant authorities were decided.
31. SIAC was created by the 1997 Act in order to enable the United Kingdom to comply with the ECHR as interpreted by the European Court of Human Rights in the case of Chahal v United Kingdom (1996) 23 EHRR 413. That case concerned a deportation decision. There was at that time no right of appeal against such a
decision where the order was made on the grounds that the person’s deportation was
conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and another country, or for other reasons of a political nature. Instead of a right of appeal, there was a right to make representations to an extra-statutory panel appointed by the Home Secretary to advise him. In Chahal, the European Court decided that this procedure was
inadequate to safeguard the deportee’s rights under article 13 and, if he was detained,
article 5(4), of the ECHR.
Appeals to SIAC under section 2 of the 1997 Act
32. Section 2(1) of the 1997 Act gave SIAC jurisdiction to hear appeals against a number of immigration decisions, including deportation decisions and decisions refusing leave to enter the United Kingdom, where they were made on the ground that the measure in question would be conducive to the public good. It has been amended several times. The version of section 2(1) which is currently in force (as amended with effect from 31 August 2006) provides:
“(1) A person may appeal to the Special Immigration
Appeals Commission against a decision if -
(a) he would be able to appeal against the decision under section 82(1), 83(2) or 83A(2) of the Nationality, Immigration and Asylum Act 2002 but for a certificate of the Secretary of State under section 97 of that Act (national security, &c), or
(b) an appeal against the decision under section 82(1), 83(2) or 83A(2) of that Act lapsed under section 99 of that Act by virtue of a certificate of the Secretary
of State under section 97 of that Act.”
An appeal therefore lies to SIAC where an appeal would have lain to the Tribunal under (inter alia) section 82(1) of the 2002 Act but for a certificate of the Secretary of State under section 97 of that Act.
33. The 2002 Act has also undergone repeated amendment. In the version of section 82(1) which is currently in force (as substituted by section 15 of the 2014 Act with effect from 20 October 2014), an appeal lies to the Tribunal against the refusal of a protection claim (section 82(1)(a)), the refusal of a human rights claim (section 82(1)(b)), and the revocation of protection status (section 82(1)(c)). Ms
Begum’s application for leave to enter did not involve either a protection claim or
protection status as defined by section 82(2), but it did involve a human rights claim: see para 3 above. Ms Begum would therefore have had a right of appeal to the Tribunal under section 82(1) against the LTE decision in so far as it refused her human rights claim, but for the certificate issued under section 97(3). In those circumstances, section 2 of the 1997 Act therefore provides Ms Begum with a right of appeal against the LTE decision in so far as it refused her human rights claim.
34. In relation to the grounds upon which an appeal may be brought, and the powers available to SIAC, section 4(1) of the 1997 Act, as originally enacted,
required SIAC to allow any appeal to it under the Act if it considered “(i) that the
decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or
an officer, that the discretion should have been exercised differently”, and otherwise
to dismiss the appeal. That provision was repealed by Schedule 9 to the 2002 Act,
with effect from 1 April 2003.35. Since the repeal of section 4 of the 1997 Act, the position has been governed by section 2(2) of that Act, as substituted by paragraph 20 of Schedule 7 to the 2002 Act. Section 2(2) provides that a number of other provisions of the 2002 Act are to
apply, with any necessary modifications, to “an appeal against an immigration decision under this section”, as they apply to an appeal under section 82(1) of the
2002 Act. According to section 2(6) of the 1997 Act the expression “immigration
decision” has the meaning given by section 82(2) of the 2002 Act. As originally
enacted, section 82(2) set out a list of “immigration decisions”, which included the
refusal of leave to enter the United Kingdom. As substituted by the 2014 Act, however, section 82(2) no longer contains any reference to immigration decisions. (Section 2(6) of the 1997 Act is one of a number of provisions of section 2 containing references to provisions of the 2002 Act which have been repealed: references which are themselves prospectively repealed by paragraph 26 of Schedule 9 to the 2014 Act, which has not yet been brought into force). The parties are however in agreement that section 2(2) of the 1997 Act should be understood as applying to an appeal which lies to SIAC in circumstances where an appeal would otherwise lie to the Tribunal under section 82(1) of the 2002 Act; and that is how I also construe the provision. On that basis, the provisions of the 2002 Act which are listed in section
2(2) of the 1997 Act apply to Ms Begum’s appeal against the refusal of her human
rights claim as part of the LTE decision.
