The UK Supreme Court heard this week (23 and 24 November 2020) the cross appeals in the case of Begum, a case in which JUSTICE intervened by written submission.
The case concerns Shamima Begum who, at the age of 15, left the UK for Syria. Ms Begum married an ISIL fighter and aligned herself with the terrorist group. In 2019, the-then Home Secretary used an exceptional power, provided by section 40A of the British Nationality Act 1981, to strip Ms Begum of her British citizenship. Now detained in a Syrian Democratic Forces detention camp, Ms Begum wishes to return to the UK and exercise her statutory right to appeal the decision to remove her citizenship.
The Government originally denied Ms Begum leave to enter the country to pursue her appeal. The Court of Appeal recently considered this to be unlawful as, in her current circumstances, she could play no meaningful role in the appeal. The Government appealed that decision to the Supreme Court in a case which pits national security against natural justice.
Sir James Eadie QC (for the Secretary of State) began his submissions by outlining the real and serious danger that Ms Begum and others like her pose to Britain’s national security. He said that, by requiring the Government to facilitate her return to the UK, the Court would be undermining the very purpose of the original deprivation of citizenship: to keep her out of the country. He also stressed that the current circumstances Ms Begum found herself in were of her own doing, that her situation could change and that other options were open to Ms Begum in the meantime, such as a stay of her challenge to the removal of citizenship.
Lord Pannick QC (for Ms Begum) responded that deprivation of citizenship is one of the most draconian measures the State has at its disposal. A fair and effective right of appeal, in which the appellant can fully participate, is therefore essential under the common law’s rules of natural justice. Given that Ms Begum could hardly communicate with her lawyers from the detention camp, allowing her return to the UK was therefore necessary to allow her a fair and effective appeal.
Aside from the issue of whether Ms Begum should be granted leave to enter the UK, the Supreme Court also considered two other procedural issues: first, if Ms Begum’s appeal against refusal of leave to enter the UK is refused, whether the deprivation of citizenship order should be allowed; and second, what the proper jurisdiction of the Special Immigration and Asylum Commission (SIAC) is on a review of this kind of case – a full merits review or more narrow judicial review. SIAC is the tribunal to which those deprived of citizenship under the 1981 Act may appeal.
JUSTICE’s written intervention considers the extent to which the Executive may frustrate the right of citizenship 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. We situated our submissions in the ancient common law of allegiance to the Crown and its duty of protection to its subjects, which cannot be arbitrarily removed or resisted by the exercise of a statutory power.
We are being represented pro bono by Felicity Gerry QC and Eamonn Kelly.
A judgment is expected in due course.