Begum v Secretary of State for the Home Department  All ER (D) 43 (7 February 2020): The Special Immigration Appeals Commission ('SIAC') considered (1) the UK Home Secretary’s decision to deprive the appellant of her British citizenship, whether that decision made the appellant stateless; and (2) whether the appellant could have a fair and effective appeal from Syria and, if not, whether her appeal should be allowed on that ground alone.
Begum v Special Immigration Appeals Commission and another  EWCA Civ 918 (16 July 2020): The Court of Appeal determined what legal and procedural consequences should follow from the conclusion of SIAC that Ms Begum could not have a fair and effective appeal of the Secretary of State’s deprivation appeal.
The appellant's parents were Bangladeshi nationals when she had been born in the UK. The appellant was a British citizen by birth under s 1(1)(b) of the British Nationality Act 1981 because, at the time of her birth, her father had had indefinite leave to remain. When the appellant was 15, she left the UK and went to Syria. She is presently detained by the Syrian Democratic Forces.
The respondent Secretary of State decided to deprive the appellant of her British citizenship on the ground that the security service had assessed that she had travelled to Syria and aligned with ISIL, which he considered posed a threat to national security. The appellant appealed against that decision and applied for leave to enter the UK to enable her to take part in her appeal in the UK. These proceedings before the Special Immigration Appeals Commission (the “SIAC”) concerned the determination of certain preliminary issues, including as follows:
(1) Whether the Secretary of State’s decision made the appellant stateless; and (2) whether the appellant could have a fair and effective appeal from Syria and, if not, whether her appeal should be allowed on that ground alone.
The legal context of the arguments about statelessness
Section 40(2) of the British Nationality Act 1981 (“the 1981 Act”) gives the Secretary of State power, by order, to deprive a person of citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good. Section 40(4) prevents the Secretary of State from depriving a person of their citizenship if “he is satisfied that the order would make [the] person stateless”. The 1981 Act does not prevent the Secretary of State from depriving a person of citizenship if the Secretary of State has reasonable grounds for believing that the person is, under the laws of another state or territory, able to become a national of that state or territory. The 1981 Act confers a right of appeal on a person who has been deprived of their British citizenship. The Secretary of State decision is judged on the information that he had available at the time and is not speculative. Therefore the Bangladeshi government disavowal of Shamima Begum on the day after the deprivation could not be included in the legal arguments about whether or not she had retained her Bangladeshi nationality. The judgment assumes that Begum would have to take legal proceedings in Bangladesh to challenge the government’s position.
In Pham v Secretary of State for the Home Department, the Supreme Court held that the word ‘stateless’ in section 40(4) of the 1981 Act means “not considered as a national by any state under the operation of its law”. The appeal from the decision of the Court of Appeal in Pham (reversing the SIAC’s decision that the Secretary of State’s decision had made the appellant stateless) was dismissed on the grounds that regardless of whether another state’s practice was relevant to the question of statelessness, the appellant was not, on any view, stateless on the date when the Secretary of State made the relevant order under section 40(2). No member of the Supreme Court held in terms that state practice was relevant to that question. The judgments either express no concluded view, or (in one case) scepticism, on that point.
Jackson LJ (giving the judgment of the Court of Appeal in Pham) held that “if the relevant facts are known, and on the basis of those facts and the expert evidence it is clear that under the law of a foreign state an individual is a national of that state, then he is not de jure stateless. If the Government of the foreign state choses to act contrary to its own law, it may render the individual de facto stateless. Our own courts, however, must respect the rule of law and cannot characterise the individual as de jure stateless”.
Ms Begum’s primary submission was that she is not considered a national of Bangladesh under the operation of Bangladeshi law.
The parties’ arguments concerned foreign law. The courts of England and Wales resolve such arguments by hearing the evidence of experts in foreign law. The court’s decision on a question of foreign law, because it depends on the expert evidence which parties happen to have called in that case, is a decision of fact, not law. It follows that decisions of other courts of England and Wales on the same question of foreign law are not binding.
There were two essential issues on which the experts instructed by Ms Begum and the Secretary of State differed:
i. Do dual nationals retain their Bangladesh citizenship until the age of 21?
ii. Would the Supreme Court of Bangladesh fail properly to apply the law of Bangladesh because of political pressure from the Government of Bangladesh in cases about terrorist suspects?
Begum v Secretary of State for the Home Department  All ER (D) 43 (7 February 2020)
As to whether the Secretary of State’s deprivation order made the appellant stateless; the SIAC found that, on the basis of Bangladeshi law, when the Secretary of State’s decision had been made, the appellant had been a citizen of Bangladesh by descent. She had held that citizenship as of right. That citizenship had not been in the gift of the government and could not be denied by the government in any circumstances. As the appellant had been under 21, her Bangladeshi citizenship had not been affected by a provision prohibiting dual citizenship or nationality. It followed that that was the meaning and effect which the Supreme Court of Bangladesh would give the relevant provisions, if it correctly applied the law of Bangladesh.
Counsel for Ms. Begum submitted that he was not relying on state practice to argue that Ms. Begum was stateless de facto, but, rather, was arguing that she was de jure stateless because, as a result of political pressure, the Supreme Court of Bangladesh would decide any case involving Ms. Begum in favour of the Government.