36. The relevant provisions of the 2002 Act include section 84 of that Act, which concerns grounds of appeal, section 85, which concerns the matters to be considered, and section 86, which concerns the determination of the appeal. As originally enacted, section 84 enabled an appeal to be brought on the grounds, inter alia, that the decision in question was not in accordance with the law, and that the person taking the decision should have exercised differently a discretion conferred by immigration rules (section 84(1)(e) and (f)). Section 85(4) allowed the adjudicator (subject to specified exceptions) to consider evidence about any matter which he considered relevant to the substance of the decision, including evidence which concerned a matter arising after the decision. Section 86(3) required the adjudicator to allow the appeal in so far as he thought that the decision was not in accordance with the law or that a discretion should have been exercised differently. Each of those provisions was either repealed or substantially amended by the 2014 Act, with the effect of restricting the scope of appeals and narrowing the powers of the Tribunal and SIAC.
37. In particular, in terms of the version of section 84 which is currently in force (as substituted by section 15 of the 2014 Act with effect from 20 October 2014), an
appeal against the refusal of a human rights claim “must be brought on the ground
that the decision is unlawful under section 6 of the Human Rights Act 1998”. Ms
Begum’s appeal against the LTE decision is therefore limited to the refusal of her
human rights claim, and can only be brought on the ground that the refusal of that claim is unlawful under section 6 of the Human Rights Act. It has been clear since the decision in Huang v Secretary of State for the Home Department [2007] 2 AC
167 that SIAC’s task, in considering an appeal on that ground, is not a secondary,
reviewing, function dependent on establishing that the Secretary of State misdirected himself or acted irrationally, but that SIAC must decide for itself whether the impugned decision is lawful.
Appeals to SIAC under section 2B of the 1997 Act
38. Appeals against deprivation decisions have an entirely separate history, such
decisions not being “immigration decisions” as that expression was understood prior
to the 2014 Act. Rights of appeal were first introduced by section 4(1) of the 2002 Act, which substituted a new section 40 and section 40A for the original section 40 of the 1981 Act with effect from 1 April 2003. Those provisions established a right of appeal to an adjudicator (currently to the Tribunal), unless the Secretary of State certified that the decision had been taken in reliance on information which in his opinion should not be made public in the interests of national security, in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest (here, and subsequently, I employ the masculine pronoun in accordance with the statutory language). Where such a certificate had been issued, section 4(2) of the 2002 Act established a right of appeal to SIAC under section 2B of the 1997 Act.
39. Section 2B has also undergone amendment, as have the other provisions with which it is interlinked. The version which is currently in force provides:
“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 (c 61) (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) (and section 40A(3)(a) shall have effect in relation to appeals under
this section).”
40. There does not appear ever to have been any statutory provision relating to the grounds on which an appeal under section 2B may be brought, the matters to be considered, or how the appeal is to be determined (as mentioned in para 34 above, section 4 of the 1997 Act was repealed on the same date as section 2B came into force; and sections 84-86 of the 2002 Act were not applied to appeals under section 2B). The same appears to be true of an appeal to the Tribunal under section 40A of the 1981 Act.
41. In relation to the scope of the jurisdiction created by section 2B, counsel for Ms Begum and for Liberty referred to some decisions of the Upper Tribunal in which the jurisdiction of the First-tier Tribunal in an appeal under section 40A of the 1981 Act was considered. The earliest of them is Deliallisi v Secretary of State for the Home Department [2013] UKUT 439 (IAC) (unreported) given 30 August 2013, which was concerned with deprivation of citizenship under section 40(3) of the 1981 Act. That provision applies where the citizenship results from registration
or naturalisation and “the Secretary of State is satisfied that the registration or
naturalisation was obtained by means of - (a) fraud, (b) false representation, or (c)
concealment of a material fact”.
