Shamima Begum: The Special Immigration Appeals Commission’s Judgment of 22 February 2023
On 22 February 2023, the judgment of the Special Immigration Appeals Commission in the appeal of Shamima Begum against the Home Secretary’s decision to deprive her of her British citizenship was published. Due to SIAC’s function and the nature of the appeals before it, only the OPEN judgment is published. SIAC also considered CLOSED materials, namely sensitive information that it is not in the interests of national security to disclose, with the assistance of Special Advocates and set out its reasoning in a CLOSED judgment that is not published.
The OPEN judgment was given by Jay J, Chairman of SIAC. Following the Supreme Court’s decision in Begum v Secretary of State for the Home Department [2021] UKSC 7, where three preliminary issues were considered, the matter returned to SIAC with amended grounds.
The Grounds pleaded were as follows:
- The Secretary of State failed to take into account a mandatory relevant consideration and/or failed to undertake proper inquiries into it, that Ms Begum may have been a victim of trafficking.
- The decision to deprive Ms Begum of her British citizenship was in breach of section 6 of the Human Rights Act 1998, as it was not compatible with Article 4 ECHR, because there was a credible suspicion that she had been trafficked.
- The Secretary of State failed to undertake proper inquiry into the consequence of the deprivation decision to render Ms Begum de facto stateless, which was a relevant consideration.
- The deprivation decision was procedurally unfair as Ms Begum was not afforded the opportunity to make representations.
- The deprivation decision had been pre-determined, or the evidence gave rise to a risk this was the case.
- There was an unfair or one-sided presentation of the risk posed by returnees, on the basis of which the deprivation decision was made.
- There was a failure to comply with the public sector equality duty (“PSED”).
- The Secretary of State’s national security assessment was irrational or there were less intrusive measures capable of dealing with any risk posed by Ms Begum.
- The deprivation decision was disproportionate under the common law and Article 8 ECHR.
Held
Ground 2, namely that Ms Begum’s Article 4 rights were violated by the decision to deprive her of her British citizenship was considered first, followed by Ground 1. This involved the argument that the Secretary of State failed to consider mandatory relevant considerations relating to trafficking and applied an unlawful policy. Ground 8 was considered third. This case note will outline SIAC’s consideration of Grounds 1-4 and 8.
Article 4 ECHR
SIAC concluded that there is a credible suspicion that Ms Begum was trafficked. It was found that there were State failures and possible violations of Article 4. However, the scope of the appeal required specific consideration of whether the deprivation of Ms Begum’s citizenship amounted to a breach of her Article 4 rights. The investigative duty under Article 4 was considered first. In view of the fact that Ms Begum was outside the UK when the decision to deprive her of her citizenship was made, it was found that a violation of Article 4 would occur only if the Secretary of State were obliged to repatriate her in order to effectively investigate her trafficking circumstances. It was held that the National Referral Mechanism policy did not include a duty to repatriate and a broader duty under the Council of Europe Convention on Action Against Trafficking in Human Beings, 2005 (“ECAT”) was not directly justiciable. The recovery obligation also did not require repatriation as Ms Begum was no longer in ISIL-controlled territory by the date of the deprivation decision. As such, it was found that there was no breach of the investigative duty under Article 4.
In terms of the protective duty, SIAC considered again that there ought to be a direct connection between the exercise of the section 40 power to deprive and the violation of Ms Begum’s Article 4 right. It was held that any violation prior to her travel to Syria in 2015 did not provide the necessary nexus. It was argued that the non-punishment principle of Article 26 of ECAT sheds light on the meaning and scope of Article 4 and includes non-repatriation within the range of punishments covered by it. However, SIAC considered that the section 40 power is not punitive in nature and held that there was a reasonable prospect that the Strasbourg Court would accept that submission. Ground 2 failed for these reasons.
Public law errors related to trafficking
SIAC considered that, even though a violation of Article 4 was found not to have occurred, the argument that there was a failure to take into account an obviously relevant consideration (Ms Begum’s trafficking) did not fail as a result of that. Nonetheless, it was found that section 40 did not explicitly or implicitly require the Secretary of State to take into account a credible suspicion that the individual may have been trafficked prior to exercising the power. It was further found that the matter was not so obviously material that it was irrational for the Secretary of State to ignore it, applying the DSD v Parole Board [2018] EWHC 694 (Admin); [2019] QB 285 test. Ground 1 therefore also failed.
In relation to Ground 8, insofar as the reasoning was set out in the OPEN judgment, it was held that the Secretary of State’s policy was not unlawful. It was also held that it was not irrational for those advising the Secretary of State to assess that Ms Begum’s travel to Syria was voluntary, although if SIAC could decide for itself, it would consider it was involuntary. However, as SIAC’s function was not to undertake a full merits appeal, that was not a decision it could make and it was limited to reviewing the Secretary of State’s assessment on public law grounds. Ground 8 failed.
De facto statelessness
Ground 3, the failure to consider that Ms Begum would be rendered de facto (even though not de jure) stateless, also failed. It was held that the Secretary of State was aware of this consequence of deprivation.
Procedural unfairness
It was previously held (per Al-Jedda (No 2) v SSHD (SC/66/2008)) that section 40 did not include an obligation to give prior notice and an opportunity to make representations against the exercise of the power. Further, if it did, that was remedied by the fact that there was a full merits appeal against a decision to deprive a person of their British citizenship. SIAC considered this in light of the Supreme Court’s judgment in Begum and SIAC’s narrower function.
