Opinion: the Shamima Begum appeals - David Allen Green
The FT's legal commentator continues his 'guided tour' series by examining how to read the Shamima Begum judgment. Senior judges have ruled that one of three east London schoolgirls who travelled to Syria in 2015 to join Isis should be allowed to return to the UK to challenge deprivation of her British citizenship
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Hello, my name is David Allen Green, and I have been asked to explain the recent Court of Appeal judgment in the politically sensitive case of Shamima Begum. This judgment was handed down by the Court of Appeal on the 16th of July, and the judgment has caused political controversy. What I will do is use this judgment as a way of showing generally how to read a judgment, because this is a complicated judgment, and also to explain how the court went about deciding this appeal.
This appeal was about depriving somebody of their citizenship. It was not a policy case, by which I mean it wasn't like, for example, the High Speed 2 or the Heathrow expansion cases, where the court is actually looking at a policy decision of the government. Instead, this is a decision about the rights of an individual. So although it is a politically sensitive decision, it is not in its way a policy decision of the courts.
Depriving somebody of their citizenship is quite a onerous sanction, especially when in this case the person was actually born in the United Kingdom, and has never lived in the country where her other deemed citizenship is, which is, in this case, Bangladesh.
This is also a case where the person involved has not actually been charged, prosecuted, or convicted of any crime. But against this, there are national security concerns in this case, which cannot and should not be ignored. Parliament has legislated extensively in this area, including for a specialist tribunal called the Special Immigration Appeals Commission, or SIAC. SIAC has made some preliminary decisions in this case, and it is those decisions which are the subject of this appeal. But those decisions were made in a lengthy and detailed way. And so in this case, what the Court of Appeal is being asked to do is to see whether that specialist tribunal has made the right decisions.
But before we find out what the Court of Appeal decided, we have to find out what the Court of Appeal was asked to decide. Here, SIAC made three preliminary decisions. The first was whether Ms Begum was rendered stateless by the decision to deprive her of British citizenship. The second was whether depriving her a citizenship had the direct and foreseeable consequence of exposing her to mistreatment, which would be a breach of her human rights. Her right to life and for prohibition on torture. The third was whether she would have a fair and effective appeal against this deprivation of citizenship if she was outside the United Kingdom, and in Syria.
On each of these three issues, SIAC decided against her. She, however, had the right to appeal those decisions, and this is what the Court of Appeal is dealing with. The two decisions of the secretary of state, which are fundamental to the case, are set out in paragraph one of the judgement. The first is that on the 19th of February, 2019, there was a decision to deprive her of her citizenship under section 40A of the British Nationality Act, 1981, as amended.
The second decision is the secretary of state's refusal of her application for leave to enter, or LTE. And so what we have are two decisions by the secretary of state, an attempt by Ms Begum to appeal those decisions at SIAC, where SIAC has actually made some preliminary decisions, and now, third in line, is her appeal to the Court of Appeal in respect of the preliminary decisions of SIAC.
The Court of Appeal does not decide issues which are for courts and tribunals at first instance. It is an appeal court, and an appeal court in broad terms, can do one of three things. One, it can reject the appeal and allow the decision of the court or tribunal below to stand. Or it can grant the appeal, reversing the decision of the court or tribunal below. Or it can decide that the court or tribunal below has to retake the decision, so it sends the decision back down for the decision to be made better with guidance from the Court of Appeal.
So here, the Court of Appeal has got to decide what to do with the appeal from SIAC. Does it uphold the decisions of SIAC, does it actually allow the appeal against these decisions, or does it send it back to SIAC to decide again?
This judgment is a long judgment of 129 paragraphs. But it it's divided into parts. The first part is the introduction, setting out the legal issues to be decided. Those are paragraphs 1 to 6. Then, in five short paragraphs, paragraph 7 to 11, you have the personal, factual background to this decision. That she was born in the United Kingdom, although her parents were born in Bangladesh, that she left the United Kingdom when she was 15, that she'd had three children, all of whom have died, and that she is currently in a camp in Syria. Even though this is a very lengthy judgment about a dreadful human situation, the actual factual human background just takes five brief paragraphs.
Paragraphs 12 to 18 set out the position of the government, and paragraphs 19 to 51 set out the essence of the judgment of SIAC, the judgment which is being appealed. And then the next section is the court setting out the submissions of both sides of the case.
For Ms Begum, you've got the submissions from paragraphs 55 to 74, and for the government, you've got the submissions set out in paragraphs 75 to 91. So all this is in the judgment before we even get to the judges making any decisions in this appeal. This shows that the Court of Appeal not only is carefully considering how SIAC made its judgment, but also how the two sides have put forward their arguments.