42. In that case, the First-tier Tribunal concluded that it had no power to exercise
the Secretary of State’s discretion differently, since such a power could only be
conferred by express statutory provision. Subject to compliance with the Human Rights Act, the scope of an appeal under section 40A of the 1981 Act, in the view of the First-tier Tribunal, was to examine the facts on which the Secretary of State made the decision, examine the evidence and determine whether the basis upon which the decision was made was made out.
43. The Upper Tribunal, chaired by Upper Tribunal Judge Lane, adopted the
opposite approach, holding (para 31) that “[i]f the legislature confers a right of
appeal against a decision, then, in the absence of express wording limiting the nature of that appeal, it should be treated as requiring the appellate body to exercise afresh any judgement or discretion employed in reaching the decision against which the
appeal is brought”. The judge found support for that position in the earlier judgment
of the Upper Tribunal in Arusha and Demushi (Deprivation of Citizenship) [2012] UKUT 80 (IAC); [2012] Imm AR 645, another case concerned with a decision made under section 40(3). However, the judge mistakenly understood the judgment in that
case to have “approved” (para 28) remarks made by the First-tier Tribunal, which
the Upper Tribunal had in reality merely recorded (see paras 11 and 14 of its judgment). The judge also found support in remarks made by a minister in the course of a debate during the passage of the 2002 Act through Parliament, which he
mistakenly treated (para 34) as revealing Parliament’s intention, applying Pepper v
Hart [1993] AC 593 in a manner which was disapproved in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 58-60. The judge also cited textbook authority that a fresh exercise of judgment was excluded if the decision involved a consideration of matters which were non-justiciable, and stated that that could not possibly be said of a decision under section 40: a questionable proposition so far as some decisions under section 40(2) are concerned, but one which can be accepted in relation to section 40(3). However, the apparent reasoning, that (1) an appellate
body’s ability to re-take a discretionary decision is excluded if the subject-matter is
non-justiciable, and (2) the subject-matter of this decision is not non-justiciable, therefore (3) this decision can be re-taken by the appellate body, is fallacious. It depends on the unstated premise that an appellate body can always re-take a discretionary decision unless the subject-matter is non-justiciable: a premise which, as explained below, is incorrect. The judge also referred in Deliallisi to a number of potentially helpful authorities concerned with the scope of appellate jurisdiction, but did not discuss them. It will be necessary to return to some of those authorities.
44. A different approach was adopted by the Upper Tribunal, chaired by Mr C M G Ockelton, in Pirzada (Deprivation of Citizenship: General Principles) [2017] UKUT 196 (IAC); [2017] Imm AR 1257. He stated at para 9 of his judgment that section 84 of the 2002 Act did not apply to appeals under section 40A of the 1981 Act, but added that the grounds of appeal, in appeals under section 40A of the 1981
Act, must be directed to whether the Secretary of State’s decision was empowered by section 40, and that “[t]here is no suggestion that a Tribunal has the power to
consider whether it is satisfied of any of the matters set out in sub-sections (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of
State’s discretion.”
45. In BA (Deprivation of Citizenship: Appeals) [2018] UKUT 85 (IAC); [2018] Imm AR 807 the Upper Tribunal, chaired by Lane J, repeated what had been said in Deliallisi and stated that the passage just cited from Pirzada was accordingly not to be followed. In support of his view of the proper ambit of an appeal under section 40A, Lane J cited the decision of this court in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799. However, that decision was not concerned with an appeal under section 40A, but with an immigration appeal subject to the pre-2014 version of section 84 of the 2002 Act (para 36 above), and was therefore not in point.
46. Before considering the authorities concerned directly with appeals to SIAC, it is worth considering some other authorities concerned with the scope of appellate jurisdiction, most of which were cited in Deliallisi. It is apparent from them that the principles to be applied by an appellate body, and the powers available to it, are by no means uniform. At one extreme, some authorities, concerned with licensing appeals to courts of summary jurisdiction, have held that such appeals should proceed as re-hearings, reflecting the terms of the relevant legislation and the procedures followed by such courts. Other authorities, concerned with appeals to the Court of Appeal against discretionary decisions by lower courts, have held that the scope of the appellate jurisdiction was much more limited. Modern authorities concerned with the scope of the jurisdiction of tribunals hearing appeals against discretionary decisions by administrative decision-makers have adopted varying approaches, reflecting the nature of the decision appealed against and the relevant statutory provisions. Two examples were mentioned in Deliallisi.
