In allowing the Home Secretary’s appeal in the Begum case, the Supreme Court has corrected a misconceived Court of Appeal judgment, which had put national security in doubt and undermined the law Parliament made. The Supreme Court’s judgment is a powerful and welcome, if somewhat overdue, affirmation of constitutional principle and the limits of judicial power.
The Home Secretary has a statutory power to deprive a person of British citizenship if this is conducive to the public good, provided this does not make the person stateless. In cases involving national security, the person’s statutory right of appeal is to a court called the Special Immigration Appeals Commission (SIAC). In the case of Shamima Begum, SIAC held that, detained in a camp in Syria, she could not “play a meaningful role in her appeal, and that, to that extent, the appeal will not be fair and effective.” But it did not follow, SIAC held, that her appeal should for that reason automatically succeed or that she must be permitted to enter the UK for the purpose of participating in the appeal.
On Begum’s appeal from SIAC, the Court of Appeal ordered the Home Secretary to grant her leave to enter the UK to participate in her appeal against deprivation of citizenship. The Court of Appeal also held that SIAC has been wrong to decide that the appeal against deprivation should proceed on ordinary principles of judicial review, in which the merits of the decision are for the Home Secretary as the primary decision-maker. On the contrary, said the Court of Appeal, it would be SIAC’s role to decide for itself whether the deprivation of citizenship was conducive to the public good.
In last Friday’s judgment allowing an appeal on each of these points, and others, the Supreme Court makes clear that the Court of Appeal mishandled the law and misstated the courts’ constitutional role. It thereby vindicates criticisms of the Court of Appeal’s judgment made at the time by the former Home Secretary, the Rt Hon Sajid Javid MP, amongst others.
The Supreme Court builds its judgment primarily on the statements of constitutional principle made in a judgment of Lord Hoffmann in 2001 emphasizing that the exercise of judicial functions on appeal is characteristically and properly constrained by reason of the institutional competence and democratic legitimacy of the primary decision-maker. This is particularly clear where the primary decision involved questions about the interests of national security. In this and various other contexts, the court’s role on appeal is to determine whether there was a factual basis for the Home Secretary’s decision and whether a reasonable Home Secretary could have made it. It is not for the court itself to decide what should be done.
So when the Court of Appeal decided that justice required that Begum be allowed to enter the UK to have a fair and effective appeal, and that it would be wrong in principle to stay her appeal until such time, if ever, as she could participate meaningfully, it erred. There are a number of kinds of circumstance in which, however unfortunate it may be for a would-be appellant, the availability of a fair and effective appeal does not trump all other considerations.
In commenting on the judgment in July last year, I remarked that it was startling to see the Court of Appeal take over the Home Secretary’s responsibility and decide for itself the relative importance of national security considerations. The Supreme Court takes a similar view, criticising the court below for reaching conclusions about national security that it had no jurisdiction to consider, which had no factual basis, and which it had no competence or legitimacy to make.
Friday’s judgment does not foreclose Begum’s appeal to SIAC proceeding at some future time, if she becomes able to participate effectively in it. However, the Supreme Court has now firmly rejected the attempt to leverage her right to appeal into a right to return to the UK, which would mean a de facto right to remain.
Some lawyers argue that the judgment sets a dangerous precedent, conferring absolute discretion on the Home Secretary. This is clearly wrong. The appeal process remains an important safeguard and the Home Secretary does not have carte blanche. Others object that the judgment overlooks the fact that a fair and effective appeal is impossible only because of the actions of the Home Secretary, depriving Begum of her citizenship while abroad and then refusing her leave to enter the UK to participate in her appeal. This misses the point. It would clearly be wrong for the Home Secretary to exercise her power in order to make an appeal impossible, but it is equally clear that Parliament conferred the power in order to enable deprivation of citizenship when a person is outside the UK and in circumstances in which a fair and effective appeal may prove difficult.
There are good reasons to think that the power to deprive a person of their British citizenship is overly broad and should be more strictly limited, if not abolished. But this is an argument that should be advanced in Parliament not in a courtroom. In allowing the Home Secretary’s appeal, affirming her statutory power, and restating wider limits on the judicial function, this Supreme Court panel has done its bit to vindicate the rule of law. Let us hope it is a sign of things to come.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford