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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Begum, R. (on the application of) v Special Immigration Appeals Commission & Anor [2021] UKSC 7 (26 February 2021) URL: http://www.bailii.org/uk/cases/UKSC/2021/7.html Cite as: [2021] UKSC 7, [2021] Imm AR 879, [2021] INLR 316, [2021] 2 WLR 556, [2021] HRLR 7, [2021] 2 All ER 1063, [2021] AC 765, [2021] WLR(D) 131 |
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THE COURT ORDERED THAT:
1. The CONFIDENTIAL witness statement of Daniel Furner dated 30 August 2019 and its exhibits shall remain confidential to the parties and the court and, subject to further order of the court, shall not be available for inspection.
2. The witness relied on by Ms Begum, witness B, be granted anonymity in relation to the conduct of these proceedings and be identified only as “Witness B” and nothing may be published which, directly or indirectly, identifies Witness B as a witness in these proceedings.
3. The steps taken on behalf of the Secretary of State and Her Majesty’s Government to facilitate Ms Begum’s involvement in the deprivation appeal, as described in the Witness Statements of Lauren Cooper dated 12 October 2020 and 5 November 2020, shall be confidential and no party or other person shall publish or disclose the same.
[2021] UKSC 7
On appeal from: [2020] EWCA Civ 918
JUDGMENT
R (on the application of Begum) (Appellant) v Special Immigration Appeals Commission (Respondent)
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before
Lord Reed, President Lord Hodge, Deputy President Lady Black Lord Lloyd-Jones Lord Sales
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JUDGMENT GIVEN ON |
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26 February 2021 |
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Heard on 23 and 24 November 2020 |
Appellant (SSHD) |
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Respondent/Appellant (Begum) |
Sir James Eadie QC |
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Lord Pannick QC |
Jonathan Glasson QC |
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Tom Hickman QC |
David Blundell QC |
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Jessica Jones |
(Instructed by The Government Legal Department) |
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(Instructed by Birnberg Peirce Ltd) |
Special Advocates (written submissions only) |
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Intervener (1) Professor Guglielmo Verdirame QC |
Angus McCullough QC |
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Jason Pobjoy |
Adam Straw |
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Belinda McRae |
(Instructed by The Government Legal Department) |
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(Instructed by Leigh Day (London)) |
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Intervener (2) |
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Richard Hermer QC |
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Ayesha Christie |
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(Instructed by Liberty) |
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Intervener (3) |
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Felicity Gerry QC |
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Eamonn Kelly |
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(Instructed by JUSTICE) |
Interveners:-
(1) UN Special Rapporteur on Counter-Terrorism (written submissions only)
(2) Liberty
(3) JUSTICE
LORD REED: (with whom Lord Hodge, Lady Black, Lord Lloyd-Jones and Lord Sales agree)
Introduction
“As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.
The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.”
I shall refer to that decision as the deprivation decision. On the same date, Mr Javid made an order that Ms Begum “be deprived of her British citizenship on grounds of conduciveness to the public good”.
“… a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act
1998 …”
Ms Begum’s application was made on the understanding that, following the judgment of the Court of Appeal in R (W2) v Secretary of State for the Home Department [2017] EWCA Civ 2146; [2018] 1 WLR 2380 (“W2”), where a person claims that she cannot have a fair and effective appeal from a decision depriving her of citizenship from outside the United Kingdom, she should request leave to enter and, if it is refused, challenge that decision.
(1) Whether the deprivation decision rendered Ms Begum stateless.
(2) Whether the deprivation decision or the LTE decision was contrary to the Secretary of State’s extra-territorial human rights policy (explained in para 21 below) because it exposed her to a risk of death or of inhuman or degrading treatment.
(3) Whether she could have a fair and effective appeal against the deprivation decision from outside the United Kingdom and in Syria, and, if not, whether her appeal should be allowed on that ground alone.
The hearing on those issues was ordered to take place concurrently with the hearing of the LTE appeal.
9. On 7 February 2020 SIAC (Elisabeth Laing J, Upper Tribunal Judge Blum and Mr Roger Golland) handed down a judgment drafted by Elisabeth Laing J, holding that the deprivation decision did not make Ms Begum stateless, that the Secretary of State did not depart from his policy when he made the deprivation decision, and that although Ms Begum could not have an effective appeal against that decision in her current circumstances, it did not follow that her appeal succeeded. SIAC also decided that the LTE appeal should be dismissed: Begum v Secretary of State for the Home Department (Appeal No SC/163/2019) [2020] HRLR 7. On the same date Elisabeth Laing J handed down a judgment in the Administrative Court, holding that Ms Begum should be granted permission to apply for judicial review of the LTE decision, but that her application for judicial review should be dismissed: R (Begum) v Secretary of State for the Home Department [2020] EWHC 74 (Admin).
11. On 16 July 2020 the Court of Appeal and Divisional Court handed down a judgment given by Flaux LJ, with which King and Singh LJJ agreed: R (Begum) v Special Immigration Appeals Commission (UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism intervening) [2020] EWCA Civ 918; [2020] 1 WLR 4267. The Court of Appeal allowed Ms Begum’s appeal against SIAC’s decision in the LTE appeal, and her appeal against Elisabeth Laing J’s decision to dismiss the application for judicial review of the LTE decision. It ordered the Secretary of State to grant Ms Begum leave to enter the United Kingdom and to provide her with the necessary travel documents. The Divisional Court allowed Ms Begum’s application for judicial review of SIAC’s decision on the second issue in the deprivation appeal, concerning the Secretary of State’s policy, and remitted that issue to SIAC for re-determination. It dismissed Ms Begum’s application for judicial review of SIAC’s decision on the third issue in the deprivation appeal, namely whether her appeal should automatically be allowed if leave to enter the United Kingdom was refused.