47. The first is the decision of the Court of Appeal in John Dee Ltd v Comrs of Customs and Excise [1995] STC 941. The case concerned the jurisdiction of the VAT Tribunal on an appeal from a decision of the Commissioners that a taxpayer should provide security for the payment of tax. The Commissioners had a discretion
to require security, in terms of the relevant legislation, “[w]here it appears to the
Commissioners requisite to do so for the protection of the revenue”. No statutory
guidance was given as to the scope of an appeal against the exercise of the power or as to the powers of the tribunal on such an appeal. The tribunal was, however, given powers to hear evidence and make orders relating to discovery.
48. Neill LJ, with whom the other members of the court agreed, held that the question for the tribunal was not whether it appeared to it that the provision of security was requisite for the protection of the revenue: the statutory condition was whether it appeared to the Commissioners to be requisite. In examining whether that condition was satisfied, the tribunal would, to adopt the language of Lord Lane in Customs and Excise Comrs v J H Corbitt (Numismatists) Ltd [1981] AC 22, 60,
“consider whether the Commissioners had acted in a way in which no reasonable
panel of Commissioners could have acted or whether they had taken into account some irrelevant matter or had disregarded something to which they should have
given weight” (p 952). The tribunal might also have to consider whether the
Commissioners had erred on a point of law. The tribunal could not, however, exercise the statutory discretion itself. The legislature had conferred on the Commissioners alone, and not on the tribunal or the court, the assessment of whether security was requisite. Although that case arose in the circumstances of taxation, the reasoning was not confined to that context, but turned on the nature of the discretion and the fact that it had been confided to the primary decision-maker.
49. The case of Customs and Excise Comrs v J H Corbitt (Numismatists) Ltd, which Neill LJ followed, concerned an appeal to the VAT Tribunal against the
Commissioners’ exercise of their discretion to recognise a taxpayer’s records as
sufficient for the purposes of a statutory scheme. It was in that context that Lord Lane, with whom Lord Diplock, Lord Simon of Glaisdale and Lord Scarman agreed,
said at p 60 that the tribunal could only properly review the Commissioners’ decision “if it were shown that the Commissioners had acted in a way in which no reasonable
panel of Commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given
weight”.
50. The judgment in Deliallisi also mentioned the case of Banbury Visionplus Ltd v Revenue and Customs Comrs [2006] EWHC 1024 (Ch); [2006] STC 1568, where Etherton J distinguished John Dee and held that the appellate jurisdiction was
of wider scope. He identified the critical feature of John Dee as being that “the
statutory pre-condition for the imposition by the Commissioners of security was that
‘it appears to the Commissioners requisite to do so for the protection of the
revenue’” (para 48). In other words, “the legislature had expressly conferred on the
Commissioners alone, and not on the tribunal or the court, the assessment of whether
security was necessary for the protection of the revenue”. In the case before him, on
the other hand, the Commissioners’ discretion was limited to the choice of the means
of achieving a specified statutory objective. A decision of the Commissioners could therefore be challenged on the ground that it did not comply with their duty to achieve that objective: a question which it was fully within the jurisdiction of the appellate tribunal to decide.
51. In the present appeals, counsel for the Secretary of State cited the decision of the House of Lords in the case of Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153. The case was concerned with an appeal to SIAC under section 2 of the 1997 Act against a deportation decision made on the
basis that “the Secretary of State deems [the person’s] deportation to be conducive
to the public good”. In forming that view in relation to Mr Rehman, the Secretary of
State relied on interests of national security.
52. The case was decided at a time when appeals under section 2 were not limited, as they are now, to human rights issues. Section 4(1) of the 1997 Act (subsequently repealed by the 2002 Act) directed SIAC to allow an appeal if it
considered “(i) that the decision or action against which the appeal is brought was
not in accordance with the law or with any immigration rules applicable to the case, or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised
differently”, and otherwise to dismiss the appeal. In the light of the terms in which
its jurisdiction was conferred, SIAC concluded in Mr Rehman’s case that it was
entitled to form its own view as to what was capable of being regarded as a threat to national security, and its own view of whether the allegations against Mr Rehman had been proved, differing in both respects from the view of the Secretary of State.