It isn't as if the Court of Appeal has just gone, yuck, we don't like the decision, this is our decision instead. But there is detailed analysis of how SIAC came to its decision, and how the parties are putting their submissions to the court.
And then from paragraphs 92 to 227, you have the court's analysis of SIAC's judgment, and of the two sides' arguments. And at the very end, like a detective novel, you have the decision, or the revelation, i.e., how the court decided the case, or to use its technical term, how the case was disposed.
And so that is the judgment as a whole. How did the court of appeal go about making their decision in this case? If we go back to paragraph 2, we can see the three preliminary decisions of the tribunal. The first one is in respect of whether the deprivation decision rendered Ms Begum stateless. This is an important, if not fundamental point, because it is not open to any government under international law to deprive somebody of the only citizenship they have.
However, if a person has dual citizenship, then it is open to the British government to deprive them of the UK citizenship, thereby leaving them with only the citizenship of that other country. It is something the government has increasingly done in recent years as a quick and convenient way of removing certain people from the United Kingdom, or making sure that they do not come back. And it is a power which is set out in section 48 of the British nationality act.
So how did the court approach this first issue, where SIAC had decided that it hadn't rendered her stateless? Well, if we go from paragraph 2.1 to paragraph 5, you will see, halfway down paragraph 5, Ms Begum does not seek to challenge the decision on the preliminary issue that it had rendered her stateless. So we do not need to consider that issue further.
And if we go to paragraph 19, you then again see, when the Court of Appeal sets out the SIAC decision, that the SIAC decision had actually set out at some length why it didn't render her stateless. But as already noted, it is not necessary to consider this issue further.
This judgment does not explain why she does not to pursue that appeal. It may well be that the reasoning of SIAC is so compelling that any appeal would be pointless, or it might have been a decision made on perhaps tactical or strategic grounds that she should centre her appeal on stronger legal grounds.
But whatever is being decided by the Court of Appeal in this case, it isn't whether she is being rendered stateless or not. That has already been decided by SIAC as a preliminary issue, and on the face of it, she is not contesting that preliminary decision. So that is what is not being decided.
So what is being decided? Well, the second preliminary issue is whether depriving her of her citizenship would have the direct and foreseeable consequence of putting her into a real risk of mistreatment. And here, we have to have a look at articles 2 and 3 of the European Convention of Human Rights, which respectively protects somebody's right to life, and prohibits torture. These are absolute rights under the ECHR. They are not qualified rights, and if they apply, they provide somebody with protection.
The argument here is that if Ms Begum has her UK citizenship removed then the only citizenship she has is her Bangladeshi citizenship, and in those circumstances there would be a risk of her being tortured, killed, detained, all sorts of unfortunate possible consequences.
How does the court go about deciding this? SIAC had decided against her. The government, as we can see in paragraph 12.1 of the judgement, had said... the SCU is the Special Cases Unit of the government, who actually puts submissions on these sorts of points to the SIAC... the SCU considers there is no substantial ground to believe that there was a real risk of mistreatment, contrary to articles 2 or 3. Against what the government submitted about the risk of mistreatment, SIAC said - and you can see this at paragraph 20 of the judgment - is that they pay tribute to Ms Begum's legal team in amassing the evidence they have on the mistreatment issue. They accept that conditions in the camp, for example, would breach her rights into article 3 if article 3 applied to her case.
And so what SIAC said at this point is they accepted there was a risk of mistreatment, but it was still open to the secretary of state to make the decision that they did. And the reason they were able to do this is set out at paragraph 24 of this judgment, where a Court of Appeal sets out that SIAC approached it on a certain basis. The question for us is whether the secretary of state was entitled on the material before him to decide this issue. 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.
What this means is that SIAC were not going to look at whether the best, the correct decision was made, but only if it was a decision within the range of decisions that were open to the secretary of state to take. SIAC decided that was the case. This is a very light touch with view of the secretary of state's decision.
The Court of Appeal was struck by this. And so if we go now to paragraph 127 of this judgment, you'll see that the Court of Appeal said the specialist tribunal got this wrong. SIAC erroneously approached this issue on the basis that it was applying the principles of judicial review. It did not make an independent assessment of the issue of risk. That is quite a fundamental error by SIAC. It had misdirected itself as to what its powers were, as to what its jurisdiction was. And so on that basis, the Court of Appeal has to say SIAC, you have got this wrong. The Court of Appeal is not saying that depriving her of citizenship will have this effect on her, that she will suffer such mistreatment. What the Court of Appeal is saying is that SIAC, you've got to do your job. You have got to make an independent assessment of the risk. You can't just nod along with what the secretary of state is saying.