13. This court therefore has before it appeals in three separate sets of proceedings:
(1) First, the Secretary of State has appealed against the Divisional Court’s decision to allow Ms Begum’s application for judicial review of SIAC’s decision concerning the Secretary of State’s policy. The issue arising in that appeal is whether the Divisional Court was wrong to conclude that SIAC had erred in determining that issue by applying principles of administrative law. There is also a cross-appeal in those proceedings by Ms Begum. The issue arising in the cross-appeal is whether the Divisional Court was wrong to reject her argument that the deprivation appeal should automatically be allowed if it could not be fairly and effectively pursued as a consequence of the refusal of her application for leave to enter the United Kingdom.
(2) Secondly, the Secretary of State has appealed against the Court of Appeal’s decision to allow Ms Begum’s appeal against SIAC’s decision dismissing the LTE appeal, and to order that leave to enter must be granted. The issue arising in that appeal is whether the Court of Appeal was wrong to conclude that leave to enter must be granted to Ms Begum because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision.
(3) Thirdly, the Secretary of State has appealed against the Court of Appeal’s decision allowing Ms Begum’s appeal against Elisabeth Laing J’s decision to dismiss the application for judicial review of the LTE decision, and ordering the Secretary of State to grant Ms Begum leave to enter the United Kingdom. The issue arising in that appeal is, again, whether the Court of Appeal was wrong to conclude that leave to enter must be granted to Ms Begum because she could not otherwise have a fair and effective hearing of her appeal against the deprivation decision.
The factual background
The background to the deprivation decision
“[T]he Secretary of State has a practice of not depriving individuals of British citizenship when they are not within the UK’s jurisdiction for ECHR purposes if she is satisfied that doing so would expose those individuals to a real risk of treatment which would constitute a breach of article 2 or 3 if they were within the UK’s jurisdiction and those articles were engaged.”
That statement of practice was the subject of the second issue decided by SIAC in the deprivation appeal (see para 7 above). It is referred to in this judgment as the Secretary of State’s extra-territorial human rights policy, or more simply as the Secretary of State’s policy.
“In its judgment in X2 [X2 v Secretary of State for the Home Department (Appeal No SC/132/2016) (unreported), [2018] UKSIAC 1_SC_132_2016, given 18 April 2018], SIAC addressed what the Home Secretary is required to assess in order to comply with his stated practice. SIAC concluded that the risks which the Home Secretary is required to assess are risks of harm which would breach articles 2 or 3 of the ECHR (if they applied) that are a direct consequence of the decision to deprive. SIAC described a two-stage test which it drew from the case law of the European Court of Human Rights: (i) a test of ‘direct consequence’ as the criterion for establishing state responsibility, liability being incurred if a state takes action which as a direct consequence exposes the individual to the relevant risk; and (ii) a test of ‘foreseeability’ as the criterion for establishing whether there are substantial grounds for believing the individual would be exposed to the relevant risk. The risk must be both foreseeable and a direct consequence of the deprivation.”
“We do not consider that a repatriation to Bangladesh is a foreseeable outcome of deprivation and as such the Home Secretary may consider that there is no real risk of return - let alone of mistreatment on return - for the purpose of complying with his practice.”
The background to the LTE decision
The jurisdiction and powers of SIAC
28. Before considering the issues in the appeals before the court, it is necessary first to consider in detail the jurisdiction and powers of SIAC on appeals under sections 2 and 2B of the 1997 Act. This is an issue on which differing views were taken by SIAC and the Court of Appeal in the present case. In relation to the appeal under section 2 against the LTE decision, SIAC proceeded on the basis that it was confined to the question whether there had been a breach of the Secretary of State’s duty under section 6 of the Human Rights Act
1998. In relation to the appeal under section 2B of the 1997 Act against the deprivation decision, SIAC’s approach is encapsulated in para 138 of its judgment, where, in relation to the issue of the Secretary of State’s compliance with his policy, Elisabeth Laing J stated:
“We remind ourselves that we are not deciding this question on its merits. We must approach it, rather, by applying the principles of judicial review.”
“… SIAC took the wrong approach when it said at para 138 that it would apply the principles of judicial review to the issue of whether the deprivation decision breached the extra-territorial policy of the Secretary of State. The appeals to SIAC under sections 2 and 2B of the 1997 Act are full merits appeals and as such it is for SIAC to decide for itself whether the decision of the Secretary of State in question was justified on the basis of all the evidence before it, not simply determine whether the decision of the Secretary of State was a reasonable and rational one on the material before him as in a claim for judicial review.”
In support of that view, Flaux LJ cited the judgment of SIAC, given by Mitting J, in Al-Jedda v Secretary of State for the Home Department (Appeal No SC/66/2008) (unreported), [2009] UKSIAC 66/2008, given 7 April 2009, para 7, the judgment of the Divisional Court in R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin), para 240, and the judgment of Lord Wilson in Al-Jedda v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2013] UKSC 62; [2014] AC 253, para 30. Counsel for Ms Begum and for Liberty have also cited a number of other authorities in support of the Court of Appeal’s position. Counsel for the Secretary of State, on the other hand, supported the position adopted by SIAC.