53. That decision was reversed by the Court of Appeal, whose decision was upheld by the House of Lords. Lord Slynn of Hadley noted that section 4(1) of the
1997 Act empowered SIAC to review all aspects of the Secretary of State’s decision, including his findings of fact (para 11). He stated at para 22 that “when specific acts
which have already occurred are relied on, fairness requires that they should be
proved to the civil standard of proof”. But he immediately added that “that is not the
whole exercise”, stating:
“The Secretary of State … is not merely finding facts but
forming an executive judgment or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and
his conclusion is justified, to a ‘high civil degree of
probability’. Establishing a degree of probability does not seem
relevant to the reaching of a conclusion on whether there
should be deportation for the public good.”
He also stated at para 26 that “the Commission must give due weight to the
assessment and conclusions of the Secretary of State”, since he was “undoubtedly in the best position to judge what national security requires”. The assessment of
what was needed in the light of changing circumstances was primarily for him.
54. Lord Steyn, who agreed with Lord Slynn, also based his decision on the terms
of section 4, citing with approval Lord Woolf MR’s judgment in the Court of Appeal
at para 42:
“SIAC were … correct to regard it as being their responsibility
to determine questions of fact and law. The fact that Parliament has given SIAC responsibility of reviewing the manner in which the Secretary of State has exercised his discretion, inevitably leads to this conclusion. Without statutory
intervention, this is not a role which a court readily adopts.”
(Emphasis added)
As the last sentence indicates, Lord Woolf treated SIAC’s express power to review the merits of the Secretary of State’s exercise of his discretion as the key to the scope
of its jurisdiction.
55. Lord Hoffmann, in a speech with which Lord Clyde and Lord Hutton agreed,
stated at para 49 that the fundamental flaw in SIAC’s reasoning was that, although
it correctly said that section 4 gave it full jurisdiction to decide questions of fact and
law, it “did not make sufficient allowance for certain inherent limitations, first, in
the powers of the judicial branch of government and secondly, within the judicial
function, in the appellate process”. Those limitations, being inherent in the judicial
function and in the appellate process, must also apply to SIAC (and to the Divisional
Court and the Court of Appeal) under the current legislation.56. The limitations upon judicial power arose from the principle of the separation of powers, as Lord Hoffmann explained at para 49:
“However broad the jurisdiction of a court or tribunal, whether
at first instance or on appeal, it is exercising a judicial function and the exercise of that function must recognise the constitutional boundaries between judicial, executive and
legislative power.”
In particular, as Lord Hoffmann went on to state at para 50, although what was meant
by “national security” in the 1971 Act was a question of law (to which the answer
was “the security of the United Kingdom and its people”), the question of whether
something was in the interests of national security was not a question of law:
“It is a matter of judgment and policy. Under the constitution
of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are
entrusted to the executive.”
57. There were, however, at least three important functions which SIAC served under section 4 of the 1997 Act, as Lord Hoffmann explained at para 54. First, the
factual basis for the executive’s opinion that deportation would be in the interests of
national security must be established by evidence. It was therefore open to SIAC to
say that there was no factual basis for the Secretary of State’s opinion. However, as
Lord Hoffmann noted, SIAC’s ability to differ from the Secretary of State’s
evaluation in that respect was limited by considerations inherent in an appellate
process. Secondly, SIAC could reject the Home Secretary’s opinion on the ground
that it was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. Thirdly, an appeal to SIAC might turn upon issues which did not lie within the exclusive province of the executive, such as compliance with article 3 of the ECHR (as given effect by the Human Rights Act).
58. In relation to the first of these points, Lord Hoffmann rejected the concept of a standard of proof, stating at para 56 that the issue was not whether a given event happened but the extent of future risk. The question of whether the risk to national
security was sufficient to justify the appellant’s deportation could not be answered
by taking each allegation seriatim and deciding whether it had been established to
some standard of proof:“It is a question of evaluation and judgment, in which it is
necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious
consequences of deportation for the deportee.”