SIAC considered that it was wrong, in Al-Jedda, to regard the wording of section 40 as sufficient to implicitly exclude the common law duty of fairness, in view of the principle set out in Bank Mellat v HMT (No 2) (“Bank Mellat”) [2013] UKSC 38/39. Conversely, the conclusion that a full merits appeal remedied any unfairness arising from the lack of an opportunity to make representations in advance of a decision being made was found to have been correct. A section 40A appeal, however, was neither a full merits appeal, nor a judicial review. Post-decision evidence is admissible and can be tested. The SIAC ultimately found that “in the absence of a full merits appeal it cannot be said that common law fairness has been impliedly excluded.”
In considering whether giving Ms Begum the opportunity to make representations was impossible or impracticable, SIAC held that it was neither. National security reasons did not justify the omission, which was instead driven by political factors. It was also found that it was not pointless for Ms Begum to be given the opportunity, given the decision involved the removal of a fundamental right. As the Supreme Court in Begum (para 110) highlighted that the right to an effective appeal was not a trump card, automatically outweighing national security concerns, SIAC stressed that national security does not trump “everything else whatever the individual might say”. As such, it was considered that the Secretary of State acted procedurally unfairly in failing to give Ms Begum an opportunity to make representations prior to depriving her of her citizenship.
Nonetheless, in order to allow the appeal on that basis, SIAC had to also conclude that the failure to afford her an opportunity to advance prior representations was material, i.e. it made a difference to the outcome. In the specific circumstances of the case, SIAC concluded that representations would not have made a practical difference and a technical breach of the rules of natural justice did not suffice. Ground 4 failed on that basis.
Grounds 5-9 were also found to fail, with the reasons for that set out in paragraphs 353 to 407 of the judgment.
Commentary
SIAC’s judgment is, indisputably, difficult to stomach. It has bleak consequences for a person who, in SIAC’s own conclusion, is credibly suspected to have been trafficked and whom the State failed to protect. The judgment paints a further bleak picture: it demonstrates the courts’ incredibly narrow – almost insignificant, as SIAC effectively admits at parts of the judgment – ambit in reviewing the exercise of executive powers that involve considerations of national security.
However, that cannot be held against SIAC. It is the result of the Supreme Court’s previous judgment, clarifying the function of SIAC in such appeals, with reference to its constitutional and institutional function. Having that in mind, it could perhaps be argued, in recognition of the detailed and extensive reasoning set out in 76 pages of the judgment, that SIAC did all it could within its ambit. That does not mean that its decision can be without scrutiny; flexible as the Wednsbury test may be (see Pham v SSHD [2015] UKSC 19; [2015] 1 WLR 1591) and notwithstanding its “powerful microscope”, SIAC’s view on whether the Secretary of State acted irrationally is itself amenable to consideration by an appellate court, which can substitute its own view for that of SIAC, given the (somewhat) binary nature of irrationality assessments.
SIAC confirms that the trafficking matters advanced in Grounds 1 and 2 were novel territory, noting the lack of relevant case law. The rejection of Ground 2 was on the basis that SIAC was not “fully confident” that the exercise of the decision to deprive Ms Begum’s citizenship, preventing thus her repatriation, would be considered by Strasbourg to be a punitive measure that would be in breach of the non-punishment principle that could inform the protective duty under Article 4. However, that is a high threshold. The Supreme Court held in R (AB) v SSJ [2021] UKSC 28; [2022] AC 287 that this threshold is necessitated by the risk of undermining the intended aim of the Human Rights Act if domestic courts take the protection of Convention rights further than they can be fully confident that the European court would go. The right of an individual to apply to the Strasbourg court in the event the domestic courts’ approach was too conservative was given as a justification, in contrast with the State’s inability to do the same if the approach was overly broad. As such, Ms Begum remains, in principle, able to have recourse to the full domestic appellate process and, thereafter, to the Strasbourg court in relation to her Article 4 matter.
As for the consideration of Ground 1, it is difficult to identify the line between review and substantive consideration. Having established that trafficking was not a mandatory statutory consideration, SIAC proceeded to conclude that it was not irrational for the Secretary of State to have given it no weight prior to exercising the power to deprive. In concluding this, SIAC considered that national security warranted a more nuanced focus and required a very strong countervailing case to outweigh it. However, SIAC was not considering whether the Secretary of State’s decision would have been inevitably the same, had the trafficking matter been considered. A matter can be so obviously material that it would be irrational for the decision-maker to ignore it, even if it can, in the circumstances, be outweighed by other considerations. That would not be inconsistent with the principle in DSD. The Secretary of State may lawfully decide to give a material factor no weight, as SIAC concludes in reliance on Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759. However, in Ms Begum’s case it is unclear whether there was an active decision to give no weight to the suspicion that she had been trafficked, or whether it was completely overlooked.
Finally, whilst SIAC’s decision on Ground 4 demonstrates a widening of the general approach to matters of procedural fairness in national security cases, it may be of little relevance in the future. The introduction of Schedule 4A of the British Nationality Act 1981 by the Nationality and Border Act 2022 and the procedure to make deprivation decisions without notice set out therein is likely to warrant a different approach on whether it is fair to dispense with the duty to give a person notice and an opportunity to make representations prior to depriving them of their citizenship. It is noteworthy to consider, nonetheless, that although SIAC considered the opportunity to make representations not to be pointless in principle, it found that it would not have made a material difference in Mr Begum’s case. This can be the case, albeit rarely, as set out in R v Chief Constable of Thames Valley Police ex p Cotton [1990] IRLR 344 and SIAC acknowledged the difficulty of the argument that any prior representations could have made no practical difference in view of the range of reasonable opinions open to the Secretary of State and given the high threshold of inevitability. Yet again, this demonstrates that it is lawful for the executive to give little, if any, weight to personal circumstances, provided that it considers it to be in the interests of national security to do so. Pointless in all but name, it seems to me.
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