31. SIAC was created by the 1997 Act in order to enable the United Kingdom to comply with the ECHR as interpreted by the European Court of Human Rights in the case of Chahal v United Kingdom (1996) 23 EHRR 413. That case concerned a deportation decision. There was at that time no right of appeal against such a decision where the order was made on the grounds that the person’s deportation was conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and another country, or for other reasons of a political nature. Instead of a right of appeal, there was a right to make representations to an extra-statutory panel appointed by the Home Secretary to advise him. In Chahal, the European Court decided that this procedure was inadequate to safeguard the deportee’s rights under article 13 and, if he was detained, article 5(4), of the ECHR.
Appeals to SIAC under section 2 of the 1997 Act
“(1) A person may appeal to the Special Immigration Appeals Commission against a decision if -
(a) he would be able to appeal against the decision under section 82(1), 83(2) or 83A(2) of the Nationality, Immigration and Asylum Act 2002 but for a certificate of the Secretary of State under section 97 of that Act (national security, &c), or
(b) an appeal against the decision under section 82(1), 83(2) or 83A(2) of that Act lapsed under section 99 of that Act by virtue of a certificate of the Secretary of State under section 97 of that Act.”
An appeal therefore lies to SIAC where an appeal would have lain to the Tribunal under (inter alia) section 82(1) of the 2002 Act but for a certificate of the Secretary of State under section 97 of that Act.
37. In particular, in terms of the version of section 84 which is currently in force (as substituted by section 15 of the 2014 Act with effect from 20 October 2014), an appeal against the refusal of a human rights claim “must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act
1998”. Ms Begum’s appeal against the LTE decision is therefore limited to the refusal of her human rights claim, and can only be brought on the ground that the refusal of that claim is unlawful under section 6 of the
Human Rights Act
. It has been clear since the decision in Huang v Secretary of State for the Home Department [2007] 2 AC 167 that SIAC’s task, in considering an appeal on that ground, is not a secondary, reviewing, function dependent on establishing that the Secretary of State misdirected himself or acted irrationally, but that SIAC must decide for itself whether the impugned decision is lawful.
Appeals to SIAC under section 2B of the 1997 Act
“A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (c 61) (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2) (and section 40A(3)(a) shall have effect in relation to appeals under this section).”
41. In relation to the scope of the jurisdiction created by section 2B, counsel for Ms Begum and for Liberty referred to some decisions of the Upper Tribunal in which the jurisdiction of the First-tier Tribunal in an appeal under section 40A of the 1981 Act was considered. The earliest of them is Deliallisi v Secretary of State for the Home Department [2013] UKUT 439 (IAC) (unreported) given 30 August 2013, which was concerned with deprivation of citizenship under section 40(3) of the 1981 Act. That provision applies where the citizenship results from registration or naturalisation and “the Secretary of State is satisfied that the registration or naturalisation was obtained by means of - (a) fraud, (b) false representation, or (c) concealment of a material fact”.
42. In that case, the First-tier Tribunal concluded that it had no power to exercise the Secretary of State’s discretion differently, since such a power could only be conferred by express statutory provision. Subject to compliance with the Human Rights Act
, the scope of an appeal under section 40A of the 1981 Act, in the view of the First-tier Tribunal, was to examine the facts on which the Secretary of State made the decision, examine the evidence and determine whether the basis upon which the decision was made was made out.
43. The Upper Tribunal, chaired by Upper Tribunal Judge Lane, adopted the opposite approach, holding (para 31) that “[i]f the legislature confers a right of appeal against a decision, then, in the absence of express wording limiting the nature of that appeal, it should be treated as requiring the appellate body to exercise afresh any judgement or discretion employed in reaching the decision against which the appeal is brought”. The judge found support for that position in the earlier judgment of the Upper Tribunal in Arusha and Demushi (Deprivation of Citizenship) [2012] UKUT 80 (IAC); [2012] Imm AR 645, another case concerned with a decision made under section 40(3). However, the judge mistakenly understood the judgment in that case to have “approved” (para 28) remarks made by the First-tier Tribunal, which the Upper Tribunal had in reality merely recorded (see paras 11 and 14 of its judgment). The judge also found support in remarks made by a minister in the course of a debate during the passage of the 2002 Act through Parliament, which he mistakenly treated (para 34) as revealing Parliament’s intention, applying Pepper v Hart [1993] AC 593 in a manner which was disapproved in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 58-60. The judge also cited textbook authority that a fresh exercise of judgment was excluded if the decision involved a consideration of matters which were non-justiciable, and stated that that could not possibly be said of a decision under section 40: a questionable proposition so far as some decisions under section 40(2) are concerned, but one which can be accepted in relation to section 40(3). However, the apparent reasoning, that (1) an appellate body’s ability to re-take a discretionary decision is excluded if the subject-matter is non-justiciable, and (2) the subject-matter of this decision is not non-justiciable, therefore (3) this decision can be re-taken by the appellate body, is fallacious. It depends on the unstated premise that an appellate body can always re-take a discretionary decision unless the subject-matter is non-justiciable: a premise which, as explained below, is incorrect. The judge also referred in Deliallisi to a number of potentially helpful authorities concerned with the scope of appellate jurisdiction, but did not discuss them. It will be necessary to return to some of those authorities.
44. A different approach was adopted by the Upper Tribunal, chaired by Mr C M G Ockelton, in Pirzada (Deprivation of Citizenship: General Principles) [2017] UKUT 196 (IAC); [2017] Imm AR 1257. He stated at para 9 of his judgment that section 84 of the 2002 Act did not apply to appeals under section 40A of the 1981 Act, but added that the grounds of appeal, in appeals under section 40A of the 1981 Act, must be directed to whether the Secretary of State’s decision was empowered by section 40, and that “[t]here is no suggestion that a Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-sections (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State’s discretion.”
