Begum v Home Secretary UKSC 7 is the short name of three closely connected proceedings considered together in the Supreme Court of the United Kingdom, R (on the application of Begum) v Special Immigration Appeals Commission; R (on the application of Begum) v Secretary of State for the Home Department; and Begum v Secretary of State for the Home Department, concerning Shamima Begum, a woman born in the United Kingdom who at the age of 15 travelled to Syria to join the Islamic State of Iraq and the Levant (ISIS). Her intention to return to England in 2019 resulted in a public debate about the handling of returning jihadists.
The case was heard on 23 and 24 November 2020, and in a judgment delivered on 26 February 2021 the Supreme Court unanimously found in favour of the Home Secretary on her appeal against an Order of the Court of Appeal that Begum should be given leave to enter the United Kingdom, which it overturned."Shamima Begum: 'IS bride' cannot return to UK, court rules" BBC News, 26 February 2021, accessed 26 February 2021 It also dismissed Begum's applications for judicial review of the leave to enter decision and of the Special Immigration Appeals Commission's preliminary decision in a deprivation of citizenship appeal. It considered that Begum's challenge to her loss of British citizenship could only be stayed until such time as she is in a position to play an effective part in it without the safety of the public being compromised.
Facts The daughter of Bangladeshi parents, Begum was born in London in 1999 and grew up in Bethnal Green, attending the Bethnal Green Academy.Aamna Mohdin, "Let Shamima Begum come back, say Bethnal Green residents", The Guardian, 14 February 2019, accessed 21 February 2019, She held British citizenship under section 1 of the British Nationality Act 1981, as both her parents were settled in the United Kingdom when she was born. In a preliminary decision, the Special Immigration Appeals Commission (SIAC) found that as a matter of Bangladeshi nationality law she also holds Bangladeshi citizenship through her parents, as a result of section 5 of the Citizenship Act, 1951.2020 EWCA Civ 918, para 8, accessed 27 February 2021
With two friends, Begum left Britain in February 2015 to go to Syria to join ISIS.Gregory Walton, "Isil defector girls' families go to Turkey to probe disappearance", 23 March 2015, The Daily Telegraph, accessed 21 February 2021 A few days after her arrival there, she married Yago Riedijk, a Dutch-born ISIS fighter.Shamima Begum: 'We should live in Holland' says IS husband, BBC News, 3 March 2019, accessed 28 February 2021
On 13 February 2019, Anthony Loyd of The Times interviewed Begum at the al-Hawl refugee camp in Syria, with the newspaper calling this "a major scoop".James Walker, Times website and app break on day it secures 'major scoop' on London schoolgirl who joined ISIS, Press Gazette, 14 February 2019, accessed 26 February 2021 On 19 February 2019, British Home Secretary Sajid Javid decided to use his power to deprive Begum of her United Kingdom citizenship, relying on information not to be made public on the grounds of national security. He later said she would never be allowed to return.Shamima Begum loses appeal over citizenship, BBC News, 7 February 2020, accessed 26 February 2021Tim Wyatt, Isis bride Shamima Begum will never be allowed to return to UK, says government, The Independent, 29 September 2019, accessed 26 February 2021 She was nine months pregnant at the time, and gave birth to a son within hours. Begum gave an interview to Sky News the same day, claiming she was only a housewife."IS bride Shamima Begum full transcript: The teenager says a lot of people should have sympathy for her and there is no evidence she has done anything dangerous", Sky News, 20 February 2019 Her case turned into a cause célèbre, and it was argued on her behalf that she was a minor when she left home, so should not be held to the same standards of behaviour as those who were of full age.Robert Wright, Chloe Cornish, Shamima Begum cannot return to UK for citizenship battle, Supreme Court rules, ft.com, 26 February 2021 On 3 March, Begum's Dutch husband said he wished them to live in the Netherlands, but he was then in a Kurdish detention centre in Syria, and if he were to return to the Netherlands he could face imprisonment for belonging to a terrorist organisation.
On 15 April 2019, it was reported that Begum had been granted legal aid to fight the revocation of her British citizenship. Foreign Secretary Jeremy Hunt described the Legal Aid Agency's decision as "very uncomfortable", but said that the United Kingdom was "a country that believes that people with limited means should have access to the resources of the state if they want to challenge the decisions the state has made about them".