59. A contrast might be drawn between the hybrid approach favoured by Lord Slynn, as it might be described, under which some facts had to be proved on a balance of probabilities, and the evaluation based on the facts had to be reasonable,
and Lord Hoffmann’s more orthodox (in public law terms) identification of the
relevant questions as being (1) whether the Secretary of State’s evaluation had a
proper factual basis (or, as he also put it, whether there was no factual basis for the
Secretary of State’s opinion), and (2) whether the Secretary of State’s opinion was
one which no reasonable minister could have held. Lord Steyn and Lord Hutton expressed agreement with Lord Slynn; Lord Clyde and Lord Hutton expressed agreement with Lord Hoffmann. Whatever conclusion one might draw as to how the law stood at that time, the subsequent repeal of section 4 of the 1997 Act, and the absence of any similar provision in the current legislation, indicate that it is Lord
Hoffmann’s approach which is now the more relevant. As Lord Woolf observed, in
the passage cited by Lord Steyn (para 54 above), the express powers conferred by section 4 were the basis for attributing to SIAC a role which a court would not readily adopt.
60. Turning next to the limitations of the appellate process, Lord Hoffmann explained at para 49 that:
“They arise from the need, in matters of judgment and
evaluation of evidence, to show proper deference to the
primary decision-maker.”
He pointed out at para 57, first, that SIAC was not the primary decision-maker, and that it was institutionally less well qualified than the Secretary of State:
“Not only is the decision entrusted to the Home Secretary but
he also has the advantage of a wide range of advice from people with day-to-day involvement in security matters which the
Commission, despite its specialist membership, cannot match.”
61. A further factor was the nature of the decision under appeal, which did not
involve a yes or no answer as to whether it was more likely than not that someone
had done something, but an evaluation of risk:
“In such questions an appellate body traditionally allows a
considerable margin to the primary decision-maker. Even if the appellate body prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the
Home Secretary is one which could reasonably be entertained.”
Lord Hoffmann acknowledged that this limited approach might not be necessary in relation to every issue which SIAC had to decide. For example, the approach to whether the rights of an appellant under article 3 of the ECHR were likely to be infringed might be very different.
62. Finally, Lord Hoffmann explained at para 62 that a further reason for SIAC
to respect the assessment of the Secretary of State was the importance of democratic
accountability for decisions on matters of national security:
“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 results 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.”
These points have been reiterated in later cases, including A v Secretary of State for
the Home Department [2004] UKHL 56; [2005] 2 AC 68 (“A”) and R (Lord Carlile
of Berriew) v Secretary of State for the Home Department [2014] UKSC 60; [2015]
AC 945.63. Considering, against that background, the functions and powers of SIAC in an appeal under section 2B of the 1997 Act against a decision to deprive a person of their citizenship under section 40(2) of the 1981 Act, it is clearly necessary to examine the nature of the decision and any statutory provisions which throw light on the matter, bearing in mind that the jurisdiction is entirely statutory.
64. It is also necessary to bear in mind that the appellate process must enable the procedural requirements of the ECHR to be satisfied, since many appeals will raise issues under the Human Rights Act. Those requirements will vary, depending on the context of the case in question. In the context of immigration control, including the exclusion of aliens, the case law of the European Court of Human Rights establishes that they generally include, in particular, that the appellant must be able to challenge the legality of the measure taken against him, its compatibility with absolute rights such as those arising under articles 2 and 3 of the ECHR, and the proportionality of any interference with qualified rights such as those arising under article 8. SIAC
must also be able to allow an appeal in cases where the Secretary of State’s
assessment of the requirements of national security has no reasonable basis in the
and the authority still retains a free exercise of discretion the policy may serve the useful purpose of giving a reasonable
guidance both to applicants and decision-makers.”
See also the fuller discussion of this issue by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407, 496- 497.