45. In BA (Deprivation of Citizenship: Appeals) [2018] UKUT 85 (IAC); [2018] Imm AR 807 the Upper Tribunal, chaired by Lane J, repeated what had been said in Deliallisi and stated that the passage just cited from Pirzada was accordingly not to be followed. In support of his view of the proper ambit of an appeal under section 40A, Lane J cited the decision of this court in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799. However, that decision was not concerned with an appeal under section 40A, but with an immigration appeal subject to the pre-2014 version of section 84 of the 2002 Act (para 36 above), and was therefore not in point.
47. The first is the decision of the Court of Appeal in John Dee Ltd v Comrs of Customs and Excise [1995] STC 941. The case concerned the jurisdiction of the VAT Tribunal on an appeal from a decision of the Commissioners that a taxpayer should provide security for the payment of tax. The Commissioners had a discretion to require security, in terms of the relevant legislation, “[w]here it appears to the Commissioners requisite to do so for the protection of the revenue”. No statutory guidance was given as to the scope of an appeal against the exercise of the power or as to the powers of the tribunal on such an appeal. The tribunal was, however, given powers to hear evidence and make orders relating to discovery.
50. The judgment in Deliallisi also mentioned the case of Banbury Visionplus Ltd v Revenue and Customs Comrs [2006] EWHC 1024 (Ch); [2006] STC 1568, where Etherton J distinguished John Dee and held that the appellate jurisdiction was of wider scope. He identified the critical feature of John Dee as being that “the statutory pre-condition for the imposition by the Commissioners of security was that ‘it appears to the Commissioners requisite to do so for the protection of the revenue’” (para 48). In other words, “the legislature had expressly conferred on the Commissioners alone, and not on the tribunal or the court, the assessment of whether security was necessary for the protection of the revenue”. In the case before him, on the other hand, the Commissioners’ discretion was limited to the choice of the means of achieving a specified statutory objective. A decision of the Commissioners could therefore be challenged on the ground that it did not comply with their duty to achieve that objective: a question which it was fully within the jurisdiction of the appellate tribunal to decide.
51. In the present appeals, counsel for the Secretary of State cited the decision of the House of Lords in the case of Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153. The case was concerned with an appeal to SIAC under section 2 of the 1997 Act against a deportation decision made on the basis that “the Secretary of State deems [the person’s] deportation to be conducive to the public good”. In forming that view in relation to Mr Rehman, the Secretary of State relied on interests of national security.
“The Secretary of State … is not merely finding facts but forming an executive judgment or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a ‘high civil degree of probability’. Establishing a degree of probability does not seem relevant to the reaching of a conclusion on whether there should be deportation for the public good.”
He also stated at para 26 that “the Commission must give due weight to the assessment and conclusions of the Secretary of State”, since he was “undoubtedly in the best position to judge what national security requires”. The assessment of what was needed in the light of changing circumstances was primarily for him.
“SIAC were … correct to regard it as being their responsibility to determine questions of fact and law. The fact that Parliament has given SIAC responsibility of reviewing the manner in which the Secretary of State has exercised his discretion, inevitably leads to this conclusion. Without statutory intervention, this is not a role which a court readily adopts.” (Emphasis added)
As the last sentence indicates, Lord Woolf treated SIAC’s express power to review the merits of the Secretary of State’s exercise of his discretion as the key to the scope of its jurisdiction.
“However broad the jurisdiction of a court or tribunal, whether at first instance or on appeal, it is exercising a judicial function and the exercise of that function must recognise the constitutional boundaries between judicial, executive and legislative power.”
In particular, as Lord Hoffmann went on to state at para 50, although what was meant by “national security” in the 1971 Act was a question of law (to which the answer was “the security of the United Kingdom and its people”), the question of whether something was in the interests of national security was not a question of law:
“It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”
57. There were, however, at least three important functions which SIAC served under section 4 of the 1997 Act, as Lord Hoffmann explained at para 54. First, the factual basis for the executive’s opinion that deportation would be in the interests of national security must be established by evidence. It was therefore open to SIAC to say that there was no factual basis for the Secretary of State’s opinion. However, as Lord Hoffmann noted, SIAC’s ability to differ from the Secretary of State’s evaluation in that respect was limited by considerations inherent in an appellate process. Secondly, SIAC could reject the Home Secretary’s opinion on the ground that it was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. Thirdly, an appeal to SIAC might turn upon issues which did not lie within the exclusive province of the executive, such as compliance with article 3 of the ECHR (as given effect by the Human Rights Act
).
“It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee.”
“They arise from the need, in matters of judgment and evaluation of evidence, to show proper deference to the primary decision-maker.”
He pointed out at para 57, first, that SIAC was not the primary decision-maker, and that it was institutionally less well qualified than the Secretary of State:
“Not only is the decision entrusted to the Home Secretary but he also has the advantage of a wide range of advice from people with day-to-day involvement in security matters which the Commission, despite its specialist membership, cannot match.”
“In such questions an appellate body traditionally allows a considerable margin to the primary decision-maker. Even if the appellate body prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained.”
Lord Hoffmann acknowledged that this limited approach might not be necessary in relation to every issue which SIAC had to decide. For example, the approach to whether the rights of an appellant under article 3 of the ECHR were likely to be infringed might be very different.
“It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.”
These points have been reiterated in later cases, including A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 (“A”) and R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60; [2015] AC 945.
