Begum v Secretary of State for the Home Department (Begum (No.2))

The Court of Appeal dismissed the appeal against the Special Immigration Appeals Commission's decision upholding the Secretary of State's deprivation of citizenship decision made under s 40 of the British Nationality Act 1981. The court applied established principles governing SIAC appeals on national security grounds, emphasising deference to the Secretary of State's evaluative judgment and the limited scope for intervention except for Wednesbury irrationality or legal error.

The court rejected arguments that Article 4 ECHR (trafficking) or related duties under the European anti‑trafficking instruments created an obviously material consideration that the Secretary of State had failed to take into account; it held there was no obligation to repatriate or otherwise treat the appellant as if present in the United Kingdom for purposes of the protective, recovery or investigative duties in the circumstances of this case. The court also rejected the common‑law argument that trafficking (or a credible suspicion of trafficking) was a mandatory consideration for the section 40 assessment.

The court held that SIAC was wrong to conclude that the common law required advance representations prior to a deprivation decision in national security cases, but concluded that any procedural unfairness in this case was immaterial because the outcome would inevitably have been the same. The public sector equality duty in section 149 Equality Act 2010 was held to be subject to the national security exemption in section 192, so the PSED did not invalidate the decision.

This appeal concerned the lawfulness of the Secretary of State's decision of 19 February 2019 to deprive Shamima Begum of British citizenship under s 40(2) of the British Nationality Act 1981, on grounds the Secretary of State was satisfied deprivation was conducive to the public good. The deprivation decision was certified in part on national security grounds and appealed to the Special Immigration Appeals Commission, which dismissed the appeal in open and closed judgments on 22 February 2023. The appellant pursued a challenge to SIAC's dismissal to this Court of Appeal.

Background and facts:

• The appellant, born in the United Kingdom in 1999, travelled to Syria as a minor in February 2015 and remained in ISIL‑controlled territory until January 2019. She returned to public attention following media interviews in February 2019. The Secretary of State's decision to deprive was taken on national security advice and certified in part on closed grounds.
• The ministerial submission and a minors' policy excerpt were before the Secretary of State; the Security Service maintained an assessment that the appellant had aligned with ISIL and posed a risk to UK national security.

Nature of the claim and relief sought: The appellant sought to overturn SIAC's dismissal of the appeal. Her grounds included: (1) that the Secretary of State failed to take into account obligations arising from a credible suspicion of trafficking and Article 4 ECHR (investigative, protective, recovery, restitutionary and non‑punishment duties); (2) a common‑law failure to take trafficking into account as a mandatory consideration; (3) failure to consider that deprivation would render her de facto stateless; (4) breach of procedural fairness for denying prior representations; and (5) breach of the public sector equality duty under s 149 EA 2010.

Issues framed by the court:

• The legal standard and scope of SIAC's review of national security deprivation decisions;
• Whether Article 4 ECHR and related instruments and duties created an obviously material consideration that the Secretary of State failed to take into account;
• Whether a credible suspicion of trafficking was a mandatory relevant consideration at common law;
• Whether deprivation produced de facto statelessness and whether that was a material factor;
• Whether common law fairness required prior representations before a national security deprivation decision; and
• Whether the public sector equality duty applied or was displaced by section 192 EA 2010.

Court's reasoning and conclusions:

• The court reiterated SIAC's appellate, deferential role when assessing national security judgments and applied Wednesbury‑style review and standard public law principles.
• On Article 4 and ECAT, the court concluded that, given the appellant was outside UK jurisdiction and there was no established obligation to repatriate or to provide recovery assistance extraterritorially, Article 4 and related ECAT provisions did not give rise to an obviously material consideration that the Secretary of State had failed to take into account. The court held there was no established extension of the non‑punishment principle to deprivation of citizenship on these facts.
• On common law relevance, the court held the Secretary of State had regard to the appellant's youth and circumstances and was entitled to take the Security Service's assessment of voluntariness and national security risk into account. Trafficking was not a mandatory, dispositive consideration displacing national security evaluation.
• On de facto statelessness, the court accepted the appellant was, in practice, left without anywhere to go, but concluded that the Secretary of State had regard to the material and the decision was not unlawful.
• On procedural fairness, the court concluded that s 40(5) and the national security context justified the implication that prior consultation is excluded for national security deprivation decisions; although SIAC reached the contrary conclusion, any breach was immaterial because the outcome would inevitably have been the same.
• On the PSED, the court held section 192 EA 2010 provides a national security exemption, and SIAC rightly concluded the exemption applied; SIAC's further findings on due regard were upheld in closed material.

The Court of Appeal therefore dismissed the appeal, concluding the deprivation decision was not unlawful on the open and closed material.

The appeal is dismissed. The Court upheld SIAC’s dismissal of the appeal because, on the evidence (open and closed), the Secretary of State’s decision under s 40 BNA 1981 was not unlawful. SIAC’s proper role and deference to national security assessments applied; Article 4 and ECAT duties did not give rise to an obviously material, unconsidered factor requiring repatriation or preventing deprivation; trafficking was not a mandatory consideration that displaced the national security assessment; any common‑law duty of prior representations in national security cases was displaced by the statutory and contextual framework and, even if not, any breach was immaterial because the outcome would inevitably have been the same; and the Equality Act 2010 PSED was subject to the section 192 national security exemption.

The deprivation decision of 19 February 2019 (Secretary of State under s 40 BNA 1981) was appealed to the Special Immigration Appeals Commission which dismissed the appeal in open and closed judgments on 22 February 2023. Earlier procedural challenges concerning leave to enter the United Kingdom proceeded through this court and the Supreme Court (R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7). The present appeal was determined by the Court of Appeal on 23 February 2024 ([2024] EWCA Civ 152).