United Kingdom - Supreme Court, Regina (Begum) v Secretary of State for the Home Department

The Supreme Court held that the Court of Appeal misunderstood the scope of an appeal against a decision of the Secretary of State to refuse a person leave to enter the UK, as the scope is confined to assessing if the decision is in accordance with section 6 of the Human Rights Act. As Ms Begum did not advance that argument before the Court of Appeal, her appeal should have been dismissed [133]. The Supreme Court further held that the assessment of national security requirements is the responsibility of the Home Secretary and the Court of Appeal should not have made an assessment [134].

The fact that the appeal process safeguarded against unfairness did not mean that a decision which could not be the subject of an effective appeal was unfair. Parliament had not stipulated what an appellate tribunal should do if a person's circumstances were such that they could not effectively exercise their right of appeal. It would be unjust to the respondent if an appeal were to be allowed merely because the appellant found themselves unable to present their appeal effectively [90]. The Supreme Court acknowledged that “a deprivation decision may have serious consequences for the person in question: although she cannot be rendered stateless, the loss of her British citizenship may nevertheless have a profound effect upon her life”, but that setting aside a deprivation decision could also have serious consequences for the public interest [94].

It was held that the right to a fair hearing does not prevail over requirements of national security. If a vital public interest makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. The appropriate response to the problem in the present case is for the deprivation appeal to be stayed until Ms Begum is in a position to play an effective part in it without the safety of the public being compromised [135].

The Supreme Court held that the Court of Appeal mistakenly treated the Secretary of State’s extraterritorial human rights policy as if it were a rule of law, as opposed to something intended to guide the exercise of his statutory discretion. Unless there is an issue as to whether the Secretary of State has acted in breach of his obligations under the Human Rights Act, SIAC is confined to reviewing the Secretary of State’s decision by applying essentially the same principles that apply in administrative law. The Secretary of State had had to assess the degree of risk that the respondent would be exposed to mistreatment as a result of the deprivation of her British citizenship while in Syria, and that any potential risks in countries outside Syria were not a foreseeable consequence of the deprivation decision. Having considered the evidence before him, the Secretary of State was not satisfied that the deprivation decision would expose her to a real risk of such mistreatment. SIAC decided that that conclusion was not unreasonable. There was no defect in SIAC’s reasoning in that regard [130, 136].