64. It is also necessary to bear in mind that the appellate process must enable the procedural requirements of the ECHR to be satisfied, since many appeals will raise issues under the Human Rights Act
. Those requirements will vary, depending on the context of the case in question. In the context of immigration control, including the exclusion of aliens, the case law of the European Court of Human Rights establishes that they generally include, in particular, that the appellant must be able to challenge the legality of the measure taken against him, its compatibility with absolute rights such as those arising under articles 2 and 3 of the ECHR, and the proportionality of any interference with qualified rights such as those arising under article 8. SIAC must also be able to allow an appeal in cases where the Secretary of State’s assessment of the requirements of national security has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or arbitrary: see, for example, IR v United Kingdom (2014) 58 EHRR SE14, paras 57-58 and 63-65 (concerning an appeal under section 2 of the 1997 Act, prior to the amendments made by the 2014 Act). A more limited approach has been adopted in cases concerned with deprivation of citizenship. The European Court of Human Rights has accepted that an arbitrary denial or deprivation of citizenship may, in certain circumstances, raise an issue under article 8. In determining whether there is a breach of that article, the Court has addressed whether the revocation was arbitrary (not whether it was proportionate), and what the consequences of revocation were for the applicant. In determining arbitrariness, the Court considers whether the deprivation was in accordance with the law, whether the authorities acted diligently and swiftly, and whether the person deprived of citizenship was afforded the procedural safeguards required by article 8: see, for example, K2 v United Kingdom (2017) 64 EHRR SE18, paras 49-50 and 54-61.
66. In relation to the nature of the decision under appeal, section 40(2) provides:
“(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.”
The opening words (“The Secretary of State may …”) indicate that decisions under section 40(2) are made by the Secretary of State in the exercise of his discretion. The discretion is one which Parliament has confided to the Secretary of State. In the absence of any provision to the contrary, it must therefore be exercised by the Secretary of State and by no one else. There is no indication in either the 1981 Act or the 1997 Act, in its present form, that Parliament intended the discretion to be exercised by or at the direction of SIAC. SIAC can, however, review the Secretary of State’s exercise of his discretion and set it aside in cases where an appeal is allowed, as explained below.
68. As explained at paras 46-50, 54 and 66-67 above, appellate courts and tribunals cannot generally decide how a statutory discretion conferred upon the primary decision-maker ought to have been exercised, or exercise the discretion themselves, in the absence of any statutory provision authorising them to do so (such as existed, in relation to appeals under section 2 of the 1997 Act, under section 4(1) of the 1997 Act as originally enacted, and under sections 84-86 of the 2002 Act prior to their amendment in 2014: see paras 34 and 36 above). They are in general restricted to considering whether the decision-maker has acted in a way in which no reasonable decision-maker could have acted, or whether he has taken into account some irrelevant matter or has disregarded something to which he should have given weight, or has erred on a point of law: an issue which encompasses the consideration of factual questions, as appears, in the context of statutory appeals, from Edwards (Inspector of Taxes) v Bairstow [1956] AC 14. They must also determine for themselves the compatibility of the decision with the obligations of the decision-maker under the Human Rights Act
, where such a question arises.
69. For the reasons I have explained, that appears to me to be an apt description of the role of SIAC in an appeal against a decision taken under section 40(2). That is not to say that SIAC’s jurisdiction is supervisory rather than appellate. Its jurisdiction is appellate, and references to a supervisory jurisdiction in this context are capable of being a source of confusion. Nevertheless, the characterisation of a jurisdiction as appellate does not determine the principles of law which the appellate body is to apply. As has been explained, they depend upon the nature of the decision under appeal and the relevant statutory provisions. Different principles may even apply to the same decision, where it has a number of aspects giving rise to different considerations, or where different statutory provisions are applicable. So, for example, in appeals under section 2B of the 1997 Act against decisions made under section 40(2) of the 1981 Act, the principles to be applied by SIAC in reviewing the Secretary of State’s exercise of his discretion are largely the same as those applicable in administrative law, as I have explained. But if a question arises as to whether the Secretary of State has acted incompatibly with the appellant’s Convention rights, contrary to section 6 of the Human Rights Act
, SIAC has to determine that matter objectively on the basis of its own assessment.
71. Nevertheless, SIAC has a number of important functions to perform on an appeal against a decision under section 40(2). First, it can assess whether the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted, or has taken into account some irrelevant matter, or has disregarded something to which he should have given weight, or has been guilty of some procedural impropriety. In doing so, SIAC has to bear in mind the serious nature of a deprivation of citizenship, and the severity of the consequences which can flow from such a decision. Secondly, it can consider whether the Secretary of State has erred in law, including whether he has made findings of fact which are unsupported by any evidence or are based upon a view of the evidence which could not reasonably be held. Thirdly, it can determine whether the Secretary of State has complied with section 40(4), which provides that the Secretary of State may not make an order under section 40(2) “if he is satisfied that the order would make a person stateless”. Fourthly, it can consider whether the Secretary of State has acted in breach of any other legal principles applicable to his decision, such as the obligation arising in appropriate cases under section 6 of the Human Rights Act
. In carrying out those functions, SIAC may well have to consider relevant evidence. It has to bear in mind that some decisions may involve considerations which are not justiciable, and that due weight has to be given to the findings, evaluations and policies of the Secretary of State, as Lord Hoffmann explained in Rehman and Lord Bingham reiterated in A. In reviewing compliance with the
Human Rights Act
, it has to make its own independent assessment.
