Why Shamima Begum should not have been allowed to return

It is startling to see the Court of Appeal take over the Home Secretary’s responsibility in deciding who should be allowed to enter the UK – judging for itself the relative importance of national security considerations. But this is what the Court did in its judgment today, by opening the door for Shamima Begum to return to Britain. In doing so, it is undermining the statutory powers that Parliament enacted to enable the government to protect the public from the risk of terrorism.

In February last year, the Home Secretary Sajid Javid, stripped Begum of her British citizenship, barring her return to Britain. Begum had travelled to Syria four years earlier, aged 15, to join ISIS. The Court of Appeal has undermined the Home Secretary’s decision, not by allowing Begum’s appeal, but by ruling that she has to be granted leave to enter the UK in order to have a fair and effective appeal. For the Court of Appeal, procedural fairness seems to have outweighed the risks of Begum’s return to this country.

The Home Secretary has a statutory power to deprive a person of their British citizenship if he or she is satisfied that this is conducive to the public good. This is a highly controversial power, for obvious reasons, but it has been affirmed and reaffirmed by Parliament. The person whose citizenship is removed has a right of appeal, which in cases involving national security (as opposed to say fraud in obtaining citizenship) is heard by the Special Immigration Appeals Commission (SIAC).

In February this year, the SIAC addressed some preliminary points arising out of Begum’s appeal. Specifically, the SIAC held that depriving Begum of her British citizenship would not make her stateless, as she was a Bangladeshi citizen by descent. The SIAC also ruled that in the circumstances in which Begum found herself – detained in a camp in Syria – she could not ‘play any meaningful part in her appeal, and that, to that extent, the appeal will not be fair and effective.’

What follows from this finding? Counsel for Begum urged the SIAC to hold that if a fair and effective appeal could not be held, then the appeal had to be allowed. The SIAC firmly rejected this argument, reasoning that Parliament did not intend that if an effective appeal was impossible the appeal should be allowed. On the contrary, Parliament had clearly foreseen that many of those who might appeal would be doing so from outside the UK in circumstances in which it was difficult or impossible for them to have a fair and effective appeal. The SIAC’s striking example was a murderer who poses a national security risk and is held in solitary confinement in a third country.

There is no general rule, the SIAC reasoned, that if one cannot have an effective appeal that one is entitled to be treated as if one’s appeal had been allowed. This rule would undermine the statutory scheme, frustrating action to protect the public. It would obviously risk putting national security in peril.

For the SIAC, the way forward was either for Begum to continue her appeal under difficult circumstances; to stay the appeal until such time as she was better placed to participate effectively in an appeal; or for her appeal to continue and then to be struck out at some point, but perhaps revived later. The choice was for her and her legal team. The Court of Appeal thought the first and third of these options intolerable and the second – indefinite adjournment of appeal proceedings – ‘wrong in principle’ because they rendered her right of appeal ‘meaningless’.

Like the SIAC, the Court of Appeal was unwilling to accept that if a fair and effective appeal is impossible the appeal should simply be allowed. However, the Court of Appeal took the question to be how the unfairness to Begum should be remedied (the press release accompanying the judgment was even blunter: ‘how should that injustice be remedied?’). But this is fallacious. Neither the government nor the SIAC were treating Begum unfairly, for her circumstances were not their doing.

The Court of Appeal held that the only way in which Begum could have a fair and effective appeal was if she was granted leave to enter the UK and the Court duly ordered leave be granted. Reaching this conclusion required the Court to discount the security threat posed by Begum, a threat that on its own logic had not yet been properly considered by a court.

The statutory power to deprive a person of their British citizenship can clearly be exercised when that person is outside the UK. The operational point of doing so may be precisely to minimise their capacity to return freely to the UK and thus to protect the public from the danger they are thought to pose. Parliament has required appeals to be held in the country in some immigration matters, but not in relation to citizenship deprivation.

The Court of Appeal’s judgment has transformed Begum’s appeal right into a right to return. But she has no such right under our law. It is for the Home Secretary to decide whether to allow a non-citizen to enter the UK and she is entitled to exclude a non-citizen who is thought to be dangerous.

Worse still, while the judgment does not itself restore Begum’s citizenship, in allowing her to return to the UK the Court makes it almost inevitable she will remain in the UK for life, for removal to another country is likely to prove impossible. The point of depriving Begum of her citizenship while she was outside the UK, as in other cases, was precisely to remove from her the right to enter the UK.

Legally, Begum is no longer a British citizen. If her appeal succeeds, her citizenship will be restored. Lodging an appeal did not suspend the operation of the Home Secretary’s order. The irony of the Court’s judgment is that if Begum were still a British citizen the Home Secretary would have the legal power to temporarily exclude her from returning to the UK. But because for the time being Begum is not British, the Home Secretary cannot use these powers to stop her return.

The Court of Appeal has made a bad mistake. It has undermined the scheme Parliament chose to adopt, a scheme that authorises deprivation of citizenship from persons who may be outside the UK and whose circumstances may make it difficult for them to have a fair and effective appeal. The justice of that scheme is an open question, but is not one for judges to decide. The Supreme Court should allow the government’s appeal or corrective legislation should be enacted.

Richard Ekins is Head of Policy Exchange's Judicial Power Project. He is Professor of Law and Constitutional Government in the University of Oxford