R v Special Immigration Appeals Commission

An appeal against deprivation of citizenship under section 40(2) of the British Nationality Act 1981 does not permit the appellate tribunal to exercise the Home Secretary’s discretion afresh. It applies administrative-law principles to that discretion, while independently determining any applicable human-rights issue.

An appellant’s inability to participate effectively does not require the appeal to be allowed. Where a fair hearing is temporarily impossible without compromising national security, the appropriate course may be to stay the appeal.

An administrative policy guides rather than replaces statutory discretion. A court determines its meaning, but ordinarily reviews its application to particular facts for rationality. A reviewing court must also respect the executive’s institutional competence and democratic responsibility for national-security assessments.

The Home Secretary deprived Ms Begum of British citizenship on national-security grounds and refused her leave to enter the United Kingdom. She appealed to the Special Immigration Appeals Commission and also brought judicial-review proceedings. SIAC found that she could not participate effectively in the deprivation appeal from her circumstances in Syria, but held that this did not entitle her to succeed automatically.

SIAC dismissed the leave-to-enter appeal, and the Administrative Court dismissed the related judicial-review claim: R (Begum) v Secretary of State for the Home Department [2020] EWHC 74 (Admin). The Court of Appeal and Divisional Court subsequently ordered that leave to enter be granted and remitted the question whether the deprivation decision complied with the Home Secretary’s extra-territorial human-rights policy: R (Begum) v Special Immigration Appeals Commission [2020] EWCA Civ 918; [2020] 1 WLR 4267.

The Supreme Court considered SIAC’s appellate jurisdiction, the consequence of an inability to pursue a fair and effective appeal, the courts’ role concerning national security, and the proper legal approach to an administrative policy.

1. The Home Secretary’s appeals were allowed and Ms Begum’s cross-appeal was dismissed unanimously. Lord Reed gave the judgment, with which Lord Hodge, Lady Black, Lord Lloyd-Jones and Lord Sales agreed. The leave-to-enter appeal and both applications for judicial review were dismissed.

2. An appeal under section 2 of the Special Immigration Appeals Commission Act 1997, arising from the refusal of a human-rights claim, was confined to whether the decision was unlawful under section 6 of the Human Rights Act 1998. SIAC had to determine that question for itself. No Convention ground had been advanced before the Court of Appeal, so it had no basis for allowing the statutory leave-to-enter appeal.

3. On an appeal under section 2B against a decision under section 40(2) of the British Nationality Act 1981, SIAC could not stand in the Home Secretary’s shoes or exercise his discretion afresh. It could examine irrationality, irrelevant or omitted considerations, procedural impropriety, errors of law, findings unsupported by evidence, compliance with section 40(4), and other applicable legal obligations. Where Convention rights applied, SIAC had to assess compatibility independently.

4. National-security judgments were entrusted to the executive. SIAC and the courts had to give appropriate respect to the Home Secretary’s assessment because of his institutional capacity and democratic accountability. The Court of Appeal lacked evidence and jurisdiction to compare the risk posed by Ms Begum with that posed in another case, to decide that arrest or a terrorism-prevention measure would manage that risk, or to substitute its own balance between public safety and effective participation.

5. An inability to present an appeal effectively did not make the underlying decision unfair and did not entitle the appellant to succeed automatically. Fairness operated for both parties. If a temporary impediment made a fair hearing impossible, the proceedings could be stayed until the appellant could participate without compromising public safety. The right to an effective appeal was not a trump card over a vital public interest.

6. The Home Secretary’s extra-territorial human-rights policy remained an administrative policy rather than a rule of law. A policy must be understood correctly and ordinarily followed unless there is good reason to depart from it, but its application to particular facts remains for the statutory decision-maker subject to rationality review. SIAC correctly asked whether the Home Secretary had adequate material and was reasonably entitled to conclude that deprivation would not foreseeably and directly expose Ms Begum to the specified risk. No defect in that reasoning was established.

1. United Kingdom Supreme Court: The Home Secretary’s appeals were allowed and Ms Begum’s cross-appeal was dismissed: R v Special Immigration Appeals Commission [2021] UKSC 7.
2. Court of Appeal and Divisional Court: The Court of Appeal allowed the appeals concerning leave to enter and ordered the Home Secretary to grant entry and provide travel documents. The Divisional Court remitted the policy issue to SIAC but rejected the contention that the deprivation appeal succeeded automatically: R (Begum) v Special Immigration Appeals Commission [2020] EWCA Civ 918; [2020] 1 WLR 4267.
3. SIAC and Administrative Court: SIAC held that the deprivation decision did not render Ms Begum stateless, rejected the policy challenge, held that inability to participate effectively did not determine the deprivation appeal, and dismissed the leave-to-enter appeal: Begum v Secretary of State for the Home Department [2020] HRLR 7. The Administrative Court dismissed the judicial-review claim concerning leave to enter: R (Begum) v Secretary of State for the Home Department [2020] EWHC 74 (Admin).