Begum v Special Immigration Appeals Commission & Ors

Appeals to SIAC under the statutory deprivation-of-nationality scheme are full merits appeals. SIAC must decide for itself, on all the evidence, whether the relevant statutory or policy conditions are met.

An appellant’s inability to participate meaningfully does not automatically require the deprivation appeal to be allowed without considering the merits. But an appeal cannot fairly proceed while that inability continues, and an indefinite stay is not an adequate solution. Where entry to the United Kingdom is the only practical means of securing a fair and effective appeal, leave to enter may be required.

Risk under the Secretary of State’s extra-territorial policy must be independently assessed, including foreseeable transfer and detention risks.

The appellant challenged the Secretary of State’s decision to deprive her of British citizenship and the subsequent refusal of leave to enter the United Kingdom to pursue her appeal. The linked proceedings involved an appeal to SIAC, a human-rights appeal concerning leave to enter, and judicial review proceedings.

SIAC determined preliminary issues against the appellant. It concluded that the deprivation decision had not rendered her stateless, that the Secretary of State had complied with his policy concerning risks of mistreatment, and that although the appellant could not currently participate meaningfully in her appeal, that did not require the appeal to succeed automatically. The Administrative Court dismissed the substantive judicial review claim concerning leave to enter. The central issues before the Court of Appeal were the consequences of an ineffective appeal and the correct approach to assessing the extra-territorial policy.

The appeals were allowed in part. The challenge to SIAC’s conclusion that the deprivation appeal did not have to be allowed automatically was rejected. The appeals concerning refusal of leave to enter were allowed. The judicial review challenge to SIAC’s approach to the Article 2 and Article 3 policy issue also succeeded, and that issue was remitted to SIAC.

1. Fair and effective appeal. SIAC’s finding that the appellant could not play any meaningful part in her appeal while detained in the camp was categorical. The circumstances in which she had left the United Kingdom were irrelevant to the procedural consequences of that finding. They could themselves be examined only through a fair and effective appeal.
2. The inability to participate did not mean that the deprivation appeal had to be allowed without examining the merits. Fairness had to take account of the appellant, the Secretary of State and the public interest in national security. The statutory scheme, considered in G1, L1 and S1, did not provide a general right to an in-country appeal. The relevant principles were not displaced by Kiarie or AN, which concerned materially different statutory schemes. The statement in W2 that SIAC would allow an appeal if presence in the United Kingdom were necessary was directed to the jurisdictional and leave-to-enter issues, and in any event was obiter in the relevant respect.
3. Nor could the appeal fairly proceed while the appellant was unable to participate meaningfully. Striking out the appeal for non-compliance would compound the unfairness, and an indefinite stay would render the statutory appeal meaningless. On the facts, the only legally satisfactory means of securing a fair and effective appeal was to allow the appeals against refusal of leave to enter. The national security concerns could be addressed through criminal proceedings or a TPIM if appropriate.
4. Merits assessment. Appeals under sections 2 and 2B of the Special Immigration Appeals Commission Act 1997 are full merits appeals. SIAC must determine for itself, on the totality of the evidence, whether the Secretary of State’s decision was justified. That applied equally to the Secretary of State’s extra-territorial policy concerning Article 2 and Article 3 risks. The approach in Al Jedda, AS & DD and R (Evans) informed that conclusion.
5. SIAC had wrongly applied judicial-review principles to the policy issue. It had failed to assess independently the evidence concerning possible transfer to Iraq or Bangladesh and the possibility that deprivation might prolong detention in conditions which SIAC accepted would breach Article 3 if applicable. The issue was remitted to SIAC for a de novo determination on all the evidence.

1. Court of Appeal (Civil Division) and Divisional Court. The court allowed the appeals concerning refusal of leave to enter, allowed the judicial review challenge to SIAC’s approach to the Article 2 and Article 3 policy issue, and remitted that issue to SIAC. It rejected the submission that the deprivation appeal had to be allowed automatically because the appellant could not currently participate effectively.
2. Administrative Court. Laing J granted permission for judicial review of the refusal of leave to enter but dismissed the substantive claim, adopting SIAC’s reasoning.
3. Special Immigration Appeals Commission. On 7 February 2020 SIAC determined the preliminary issues against the appellant. It found that the deprivation decision had not rendered her stateless, that the Secretary of State had complied with the mistreatment-risk policy, and that although her appeal could not currently be fair and effective, that did not itself determine its merits.