124. It follows that policy is not law, and can be consciously departed from. However, a failure by a public authority to follow its policy without good reason can be open to challenge. There are many examples of discretionary decisions being successfully challenged on the ground that the relevant authority failed to have regard to its policy, misdirected itself as to the meaning of its policy, or departed from its policy without good reason. They include authorities on which counsel for Ms Begum relied, such as Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546, para 29. On the other hand, the question how the policy applies to the facts of a particular case is generally treated as a matter for the authority, subject to the Wednesbury requirement of reasonableness. That is most obviously the correct approach where, as in the present case, the application of the
policy expressly depends upon the primary decision-maker’s exercise of judgment (“if she is satisfied that doing so would expose those individuals to a real risk …”).
125. That point is illustrated by the case of R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597, which concerned the Home
Secretary’s policy concerning the use of immigration detention pending removal.
The relevant policy document stated that there was a presumption in favour of temporary release, and that there must be strong grounds for believing that a person would not comply with conditions of temporary release for detention to be justified. It set out a list of factors to be taken into account when considering the need for detention, including the risk of absconding. The Home Secretary decided that the appellant should be detained, for reasons which included that he was otherwise likely to abscond. A challenge to that decision was rejected. The judge found that the decision was a rational one. On appeal, it was argued that the judge was wrong to analyse the matter in terms of the rationality of the decision: the court, it was argued, was not limited to applying a Wednesbury test, but was required to act as the primary decision-maker in deciding on the evidence whether detention was in accordance with the policy.
126. That argument was rejected by the Court of Appeal. Richards LJ, in a judgment with which Maurice Kay and Kitchin LJJ agreed, reviewed a number of previous authorities on the point, and concluded at para 29(viii) that a distinction
had to be drawn between “the question whether the decision-maker directed himself
correctly as to the meaning of the policy (a matter on which the court is the ultimate decision-maker) and the question whether, if so, the decision-maker acted within the limits of his discretion when applying the policy to the facts of the case (a matter in
relation to which a Wednesbury test applies)”. The core reasoning supporting that
conclusion was set out in para 29(iii):
“… the power to detain is discretionary and the decision
whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the
court.”
It followed that “[t]he role of the court is supervisory, not that of a primary decision-
maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power
conferred on him by the statute.”
127. A different approach was adopted by the Divisional Court in the earlier case of R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin), in which the judgment was given by Richards LJ and Cranston J. This case, which was cited by Flaux LJ in support of his approach in the present proceedings, concerned the
Defence Secretary’s policy in relation to the transfer to the Afghan authorities of
suspected insurgents detained by UK armed forces in the course of operations in Afghanistan. The policy required the Ministry of Defence and armed forces to ensure that detained persons were not transferred from UK custody to any nation where there was a real risk at the time of transfer that they would suffer torture or serious mistreatment. It was alleged that transfers could not proceed, consistently with the policy. At para 240, the court recorded counsel for the Defence Secretary as submitting that the relevant question was whether the Secretary of State could properly have concluded that there was no real risk. Counsel accepted, however, that the court would apply anxious scrutiny in answering that question, and that it would make no material difference in practice whether the court proceeded by way of
review of the Secretary of State’s conclusion or made its own independent
assessment of risk on the evidence before it, as it would in a case brought under the
Human Rights Act. The court stated:
“In our judgment, the question whether the Secretary of State’s
practice complies with his policy requires the court to determine for itself whether detainees transferred to Afghan custody are at real risk, and it is therefore for the court to make its own assessment of risk rather than to review the assessment made by the Secretary of State. That is how we have proceeded. We agree, however, that in practice the two approaches lead to
the same answer in this case.”
128. The first sentence in that passage was not supported by reasoning, and it is not apparent from the judgment that the point was fully argued. It did not affect the outcome of the case, as the court made clear in the last sentence. I have difficulty
reconciling what is said there with Richards LJ’s reasoning in the Court of Appeal
in LE (Jamaica). In Evans, the court appears to me to have mistaken its function when it placed itself in the position of the primary decision-maker on a question of fact.