73. The first was the judgment of SIAC itself, given by Mitting J, in Al-Jedda v Secretary of State for the Home Department (Appeal No SC/66/2008), [2009] UKSIAC 66/2008, (unreported) given 7 April 2009. Mitting J rejected a submission in that case that SIAC’s powers were narrower in an appeal under section 2B of the 1997 Act than in an appeal under section 2, because section 86 of the 2002 Act applied to the latter but not to the former. Section 86(3) in its then form required that an appeal must be allowed if the Tribunal thought that a discretion exercised in making the decision in question should have been exercised differently (see para 36 above). Mitting J considered, first, that the non-application of that provision “enlarges rather than diminishes the power of the Tribunal/Commission, by leaving it free to decide what to do in the light of its findings”, and secondly, that “[a]n appeal is a challenge to the merits of the decision itself, not to the exercise of a discretion to make it” (para 7). For the reasons I have explained, I am unable to agree with that view.
74. Mitting J went on to state at para 8 that the scheme of appeals to SIAC was “described in detail” in the judgment of the Court of Appeal in Rehman [2003] 1 AC 153, paras 4-16, and in the judgment of Lord Woolf CJ in Secretary of State for the Home Department v M [2004] EWCA Civ 324; [2004] 2 All ER 863, paras 6-16. In the first of those cases, however, what was described was the scheme governing appeals under section 2 of the 1997 Act, not section 2B, at a time when section 4 was in force, giving SIAC a very broad jurisdiction: see para 34 above. Section 4 had been repealed by the time of Mitting J’s judgment, and no similar provision had ever applied to appeals under section 2B.
77. The other authority cited by the Court of Appeal and the Divisional Court was the judgment of Lord Wilson in Al-Jedda v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2013] UKSC 62; [2014] AC 253. This was an appeal in the same proceedings as Mitting J’s judgment (which had been overturned on appeal, following which another constitution of SIAC had taken a fresh decision). The only issue in the appeal was whether section 40(4) of the 1981 Act (the prohibition on making an order depriving a person of citizenship if the Secretary of State is satisfied that it would make the person stateless) prevented the Secretary of State from making a deprivation order if she considered that the person would be stateless only because he had not made an application for Iraqi nationality. That was a question of law falling squarely within SIAC’s jurisdiction.
“Parliament has provided a right of appeal against [the Secretary of State’s] conclusion that one or other of the grounds [for deprivation of citizenship] exist and/or against her refusal to conclude that the order would make the person stateless; and it has been held and is common ground that such is an appeal in which it is for the appellate body to determine for itself whether the ground exists and/or whether the order would make the person stateless (albeit that in those respects it may choose to give some weight to the views of the Secretary of State) and not simply to determine whether she had reason to be satisfied of those matters: B2 v Secretary of State for the Home Department [2013] EWCA Civ 616 at para 96, Jackson LJ.”
79. In that passage, which appears in the section of his judgment headed “Argument”, Lord Wilson was not laying down any rule of law. In the first place, he was recording a concession (“it has been held and is common ground …”). Secondly, it is apparent that he was not endorsing the concession, or the approach adopted in B2: he said, immediately before the passage just cited, that the word “satisfied” “should, if possible, be given some value”, but that “I confess, however, that I do not find it easy to identify what that value should be”. That issue, in relation to section 40(4), has been the subject of later judicial consideration, but lies beyond the scope of the present proceedings. Thirdly, the judgment contains no discussion of the matter which was said to be common ground, nor any reference to the relevant authorities discussed above. It is of no relevance in the present context in any event, since the dictum cited (B2 v Secretary of State for the Home Department [2013] EWCA Civ 616, para 96), was concerned solely with section 40(4), which was held by the Court of Appeal to have been intended to give domestic effect to article 8(1) of the Convention on the Reduction of Statelessness of 1961. On that basis, the Court of Appeal considered that section 40(4) should be construed and applied consistently with that provision.
80. Another decision of this court which was relied on by counsel for Ms Begum was Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591, which was an appeal against the decision of the Court of Appeal in B2 v Secretary of State for the Home Department. This court appears to have mistakenly understood that appeals under section 2B of the 1997 Act were governed by section 4 of that Act, which had in fact been repealed by the 2002 Act and had never applied to appeals under section 2B: see para 5. Nevertheless, the judgments proceeded on the basis that SIAC’s jurisdiction required it to review the reasonableness or rationality of the Secretary of State’s decision under section 40(2): see, for example, paras 59-60, 98, 103, 107-108 and 112.
81. In the present case, counsel for Ms Begum relied on Lord Sumption’s statement at para 108:
“The suggestion that at common law the court cannot itself assess the appropriateness of the balance drawn by the Home Secretary between [a person’s] right to British nationality and the relevant public interests engaged, is in my opinion mistaken. In doing so, the court must of course have regard to the fact that the Home Secretary is the statutory decision-maker, and to the executive’s special institutional competence in the area of national security.”
As is clear from para 107 of his judgment, Lord Sumption was referring to the common law test of rationality or reasonableness. As he observed, the application of that test “must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject matter”. These observations are consistent with the approach which I have described at paras 66-71 above. They are not consistent with an approach which would place SIAC “in the shoes” of the decision-maker and treat it as competent to re-consider the matter de novo or to re-take the decision itself.
The jurisdiction and role of the Court of Appeal and the Divisional Court
(1) Ms Begum’s cross-appeal against the Divisional Court’s decision in relation to the deprivation appeal
85. In its judgment, SIAC stated in the first sentence of para 143:
“We accept that, in her current circumstances, A [Ms Begum] cannot play any meaningful part in her appeal, and that, to that extent, the appeal will not be fair and effective.”