On 3 May 2019 Begum applied for leave to enter Britain outside the Immigration Rules, under section 3 of the Immigration Act 1971 and section 113 of the Nationality, Immigration and Asylum Act 2002. She relied in part on Article 2 and Article 3 of the European Convention on Human Rights. On 13 June 2019, Javid refused this application, giving as reasons that Begum had not supplied a photograph of her face and a copy of her fingerprints and that the European Convention on Human Rights did not apply to her, or if it did there was no evidence that refusing her entry would breach her Convention rights. This further decision by Javid was later referred to as the "leave to enter decision".Supreme Court Judgment, paragraphs 3–4
In August 2019, under the Terrorism Act 2000, the Metropolitan Police asked the media organisations which had interviewed Begum, including the BBC, ITN News, Sky News, and The Times, to surrender any unpublished material they held about her to assist them in preparing a prosecution.Jim Waterson, Met police seek access to journalists' material on Shamima Begum, The Guardian, 6 August 2019, accessed 21 August 2019
Court of Appeal judgment The three Lords Justices, Dame Eleanor King, Sir Julian Flaux, and Sir Rabinder Singh, were dealing with judicial review applications as well as appeals. On some of the issues before them they sat as a Divisional court, on others as the Court of Appeal of England and Wales.2020 EWCA Civ 918, paragraphs 5, 6
On 16 July 2020, the Court decided that Begum could not have a fair hearing as a result of the SIAC preliminary decision on Articles 2 and 3 of the European Convention on Human Rights, so her claim for judicial review of that decision succeeded. The judgment said "Fairness and justice must, on the facts of this case, outweigh the national security concerns, so that the leave to enter appeals should be allowed." Begum's counsel had asked the Court to allow the deprivation of citizenship appeal and to quash the Home Secretary's decision, but instead the Court remitted that issue to SIAC to be decided de novo.2020 EWCA Civ 918, paragraph 129 This was reported by the BBC as "Shamima Begum can return for UK citizenship fight." "Shamima Begum can return for UK citizenship fight" BBC News, 16 July 2020, accessed 16 February 2021
In reaction to this, the United Nations special rapporteur on Counter-Terrorism, Fionnuala Ní Aoláin, welcomed the decision, commenting "I commend the UK Court of Appeal for grasping the essential and absolute importance of the right to meaningfully participate in the proceedings depriving a person of their citizenship"."UN expert welcomes UK Court of Appeal decision in Shamima Begum case", ohchr.org, Geneva, 16 July 2020 The Court of Appeal ordered the Home Secretary to grant Begum leave to enter the United Kingdom and to provide her with the travel documents she needed.Supreme Court Judgment, paragraph 11
Home Secretary's appeal to the Supreme Court The Home Secretary appealed to the Supreme Court on three matters: The decision to allow Begum's application for judicial review of SIAC's decision on the Secretary of State's policy;Supreme Court Judgment, paragraph 13 The decision to allow Begum's appeal against SIAC's decision dismissing the leave to enter appeal, and to order that leave to enter the United Kingdom be granted; the decision allowing Begum's appeal against Elisabeth Laing's decision to dismiss the application for judicial review of the leave to enter decision, and again to order that leave to enter be granted. Begum filed a cross-appeal, claiming the Court of Appeal had been wrong to reject her argument that her appeal on the deprivation of citizenship should automatically be allowed if it could not be fairly and effectively pursued due to her being prevented from entering the United Kingdom.
Hearing and counsel The Supreme Court hearing took place on 23 and 24 November 2020. Lord Pannick QC, Tom Hickman QC, and Jessica Jones, instructed by Birnberg Peirce, represented Begum. Sir James Eadie QC, Jonathan Glasson QC, and David Blundell QC were instructed by the Government Legal Department. There were also three Intervenors. Richard Hermer QC and Ayesha Christie were instructed by the advocacy group Liberty, and Felicity Gerry QC and Eamonn Kelly by JUSTICE, the British section of the International Commission of Jurists. The United Nations special rapporteur on Counter-Terrorism, Fionnuala Ní Aoláin, was represented by Guglielmo Verdirame QC, Jason Pobjoy, and Belinda McRae, who made written submissions and did not appear in court.Supreme Court Judgment, page 2
Supreme Court judgment On 26 February 2021, the Supreme Court, comprising President Lord Reed, Deputy President Lord Hodge, Lady Black, and Lords Lloyd-Jones and Sales, published a judgment settled by Lord Reed and agreed unanimously by the other justices which found that the Court of Appeal had erred in four respects:Supreme Court Judgment, paragraphs 132–137 It misunderstood the role of the Special Immigration Appeals Commission and the courts on an appeal against the Home Secretary's decision to refuse leave to enter the United Kingdom. The scope of an appeal in such cases is limited to whether the decision is in accordance with section 6 of the Human Rights Act, a question which did not arise in Begum's appeal.Supreme Court Judgment, paragraph 133 It erred in its approach to the appeal against the dismissal of Begum's application for judicial review of the Home Secretary's refusal of leave to enter, making its own assessment of the requirements of national security, despite having no relevant evidence before it or any relevant findings of fact. Its approach failed to give the Home Secretary's assessment the respect it should have received.Supreme Court Judgment, paragraph 134 It was mistaken in its finding that, when an individual's right to a fair hearing of an appeal came into conflict with the requirements of national security, the right to a fair hearing must prevail. If a vital public interest, such as public safety, makes it impossible for a case to be fairly heard, then it cannot ordinarily be heard. The appeal should therefore be stayed until the appellant is in a position to play an effective part in it without public safety being compromised. In this case, it was not known how long it might be before that was possible.Supreme Court Judgment, paragraph 135 It mistakenly treated the Home Secretary's policy, intended for the guidance of Sajid Javid in the exercise of his discretion, as if it were a rule of law which must be obeyed and applied the wrong approach to considering whether the Home Secretary had acted lawfully.Supreme Court Judgment, paragraph 136