Case Comment: Shamima Begum v Special Immigration Appeals Commission & Others [2020] EWCA Civ 918

This comment on Shamima Begum v Special Immigration Appeals Commission & Others[1] addresses the recent decision of the UK Court of Appeal on the consequence of one of the preliminary findings of the Special Immigration Appeals Commission (SIAC) concerning the ability of Ms Begum to have a fair and effective appeal against an order depriving her of British citizenship.

In February of 2015, aged 15, Shamima Begum left the United Kingdom and travelled to Syria to join the ISIL (The Islamic State of Iraq and the Levant).[2] Her location was unknown until Begum was found by journalists in February 2019 in a refugee camp run by the Syrian Democratic Forces (SDF). In February 2019, the former Secretary of State for the Home Department (Home Secretary), Sajid Javid made an order under section 40(2) of the British Nationality Act 1981 depriving Ms Begum of her British citizenship. The written notice of deprivation which was communicated to Begum’s family on 19 February noted that this was done on the grounds of Begum’s travel to Syria and her alignment with the ISIL, which rendered her a national security threat. Ms Begum appealed against the Home Secretary’s deprivation order before the Special Immigration Appeals Commission (SIAC). She also applied to the Home Office for a leave to enter (LTE) the UK so that she could be present at her appeal. However, her application for an LTE was refused.

In SIAC’s February 2020 judgement on preliminary issues in Begum’s case, the SIAC acknowledged that Begum’s circumstances (failure to obtain an LTE) impacted on her ability to meaningfully participate in her appeal of the citizenship deprivation order but concluded that it did not matter that she could not play a meaningful part and that to an extent, her appeal will not be fair and effective.

In its preliminary ruling, SIAC had suggested three alternative options that it considered Begum could rely on, given her failure to obtain an LTE: (a) that she continue with the appeals process as is, without her presence; (b) that she apply for a stay on the appeal proceedings till such an indefinite time when she will be able to participate meaningfully; or (c) if she does not ask for a stay on the appeal, she might fail to comply with a direction under Rule 40 of the 2003 SIAC Procedure Rules, leading the SIAC to strike out the appeal. However, if her circumstances changed in the future, it might be open to her to apply to reinstate her appeal.

One of the two issues before the Court of Appeal was to consider the consequence of this finding. Flaux LJ for the Court considered these options in its decision and found them to be unsatisfactory in resolving the challenge of ensuring a fair and effective appeal for Begum. The issue of national security was also considered by the Court and in its unanimous decision found that in Ms Begum’s circumstances, her presence in the United Kingdom was relevant to her ability to participate meaningfully in the appeal for two principal reasons: (a) her ability to give instructions and communicate with her lawyers and (b) her ability to provide evidence during her appeal before the SIAC. It was the view of the Court that these factors weighed heavily on the question of fairness and justice in the appeal. Further, the Court determined that the principles of fairness and justice took precedence over the national security concerns in the circumstances surrounding Begum’s case. Therefore, the Court ruled that Ms Begum be granted an LTE so that she may access a fair and effective appeal of the decision regarding the deprivation of her citizenship.

In further response to the national security concerns, Flaux LJ suggested that if the Security Services and the Director of Public Prosecutions determined that “the evidence and public interest tests for a prosecution for terrorist offences are met”,[3] Begum could be arrested and charged upon arrival into the UK and placed in custody pending trial. Justice Flaux also suggested that Begum could be made the subject of a TPIM. A TPIM is a legal order that can be used by the Home Secretary to impose restrictions on a person believed “to have engaged in terrorism-related activity, but whom it is feasible neither to prosecute nor to deport.”[4]

A huge concern about the decision to allow Begum a leave to enter the UK is the difficult situation Begum’s presence in the UK would create. For now, Begum is considered an extra-territorial national threat. Once she enters the UK, she will become a domestic threat to national security. This is an outcome that former Home Secretary, Sajid Javid, has expressed concern over following the judgement of the Court on Thursday (16 July 2020).[5] Further, the ruling is likely to have a constraining effect on the extent to which the UK government handles matters of national security as it relates to the deprivation of citizenship and the ability of such individuals to effectively appeal such determinations on their citizenship status.

Following the Court of Appeal ruling, a spokesperson for the Home Office expressed disappointment with the judgement and stated that the Home Office would seek leave of the Supreme Court to appeal the ruling.[6] The spokesperson also expressed that the Home Office would seek a stay on the effects of the Court of Appeals’ ruling pending the outcome of a possible determination by the Supreme Court.[7]

If the Supreme Court grants a leave of appeal on this matter, this would be an important case for the Supreme Court to decide on the contention between the principles of fairness and justice and the national security concerns of permitting a known national threat entry into the UK. As the final appellate court, whatever the outcome of the Supreme Court decision, it will be an important judgement that will affect subsequent jurisprudence, and government practice in this area of law. In the alternative, the Court of Appeal decision means that Begum will be able to be present and participate in her appeal before the SIAC.

[1] [2020] EWCA Civ 918.
[2] Also known as ISIS (Islamic State of Iraq and Syria).
[3] [2020] EWCA Civ 918 at para. 120.
[4] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/411824/IRTL_TPIMs_2014_final_report__web_.pdf
[5] https://twitter.com/sajidjavid/status/1283753115049693184
[6] https://www.theguardian.com/uk-news/2020/jul/16/shamima-begum-wins-right-to-return-to-uk
[7] Ibid.