SIAC did not accept that the consequence of that situation was that Ms Begum’s appeal must be allowed. It observed at para 144 that the difficulty with Ms Begum’s argument was that, if it was correct, the fact that a person who had been deprived of her nationality on grounds of national security was unable to instruct lawyers or to take part in her appeal entailed, in and of itself, that her appeal should succeed, without any examination of its merits, and without any consideration of the national security case against her. It also noted that Ms Begum’s difficulties were not the consequence of the deprivation decision. It commented at para 145 that the argument attempted to derive from uncontroversial points about the general characteristics of a statutory right of appeal a universal rule that every deprivation appeal must be effective. SIAC did not consider that there was any warrant for such a rule in the statutory scheme. It would convert a right of appeal into an automatic means of overturning a deprivation decision, regardless of its merits, if for whatever reason an appellant was unable to take part in her appeal.
“It seems to me to 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 important fact … that Ms Begum’s predicament is in no sense the fault of the Secretary of State.”
91. Where, on the other hand, the difficulty is of such an extreme nature that not merely is one party placed at a forensic disadvantage, but it is impossible for the case to be fairly tried, the interests of justice may require a stay of proceedings. The point is illustrated by the case of Carnduff v Rock [2001] EWCA Civ 680; [2001] 1 WLR 1786, where a police informer brought an action to recover reasonable remuneration for information he had supplied. The Court of Appeal held that, since a fair trial of the issues would require the police to disclose material which should in the public interest remain confidential, and the public interest in its confidentiality outweighed the countervailing public interest in having the claim litigated, it followed that the claim should be struck out. Laws LJ observed at para 36 that the case “cannot, in truth, be justly tried at all”. A subsequent complaint to the European Court of Human Rights under article 6 of the ECHR was held to be manifestly ill-founded: Carnduff v United Kingdom (Application No 18905/02), [2004] ECHR 731, (unreported) given 10 February 2004.
92. The correctness of that decision is not in doubt. Lord Mance and Lord Kerr cited it in Tariq v Home Office [2011] UKSC 35; [2012] 1 AC 452, when considering the claimant’s argument that a closed material procedure should not be used to protect national security material which was essential to the defence of the claim, but the production of which would be contrary to the public interest. Lord Mance, with whose reasoning Lord Phillips, Lord Hope, Lady Hale, Lord Clarke, Lord Kerr and Lord Dyson agreed, observed at para 39 that, if that argument was accepted:
“… a court might, following the Court of Appeal decision in Carnduff v Rock [2001] 1 WLR 1786, determine that, if the national security material could not be deployed in defence, the claim might not be fairly justiciable at all … Under that possibility, it would be Mr Tariq’s case which would fail in limine.”
(See also the judgment of Lord Kerr at para 110.) The correctness of the approach adopted in Carnduff v Rock, in circumstances where a claim cannot be justly tried, was also accepted by all the members of the court in Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531: see paras 23, 50, 76, 86, 88, 103, 108 and 157.
93. Another example, in a different context, is the case of Hamilton v Al Fayed [2001] 1 AC 395. The plaintiff, a former Member of Parliament, brought proceedings for defamation in respect of allegations which the defendant had made against him, and which had been upheld by a Parliamentary committee following an inquiry. He waived his Parliamentary privilege pursuant to section 13 of the Defamation Act 1996. The House of Lords held that, but for the waiver, the principle of Parliamentary privilege would have made a fair trial of the action impossible, by preventing any challenge to the veracity of evidence given to the Parliamentary committee. It would therefore have necessitated a stay of the action, following the approach approved by the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321.
96. I should add that the authorities principally relied upon by counsel for Ms Begum do not appear to me to be in point. In AN v Secretary of State for the Home Department [2010] EWCA Civ 869, the Secretary of State made a non-derogating control order which had the effect of interfering with the claimant’s liberty. When the order was challenged in accordance with the relevant statutory procedure, the Secretary of State was unable to produce even a gist of the material justifying the order, for reasons of national security. Following Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, the challenge to the order was upheld, since it had not been shown to be justified at a hearing which was compliant with article 6 of the ECHR, as the statutory scheme required. That decision was not an example of a claimant succeeding because he was unable to present an effective appeal. He succeeded because the statutory scheme required the Secretary of State to justify the order at a hearing which complied with article 6 of the ECHR, and he was unable to do so. There is no difficulty of that kind in the present case.
97. For the foregoing reasons, I conclude that Ms Begum’s cross-appeal should be dismissed.
(2) The Secretary of State’s appeal against the Court of Appeal’s decision in the LTE appeal, and (3) the Secretary of State’s appeal against the Court of Appeal’s decision in the proceedings for judicial review of the LTE decision
100. SIAC did not discuss the LTE appeal separately from the deprivation appeal, but it noted at paras 188-189 that the reasoning in R (W2) v Secretary of State for the Home Department [2017] EWCA Civ 2146; [2018] 1 WLR 2380, an article 8 case where it had been held that the effective appeal issue could be raised in an appeal against the refusal of leave to enter, did not apply in a case where the ECHR was not engaged. That follows from the fact that an LTE appeal can only be brought against the refusal of a human rights claim, on the ground that the decision is unlawful under section 6 of the Human Rights Act
, as explained in paras 32-37 above.
“First, the suggestion that Ms Begum’s appeal should be stayed indefinitely in circumstances where she is being detained by the SDF in the camp, does nothing to address the foreseeable risk if she is transferred to Iraq or Bangladesh, which is that in either of those countries she could be unlawfully killed or suffer mistreatment.