129. Approaching the present case in accordance with the principles explained in para 124 above, it follows that the point in issue was not, as the Court of Appeal supposed, whether Ms Begum was at real risk of treatment which would contravene articles 2 or 3 of the ECHR, if those provisions had been applicable. The issue was whether the Secretary of State, when exercising his discretion under section 40 of the 1981 Act, had acted in compliance with his policy. (That is why, as is common
ground, the issue has to be determined as at the date of the Secretary of State’s
decision, whereas a question whether an administrative decision was compatible with articles 2 or 3, as given effect by the Human Rights Act, would normally be determined by a court or tribunal as at the date of its own decision.) The policy entailed that he should not have decided to deprive Ms Begum of British citizenship
“if [he was] satisfied that doing so would expose [her] to a real risk of treatment
which would constitute a breach of articles 2 or 3 if [she was] within the UK’s
jurisdiction and those articles were engaged”. In order to comply with his policy,
the Secretary of State therefore had to make a judgment as to the degree of risk of such treatment to which Ms Begum would be exposed, on the basis of a body of material which enabled him to make such an assessment, and to decide whether he was satisfied that Ms Begum would be exposed to a real risk of such treatment.
130. That is what the Secretary of State did. He had before him detailed assessments by his officials and by the Security Service, which concluded that there were no substantial grounds to believe that a real risk of mistreatment contrary to articles 2 or 3 would arise as a result of Ms Begum being deprived of her British citizenship while in Syria, and that any potential risks in countries outside Syria were not a foreseeable consequence of the deprivation decision: see paras 22-24 above. Having considered that material, the Secretary of State was not satisfied that depriving Ms Begum of British citizenship would expose her to a real risk of such mistreatment. His conclusion in relation to that issue was open to challenge on the ground of unreasonableness, but SIAC considered the issue on that basis, and rejected the challenge. I can see no defect in its reasoning in relation to that question.
131. For these reasons, I would allow the Secretary of State’s appeal against the
Divisional Court’s decision to allow Ms Begum’s application for judicial review of SIAC’s decision concerning the Secretary of State’s policy, and would dismiss that
application.
Conclusions
132. Standing back from the detail, and summarising the position, it appears to me that the Court of Appeal erred in four respects.
133. First, it misunderstood the role of SIAC and the courts on an appeal against
the Home Secretary’s decision to refuse a person leave to enter the United Kingdom.
As I have explained, the scope of an appeal in such cases is confined to the question whether the decision is in accordance with section 6 of the Human Rights Act. That question does not arise in the present appeal.
134. Secondly, the Court of Appeal erred in its approach to the appeal against the dismissal of Ms Begum’s application for judicial review of the Home Secretary’s
refusal of leave to enter the United Kingdom. It made its own assessment of the requirements of national security, and preferred it to that of the Home Secretary, despite the absence of any relevant evidence before it, or any relevant findings of
fact by the court below. Its approach did not give the Home Secretary’s assessment
the respect which it should have received, given that it is the Home Secretary who has been charged by Parliament with responsibility for making such assessments, and who is democratically accountable to Parliament for the discharge of that responsibility.
135. Thirdly, the Court of Appeal mistakenly believed that, when an individual’s
right to have a fair hearing of an appeal came into conflict with the requirements of national security, her right to a fair hearing must prevail. As I have explained, 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 to the problem in the present case is for the appeal to be stayed until Ms Begum is in a position to play an effective part in it without the safety of the public being compromised. That is not a perfect solution, as it is not known how long it may be before that is possible. But there is no perfect solution to a dilemma of the present kind.
136. Fourthly, the Court of Appeal mistakenly treated the Home Secretary’s
policy, intended for his own guidance in the exercise of the discretion conferred on him by Parliament, as if it were a rule of law which he must obey. As a result, it applied the wrong approach to considering whether the Home Secretary had acted lawfully.
137. For these reasons, and those more fully set out above, I would allow the
Secretary of State’s appeals in each of the proceedings before the court, and dismiss
Ms Begum’s cross-appeal. The result is that (1) Ms Begum’s LTE appeal is
dismissed, (2) her application for judicial review of the LTE decision is dismissed,
and (3) her application for judicial review of SIAC’s preliminary decision in the
deprivation appeal is dismissed.
JUDGMENT
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)
Begum (Respondent) v Secretary of State for the Home
Department (Appellant)
before
Lord Reed, President
Lord Hodge, Deputy President
Lady Black
Lord Lloyd-Jones
Lord Sales
JUDGMENT GIVEN ON
26 February 2021
Heard on 23 and 24 November 2020
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