Here, the court of appeal will remits the decision back to SIAC to take again. It isn't actually siding with Ms Begum. It isn't saying this is the ground for crushing the deprivation order. No. What it is saying instead is the specialist tribunal set up by parliament has to make this decision properly. This is not an example of the Court of Appeal going off and making a political decision of its own. It is an example of the Court of Appeal deferring to the legislature by insisting that the apparatus put in place by parliament operates properly. On this, the Court of Appeal is just saying that the decision has to be made better, and in accordance with what parliament intended.
And now, we turn to the third issue. This takes up most of the judgment. This is the issue about whether, as set out in paragraph 2.3, Ms Begum could have a fair and effective appeal against the decision to deprive her of citizenship if she is outside of the United Kingdom. It is the Court of Appeal's decision on this issue which perhaps has led to the most political controversy.
Here, we go from paragraph 2.3 to paragraph 26. We find this extraordinary passage. SIAC concluded that her appeal would not be fair and effective if she could not take part. The Court of Appeal quotes: "we accept that in her current circumstances, A [who was Ms Begum] cannot play any meaningful part in her appeal, and to that extent, the appeal will not be fair and effective."
This is an extraordinary situation. The specialist tribunal has said expressly that the person affected cannot have a fair and effective appeal. But SIAC then decided that this was acceptable, that the process must continue, even though the person affected cannot participate fairly.
SIAC set out three possible ways of dealing with this problem. A problem, itself admitted. One was that the appeal could carry on somehow without her participation. Two, that she could apply for a stay of the appeal, to suspend it until she could take part. Or three, that if she allowed the appeal to continue and didn't comply with an order of the tribunal, that it would then be struck out and then somehow, she could try and reinstate it.
These were the three ways which SIAC thought the problem could be dealt with. How did the Court of Appeal approach this? Here we need to go to paragraph 95 to see how the Court of Appeal did approach it. There is a key sentence in paragraph 95. Fairness is not one-sided, and requires proper consideration to be given, not just to the position of Ms Begum, but the position of the secretary of state.
What the Court of Appeal is saying here is that if they granted Ms Begum's appeal, just because she cannot participate, that would be unfair to the secretary of state. But on the other hand, if she cannot participate, that would be unfair to her. There would be unfairness on both sides. And so what the Court of Appeal is saying here, contrary to the political criticism the court has had in this judgment, is that it doesn't want to just grant her an appeal. It wants to make sure that there is a decision which is fair to both Ms Begum and to the government. And the three courses of action put forward by SIAC failed those tests. Each of the approaches proposed by SIAC for dealing with this problem were unfair.
As set out at paragraph 113, Lord Justice Singh said during the actual hearing "it is difficult to conceive of any case where a court or tribunal has said we cannot hold a fair trial, but we're going to do so anyway." In paragraph 112, the Court of Appeal says "the first and third of the courses proposed by SIAC can be swiftly dismissed as failing to answer the issue of unfairness and lack of effectiveness of the appeal. With due respect to SIAC [which is always an ominous phrase in any legal judgment] it is unthinkable that having concluded that Ms Begum could not take any meaningful part in her appeal, so that it could not be fair and effective, she should just continue with her appeal nonetheless."
And then at paragraph 114, the third course equally does not alleviate, let alone remedy, the unfairness. What is contemplated is that Ms Begum is required to continue with the appeal, directions are made, and then she has to apply to reinstate. That seems to me to be no more than a refinement of the first course. Just carrying on with the appeal, even though SIAC has found that she cannot have a fair and effective appeal. So that was not acceptable.
So that only left the second course, or so it seems. The second course it actually applies for and is granted a stay of appeal in the hope that at some indeterminate point in the future, she is in a better position to take part in the appeal. And note what now follows. This was the course urged upon us by the government, specifically to avoid what was described as the ultimate conundrum of allowing the appeal of the decision to not let her back in the country. But the Court of Appeal then note that they had already concluded that it would be unfair just to grant her appeal.
So how could the Court of Appeal solve this? And then at paragraph 116, the court has thought long and hard about whether a stay is a satisfactory answer to the issue. And the Court of Appeal said no, even the second course of action set forward by SIAC is unsatisfactory. And this is because it does nothing to address the foreseeable risk that if she is transferred to Iraq or Bangladesh, that she would have mistreatment. And secondly, at paragraph 117, it was wrong in principle. It would in effect render her appeal against an executive decision to deprive her of her nationality meaningless for an unlimited period of time.