The SIAC however rejected that argument. There was no secure support for it in the evidence of the expert witness for Ms. Begum. The expert made general assertions about the lack of independence of the Supreme Court of Bangladesh, and the trend of recent decisions of the Supreme Court, but did not in his report, or in his oral evidence, refer to a single decision to make good that assertion. Further, and irrespective of authority, the SIAC in any event considered that it would be wrong for a court in England and Wales to accept that the provisions of the law of a foreign state, with a written constitution and a common law tradition, do not mean what they appear to mean, because the Government might argue, wrongly, that they mean something else. Such an approach is arbitrary and undermines legal certainty.
Ms. Begum’s counsel also argued that whatever the courts in Bangladesh might decide, the Government would not treat her as a national of Bangladesh and she would not be able to challenge that in court. However, the SIAC found that argument unpersuasive. Ms Begum’s counsel could not show that, at the date of the Secretary of State’s deprivation decision, the Government of Bangladesh had any position, either in relation to Ms Begum, or in relation to people in her situation.
Accordingly, the SIAC found that Ms. Begum was not de jure stateless and the deprivation decision had not made her stateless.
As to issue (2) – namely whether the appellant could have a fair and effective appeal from Syria and, if not, whether her appeal should be allowed on that ground alone, SIAC determined that, in her current circumstances, the appellant could not play any meaningful part in her appeal and, to that extent, the appeal would not be fair and effective. However, without investigation, the assumption that, if she could not have a fair and effective appeal, her appeal had to succeed, could not be accepted.
For the SIAC, the difficulty at the heart of Ms Begum’s submissions was that, if they were right, the fact that a person who had been deprived of her nationality on grounds of national security outside the UK and was unable to instruct lawyers and/or to take part in her appeal by video link, entailed, in and of itself, that her appeal should succeed, without any examination of its merits and, in particular, without any consideration of the national security case against her. There was no warrant for a universal rule that every deprivation appeal had to be effective in the statutory scheme. The effect of such a rule would be to convert a right of appeal on the merits into an automatic means of overturning a deprivation decision, regardless of its merits, if an appellant was unable to take part in her appeal. An intention to enact such an implied universal rule could not sensibly be imputed to Parliament. Once that was accepted, it was impossible to craft an implied rule which was sufficiently granular to apply to some people with whom the court might have sympathy, while not protecting those with whom the court did not sympathise. The design of such a rule was a job for the legislator and not for the court.
Accordingly, the appellant's submission, that her appeal had to succeed because she could not have a fair and effective appeal, was rejected.
On 6 April 2020, Ms Begum was granted permission to apply for judicial review of the decision of SIAC on this latter preliminary issue. Ms Begum did not seek to challenge by way of judicial review the decision of SIAC on the first preliminary issue that the deprivation decision had not rendered her stateless.
Begum v Special Immigration Appeals Commission and another  EWCA Civ 918 (16 July 2020)
For the Court of Appeal, the circumstances in which Ms Begum left the UK and remained in Syria and whether she did so of her own free will should be irrelevant to the question of the legal and procedural consequences of SIAC’s conclusion that she cannot have a fair and effective appeal. In terms of what legal and procedural consequences should follow from the conclusion of SIAC that Ms Begum cannot have a fair and effective appeal, the Court of Appeal agreed that it does not follow that the appeal must be allowed. That would be contrary to principles of fairness and justice simply to conclude that the appeal should be allowed and the deprivation decision set aside without any consideration of the merits of the case by the court. Fairness is not one-sided and requires proper consideration to be given not just to the position of Ms Begum but the position of the Secretary of State. The Court has also to keep in mind the public interest considerations, including the interests of national security which led to the deprivation decision, together with the fact that Ms Begum’s predicament is in no sense the fault of the Secretary of State. It would be wrong to disregard those matters and allow the appeal without the Court assessing the national security case.
For the Court, the critical question was what steps could be taken to alleviate the unfairness and lack of effectiveness. The SIAC had identified three possible courses in its judgment, but the Court of Appeal determined that the only realistic type of action out of the three courses would be for Ms Begum to apply for a stay of the appeal in the hope that, at some point in the future, she will be in a better position to take part in it (it being “unthinkable” that having concluded that Ms Begum could not take any meaningful part in her appeal so that it could not be fair and effective, she should have to continue with her appeal nonetheless).
However, the Court held that the suggestion that Ms Begum’s appeal should be stayed indefinitely in circumstances where she is being detained in a camp, does nothing to address the foreseeable risk if she is transferred to Iraq or Bangladesh, where could be unlawfully killed or suffer mistreatment. Further, to simply stay her appeal indefinitely was, for the Court, wrong in principle. It would in effect render her appeal against an executive decision to deprive her of her British nationality meaningless for an unlimited period of time.
Lastly, the current national security concerns about Ms Begum were of a type and level, in the Court of Appeal’s judgment, that could be addressed and managed if she returns to the United Kingdom.
The Court of Appeal concluded that given that the only way in which Ms Begum can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns, so that her leave to enter the United Kingdom for that purpose should be allowed.
The Secretary of State appealed to the Supreme Court, which issued a judgment on 26 February 2021, available at: https://www.supremecourt.uk/cases/docs/uksc-2020-0156-judgment.pdf.
For the implications of the Supreme Court judgment, see: https://www.statelessness.eu/updates/blog/shamima-begum-supreme-court-judgment-what-are-implications-statelessness-cases.
A case summary will be made available soon.