Shamima Begum Supreme Court judgment: What are the implications for statelessness cases?

To understand the judgment of the UK Supreme Court in the Shamima Begum case, it is necessary to understand the complexity of the case: what was being decided, what was not and, most importantly, why it was not.

This is not one case, but three. Three separate sets of proceedings reached the Supreme Court. They were heard together, and one judgment given, under the court reference [2021] UKSC 187.

All three cases stemmed from the same decision, the 19th February 2019 decision of the Secretary of State to deprive Ms Begum of her British citizenship because, while still a child, she had travelled to Syria and aligned with ‘ISIL’ there.

The test for deprivation

Ms Begum was deprived of her citizenship on the basis that she was a dual national, both British and Bangladeshi, and thus that to deprive her of her British citizenship would not leave her stateless. UK law has two tests for deprivation. For dual nationals, including those British born, the test set out in s 40(2) of the British Nationality Act 1981 is whether deprivation is “conducive to the public good”: the same test as applies when deciding to deport a foreign national under s 3(5) of the Immigration Act 1971.

For those who would be left stateless, a higher test for deprivation applies under s 40(4A) of the 1981 Act but, significantly for Ms Begum, only those who naturalised as British citizens as adults can be deprived of their citizenship where this results in statelessness. This is not the result of a modern decision but flows from the UK’s 29 March 1966 declaration under Article 8(3) of the 1961 UN Convention on the Reduction of Statelessness upon ratification. At the time when the UK ratified the Convention, it permitted deprivation of citizenship only from those who had naturalised as British as adults, therefore that was the only power of deprivation resulting in statelessness that it could retain under Article 8(3).

The procedure for deprivation

UK deprivation of citizenship powers can, and frequently are, used against persons who are outside the UK. This is particularly pernicious given that, since 2004 amendments to s 40 of the British Nationality Act 1981 deprivation takes effect, when the Secretary of State makes the decision prior to any appeal.  If the person wins their appeal, their citizenship is restored. Until that time, outside the UK and deprived of their citizenship, the person is in the eyes of UK law, stateless or a foreign national and needs a visa to come back to the UK, including to be present at any appeal against the deprivation.

The appeals procedure

Confused? You have seen nothing yet.

Immigration cases go first to the Immigration and Asylum Chambers of the tribunals for appeals. But in cases involving questions of national security, where the Secretary of State decides that the evidence in the case should not be made public, the Secretary of State can issue a certificate to divert them to the Special Immigration Appeals Commission. In the strange world of the Commission’s closed material procedures, the appellant and their legal team cannot see the evidence against him/her, while a court-appointed Special Advocate can see the evidence but, having seen it, cannot communicate with the person or their legal team.

Alongside appeals to UK courts, runs judicial review in those courts. Judicial review is a procedure used to review executive decisions against which there is no right of appeal. UK immigration law is riddled with highly politicised decisions to deny rights of appeal against certain immigration decisions, with the result that those decisions can be challenged by judicial review. For these purposes, tribunal decisions are executive decisions.

But there are no closed material procedures in judicial review proceedings. So what do you do with national security cases? You give those subject to them rights of appeal to the Special Immigration Appeals Commission, but then you limit the grounds of appeal to those on which a judicial review can be brought: illegality (vires, bias, error in legal basis), irrationality and procedural impropriety (Special Immigration Appeals Commission Act 1997 s 2D (3)).

The above is a simplified version. But, armed with it, you can start to grapple with the Supreme Court decision.

The decisions of the Special Immigration Appeals Commission

Ms Begum appealed the decision to deprive her of her British citizenship. The appeal was duly sent to the Special Immigration Appeals Commission. On 7 February 2020 the Commission decided, as a preliminary issue in the case, that the deprivation had not left Ms Begum stateless and that she is a Bangladeshi national. This despite the government of Bangladesh saying that she is not. This issue was not before the Supreme Court.

On 3 May 2019, Ms Begum made an application for leave to enter the UK, outside the rules, to appeal against the deprivation decision. She also argued that she would be mistreated if she remained in the Al-Roj camp where she is currently.  She was refused, and she appealed the refusal at the same time as she appealed the decision that she was a Bangladeshi national and that the appeals would not leave her stateless. The Commission decided, again as preliminary issues, that the decision to deprive her of her British citizenship did not violate the extraterritorial human rights policy and that, although Ms Begum could not have an effective appeal against the deprivation while stuck in the Al-Roj camp, that did not mean that her appeal succeeded.

The decisions on those two preliminary issues were before the Supreme Court.