What the Court of Appeal is saying here is that parliament had put in an elaborate regime for dealing with issues like this, including a specialist tribunal, and to just frustrate that by staying the case indefinitely would be to frustrate that parliamentary intention. What we have here is the situation where the specialist tribunal has decided that it would be unfair to allow the case to continue, but will let the case continue, has provided three possible ways for that to happen. And the Court of Appeal has gone through each of those three ways and said each way is not acceptable.
On the face of it, there is nowhere else for the Court of Appeal to go. But the Court of Appeal does find a way out of this problem. It does find a way of solving the ultimate conundrum. And it does so by saying that she should be allowed to appeal the decision to not allow her back into the country. This would mean she could participate in the proceedings. However, this would have implications. You would be allowing somebody who the secretary of state would like to exclude from the country, who they would like to deprive of their citizenship, back into the country to take part in those proceedings. This is the politically controversial decision. Why did the Court of Appeal make this decision?
It made its decision, I think, for two reasons. First of all, given that SIAC itself had admitted that the proceedings would be unfair, the real alternative to finding a way through this problem would be to just grant her appeal against depriving her of citizenship because she couldn't participate. The Court of Appeal decided that was not acceptable. It would be unfair to the secretary of state, to the government, to just allow an appeal of somebody affected because they weren't able to participate. It would undermine what the secretary of state has the power to do. They had already decided that was not an option.
But the only other way of dealing with this would be to allow her to participate by allowing her back into the country. But she is an alleged terrorist. How would that be possible? The way the Court of Appeal solves this problem is in paragraphs 120 and 121. If the security service and the director of public prosecutions consider that the evidence and public interest tests for a prosecution for terrorism offences are met, she could be arrested and charged upon her arrival in the United Kingdom, and remanded in custody. Or if that was not feasible, she could be made the subject of a terrorism prevention and investigation measure, or TPIM.
And so if she was to come back into the jurisdiction, the public interest and the national security issues could be dealt with by either prosecuting her, charging her, or putting her under a TPIM.
Paragraph 121. "Notwithstanding the national security concerns about Ms Begum, I have reached the firm conclusion that given that the only way she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns so that the leave to enter appeals should be allowed."
And so what the Court of Appeal is doing here is probably making the only decision open to it to keep these proceedings on the road. Because otherwise, if she was not able to participate in this process, it may well be that she could successfully appeal against the process as a whole. Note that the Court of Appeal said that it was on the facts of this case, if the person involved was more dangerous and the government was able to show that they were more dangerous, then it would have made a different decision.
Alternatively, if it was a case where there was no possibility of her participating in proceedings because she, for example, was detained permanently elsewhere, then the court may have had to have made a different decision. But on the current facts, it appeared that it would be possible for her to return, and given that possibility, and given that the national security risks could be managed by either charging her or putting her under a TPIM, then that was the right way of allowing the procedure to carry on so that there could be a decision as to whether her appeal was sound or not.
The Court of Appeal did not have an easy job in this case. They had a situation where even the specialist tribunal had put forward three possible courses of action, none of which were acceptable. All of which would be unfair. The alternative was to just grant her appeal, which again, would just be unfair. It would pre-empt the decision which SIAC had to make.
Here, the Court of Appeal made a detailed decision based on analysis of the government's and Ms Begum's lawyers' submissions. It came to the conclusion that allowing the process of the specialist tribunal to continue was paramount. But it could only carry on if it was a fair process. And what the Court of Appeal did in this case was to ensure that the process could continue on a fair basis.
The alternatives of allowing her appeal outright, or allowing the process to go ahead when it was admitted by the tribunal itself to be unfair, were both unacceptable. This is the sort of decision a court of appeal is often invited to make. It is a balancing act, as with the scales of Lady Justice on the top of Old Bailey and other judicial buildings around the world.
On one hand, there were certain outcomes. On the other hand, there were other outcomes. What was the correct balance? It may have been a decision which is difficult for many to accept. To allow somebody accused of terrorism back in the jurisdiction. But the alternatives of just allowing her appeal, or to allow a process to continue, were more unacceptable. And that is why the Court of Appeal had to make the decision it did.
The government is seeking to appeal the decision to the Supreme Court. It may well be that the Supreme Court find another way of balancing these competing interests. But what cannot be said is that the Court of Appeal came down on one side or the other in a political fashion. If anything, it actually went out of its way to balance the two sides and not to favour one or the other.