R v Special Immigration Appeals Commission

The Supreme Court allowed the Secretary of State's appeals and dismissed Ms Begum's cross-appeal. The court held that SIAC does not stand in the shoes of the Secretary of State when reviewing a deprivation decision under section 40(2) of the British Nationality Act 1981; rather SIAC reviews the Secretary of State's exercise of discretion by reference to ordinary public law principles (for example whether the Secretary of State acted in a way in which no reasonable decision‑maker could have acted, took into account irrelevant matters or disregarded matters to which weight should have been given), together with any specific legal duties such as section 6 of the Human Rights Act 1998 or the statutory prohibition against rendering a person stateless (section 40(4)).

The court held that the Secretary of State’s extra‑territorial human rights policy is an administrative policy and not a rule of law; compliance with it is amenable to challenge on ordinary public law grounds but the application of the policy to particular facts is primarily for the Secretary of State and reviewable on Wednesbury/type public law grounds. The court also held that an inability to participate effectively in an appeal from abroad does not automatically mean the deprivation appeal must be allowed; where a fair hearing is impossible the proper course may be a stay, adjournment or other case‑management step rather than automatic allowance.

This appeal concerned three linked sets of proceedings arising from the Home Secretary's decision to deprive Shamima Begum of British citizenship, and his refusal of her application for leave to enter the United Kingdom so that she could participate in related proceedings.

Background and procedural posture

• On 19 February 2019 the Home Secretary made a deprivation order under section 40(2) of the British Nationality Act 1981 and issued a certificate under section 40A(2), directing an appeal to SIAC under section 2B of the Special Immigration Appeals Commission Act 1997.
• Ms Begum also applied for leave to enter the UK under section 3 of the Immigration Act 1971; that application included a human rights claim within section 113 of the Nationality, Immigration and Asylum Act 2002. The Home Secretary refused leave to enter and certified relevant material under section 97(3) of the 2002 Act, so that an appeal against the human rights refusal lay to SIAC under section 2 of the 1997 Act.
• SIAC heard preliminary linked issues and decided (inter alia) not to permit de novo re‑taking of the Secretary of State’s discretionary decision on the basis contended for by Ms Begum. The Administrative Court and the Court of Appeal gave differing treatments of aspects of SIAC's approach and of the LTE refusal; the Court of Appeal directed the Secretary of State to grant leave to enter. The Secretary of State obtained leapfrog permission and appealed to the Supreme Court; Ms Begum cross‑appealed.

Reliefs sought and issues

• Nature of claims: appeals and judicial review challenging (a) the application of the Secretary of State’s extra‑territorial human rights policy to the deprivation decision; (b) the refusal of leave to enter on grounds that without entry Ms Begum could not have a fair and effective appeal; and (c) related orders made by SIAC and the Administrative Court.
• Key issues for the Supreme Court: (i) the proper scope of SIAC’s jurisdiction on appeals under sections 2 and 2B of the 1997 Act; (ii) whether SIAC should apply principles of administrative law or decide issues on the merits as primary decision‑maker; (iii) whether inability to litigate effectively from abroad requires automatic allowance of a deprivation appeal or grant of leave to enter; (iv) whether the Divisional Court and Court of Appeal erred in their approaches.

Court’s reasoning (concise)

• The court analysed the statutory scheme and authorities and concluded that SIAC’s jurisdiction on an appeal under section 2B against a section 40(2) deprivation decision is appellate in nature but must apply public law principles when reviewing the Secretary of State’s exercise of discretion; SIAC does not itself exercise the Secretary of State’s statutory discretion except where statute expressly empowers it to do so.
• Where human rights are directly engaged under the Human Rights Act, SIAC must determine compatibility objectively on its own assessment; but where the Secretary of State has adopted an internal policy to guide his exercise of discretion, that policy produces administrative‑law consequences (for example legitimate expectation, need to follow policy or rational explanation for departure), and the court reviews compliance with the policy on ordinary public law grounds, distinguishing legal duties from internal policies.
• The court rejected the proposition that inability to take part in an appeal from outside the United Kingdom automatically requires allowance of the deprivation appeal. If a fair hearing is impossible, the appropriate responses include stay, adjournment, striking out where justice cannot be done, or other case‑management measures; automatic success would be unjust to the respondent and contrary to the statutory scheme.

Appeals allowed (Secretary of State) and cross‑appeal dismissed (Ms Begum). The Supreme Court held that (1) SIAC’s role on an appeal under section 2B is appellate and governed by public law principles rather than a de novo re‑making of the Secretary of State’s discretionary decision; (2) the Secretary of State’s extra‑territorial human rights practice is an administrative policy, enforceable by judicial review principles but not itself a source of an independent right requiring SIAC to take the Secretary of State’s place; and (3) inability to participate effectively in proceedings from abroad does not automatically entitle the appellant to have the deprivation decision set aside or to be granted leave to enter; case‑management measures may be appropriate where necessary to protect national security and the interests of justice.

On appeal from the Court of Appeal and Divisional Court: R (Begum) v Special Immigration Appeals Commission [2020] EWCA Civ 918 ; [2020] 1 WLR 4267 (Court of Appeal and Divisional Court decisions considered). Leapfrog certificate granted under section 12 of the Administration of Justice Act 1969 to permit appeal directly to the Supreme Court.