Meanwhile, the appeal against the refusal of leave to enter had been heard and Ms Begum had lost. She appealed that decision to the Supreme Court. But she had also sought to challenge those aspects of the decision against which she had no right of appeal by judicial review. To summarise, the appellate history looks like this:

• Statelessness: Ms Begum lost before the Commission on this as a preliminary issue, and it was not before the Supreme Court.
• No effective appeal against deprivation: Ms Begum lost on this as a preliminary issue before the Commission, brought a judicial review and lost in the Divisional Court. She appealed and lost before the Supreme Court.
• Breach of extraterritorial human rights policy: Ms Begum lost on this as a preliminary issue before the Commission, brought a judicial review and won in the Divisional Court. The Secretary of State appealed to the Supreme Court, where Ms Begum lost.
• Appeal against refusal of leave to enter: Ms Begum lost before the Commission and won before the Court of Appeal. The Secretary of State appealed and Ms Begum lost before the Supreme Court.
• Judicial review of refusal of leave to enter: Ms Begum lost in the High Administrative Court and won before the Court of Appeal. The Secretary of State appealed and Ms Begum lost before the Supreme Court.

Reasons and implications for statelessness cases:

No effective appeal against deprivation

The Supreme Court accepted that Ms Begum could not have an effective right of appeal against deprivation of citizenship while she was outside the country.  It held, however, that this did not mean that she should be allowed to enter the UK. The courts could not hear an unfair appeal. But where they could not hear an appeal for reasons of national security, that meant that they could not hear the appeal at all. It should be stayed until it could be heard fairly. The court acknowledged that the stay was indefinite and could be lengthy.

This has implications for UK cases of deprivation of citizenship but its impact on those resulting in statelessness is not yet known (for the sake of these proceedings Ms Begum is not regarded by the Supreme Court as stateless and the issue was not before the Court). The Supreme Court was content to leave Ms Begum in limbo, but would it feel the same way about a stateless person, with no other nationality?

Extraterritorial human rights policy

The case turned on the scope of an appeal against deprivation in the Special Immigration Appeals Commission. The Supreme Court pointed out that this is limited to judicial review principles, as described above. So, the question was “did the then Secretary of State act unlawfully, irrationally or in a procedurally improper way in deciding that he was not satisfied that depriving Ms Begum of British citizenship would expose her to a real risk of mistreatment within the meaning of that policy”? The Supreme Court said that he did not: that conclusion was open to him as a matter of law. Even on the restricted judicial review basis, you may find this a surprising decision.

The judicial review “unlawful, unreasonable or procedurally improper” test would apply in a statelessness case, but the decision might be decided differently on its facts. A stateless person can look to no State for protection and might be at a real risk of mistreatment where a person with a nationality would not.

Appeal against refusal of leave to enter

This is a highly technical decision. The Supreme Court pointed out that since 2014, the only grounds of appeal against an immigration decision are “protection” (asylum or subsidiary protection, for persons within the UK) or human rights’ grounds under s 82 of the Nationality, Immigration and Asylum Act 2002, which applies to appeals before the Special Immigration Appeal Commission. Ms Begum had challenged the Commission’s decision on neither set of grounds, but on common law principles. Her appeal could not succeed on those grounds. The Court of Appeal had missed that point and got it wrong.

Let that sink in. Ms Begum is most ably represented. The Court of Appeal is the second highest court in England and Wales. It sees a high volume of immigration cases. But the Court of Appeal failed to identify that Ms Begum could appeal only on human rights’ grounds. 

There is no special application of this point to the stateless. But in the UK, an application for leave as a stateless person is only considered when all other avenues for leave have been exhausted. Stateless persons who are not, in England and Wales, eligible for grants of financial legal aid unless they are seeking asylum or on an exceptional basis, will have had to negotiate this complex process at least once before making their application for leave as a stateless person, against which there is no right of appeal unless human rights’ grounds have been pleaded.

Judicial review of refusal of leave to enter

This is one of the most contentious parts of the judgment, although arguably not the most interesting from a statelessness practitioner’s point of view. The Supreme Court held that it was not open to the Court of Appeal, absent evidence, to reach conclusions on the extent of a threat to national security that Ms Begum represented, or whether these could be managed by her arrest or other counter-terrorism provisions. The Supreme Court concluded that “The Court of Appeal also appears to have overlooked the limitations to its competence, both institutional and constitutional, to decide questions of national security “[paragraph 110].

Conclusion

All this illustrates just how important it would be to Ms Begum to be found to be stateless. It also illustrates what an appalling mess has been made of the legislation the Supreme Court was applying. The expert Court of Appeal, despite the assistance of first-rate legal teams, had misunderstood the law in a number of respects. The idea that anyone, deprived of their citizenship and unable to return to the UK to challenge this, could navigate such complexity is fanciful.

The judgment is difficult, in substance as well as to read and understand. But however disappointed you are by it, do understand what has gone wrong. The story here is first and foremost how the UK executive has confined the courts to examining narrow and technical points and only secondly about the conclusions the Supreme Court reached.