JUSTICE was granted permission to intervene by written submissions in the UK Supreme Court appeal in the case of Begum. The Court considered whether (1) a fair and effective appeal can take place without Begum being granted leave to enter the UK to take part in the substantive Special Immigration Appeals Commission (SIAC) appeal; and (2) whether SIAC should have considered the possibility of violation of articles 2 and 3 ECHR (a policy consideration of the Secretary of State in determining whether to remove citizenship) as a judicial review or on the merits.
Shamima Begum left the UK at the age of 15 with two school friends and travelled to Syria and married an ISIL fighter. She had three children, who all died as infants. She is currently detained in the Al-Roj camp run by the Syrian Democratic Forces, where conditions are very poor. Ms Begum wishes to return to the UK but in February 2019 the Secretary of State deprived her of British citizenship due to the assessed risk to national security and refused her leave to enter the UK to challenge that decision.
JUSTICE’s intervention focussed on the origins of citizenship in the ancient common law of allegiance and its duty of protection, and the extent to which the Executive may frustrate that law without affording the longstanding principles of natural justice, including the protection of the laws of the State, access to the courts and the right to fair, meaningful and effective participation.
The UK Supreme Court heard the cross appeals on 23 and 24 November 2020. We were represented pro bono by Felicity Gerry QC and Eamonn Kelly.
Judgment – 26 February 2021
The Supreme Court held that Ms Begum cannot return to the UK to pursue her appeal against deprivation of her citizenship. It considered that the national security concerns raised by the Secretary of State outweigh her right to a fair and effective hearing. It further held that there was no evidence as to whether the national security concerns could be managed upon Ms Begum’s arrival in the UK. As such, significant weight must be afforded to the Secretary of State’s assessment of the national security concerns. Further, when an individual’s right to a fair hearing comes into conflict with the requirements of national security, the right to a fair hearing will not necessarily prevail – it does not trump all other considerations.
The result is that Ms Begum’s appeal against the deprivation of her citizenship will be stayed until she can play an effective part in it, without the safety of the public being compromised. This was acknowledged by the President of the Supreme Court as “not a perfect solution”.