Second, it seems to me that simply to stay her appeal indefinitely is 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.”
104. In relation to this part of Flaux LJ’s judgment, a number of observations might be made. First, SIAC had made no finding that there was a foreseeable risk that Ms Begum would be transferred to Iraq or Bangladesh, let alone that she could be unlawfully killed or mistreated there. The Court of Appeal could not itself make such a finding. Ms Begum’s appeal against SIAC’s decision was confined by statute to a point of law: see para 82 above. Nor did Ms Begum’s appeal against the decision of the Administrative Court confer a fact-finding jurisdiction on the Court of Appeal. In the absence of such a finding, the risk of mistreatment if Ms Begum were transferred to Iraq or Bangladesh was immaterial. Secondly, the risk of transfer to Iraq or Bangladesh, and possible mistreatment there, was in any event irrelevant to the question of how the court should respond to Ms Begum’s inability to pursue an effective appeal while she continued to be detained in the camp. The risk of mistreatment was a separate issue, which arose in relation to the Secretary of State’s application of his extra-territorial human rights policy. Thirdly, it seems to me to be apparent from the terms of its judgment that, when SIAC found that Ms Begum could not play an effective part in the deprivation appeal, and suggested that the appeal might be stayed, it was not excluding the possibility that there might be a relevant change in her circumstances, although not necessarily in the camp. On the contrary, it had that possibility in its contemplation when it suggested a stay of the appeal, at para 191, “in the hope that, at some point in the future, she will be in a better position to take part in it”. Fourthly, the only issue which could properly be raised in Ms Begum’s LTE appeal was whether the LTE decision was unlawful under section 6 of the Human Rights Act
1998, in so far as it refused her human rights claim.
106. Flaux LJ reached that conclusion notwithstanding the national security concerns about Ms Begum. In relation to those, Flaux LJ made a number of points. First, he stated that the assessment of the risk posed by Ms Begum “would appear to be at a lower level of seriousness than in the case of U2” (para 119). U2 was the designation given to the appellant in the case of U2 v Secretary of State for the Home Department (Appeal No SC/130/2016) (unreported), [2019] UKSIAC SC_130_2016, given 19 December 2019, where SIAC rejected an argument that he could be allowed to return to the United Kingdom since there were adequate measures available within this country to address the risk which he posed. Secondly, Flaux LJ stated that “[i]t seems to me that, given the difference in level of seriousness between U2 and Ms Begum, the national security concerns about her could be addressed and managed if she returns to the United Kingdom”, either by her being arrested and charged upon her arrival in the United Kingdom, or by her being made the subject of a TPIM (ie, a measure taken under the Terrorism Prevention and Investigation Measures Act 2011) (para 120). Thirdly, he stated that “given that the only way in which she 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 the LTE appeals should be allowed” (para 121).
107. It is necessary, with respect, to make a number of critical observations about this part of Flaux LJ’s judgment. First, there was no basis for allowing the LTE appeal. As has been explained, the only ground on which such an appeal could be brought was that the LTE decision was unlawful under section 6 of the Human Rights Act
. No such ground was argued before the Court of Appeal: counsel for Ms Begum put her case solely on the basis of common law principles. The only context in which those arguments could properly be considered was in her appeal against the dismissal of her application for judicial review of the LTE decision. Her counsel pointed this out to the Court of Appeal, stating in their skeleton argument that “[g]iven that [Ms Begum] puts her case on the basis of common law principles, she submits that it would be more appropriate for the court to allow her appeal from [Elisabeth] Laing J’s refusal of her judicial review of the LTE decision”. They reiterated the point when the draft judgment was circulated, correctly stating:
“The appellant draws to the court’s attention the fact that since its reasoning is based on common law principles not ECHR, the reasoning does not explain how the LTE appeal from SIAC (as opposed to the LTE appeal from the Administrative Court) came to be allowed. The LTE appeal from SIAC (pursuant to section 2 of the SIAC Act 1997) is confined to issues arising under the Human Rights Act
1998. It is only necessary for the court to allow the LTE appeal from the Administrative Court to give effect to its judgment.”
(4) The Secretary of State’s appeal against the Divisional Court’s decision to allow Ms Begum’s application for judicial review of SIAC’s decision concerning the Secretary of State’s policy
“The question which the Policy posed for the Secretary of State was whether it was a foreseeable and a direct consequence of Decision 1 [the deprivation decision] that there were substantial grounds for believing that A [Ms Begum] would be exposed to a real risk of ill treatment breaching the ECHR … The question for us is whether the Secretary of State was entitled, on the material before him, to decide that it was not. We remind ourselves that we are not deciding this question on its merits. We must approach it, rather, by applying the principles of judicial review.”
“The appeals to SIAC under sections 2 and 2B of the 1997 Act are full merits appeals and as such it is for SIAC to decide for itself whether the decision of the Secretary of State in question was justified on the basis of all the evidence before it, not simply determine whether the decision of the Secretary of State was a reasonable and rational one on the material before him as in a claim for judicial review.”
Flaux LJ cited the judgment of SIAC, given by Mitting J, in Al-Jedda v Secretary of State for the Home Department, which was discussed at paras 73-76 above, and the judgment of Lord Wilson in Al-Jedda v Secretary of State for the Home Department, para 30, which was discussed at paras 77-79 above, in support of that view. For the reasons there explained, neither judgment provided reliable support for Flaux LJ’s approach. He also cited the judgment of the Divisional Court in R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin), para 240, which is discussed at paras 127-128 below.
117. In my respectful opinion, however, it was the Court of Appeal rather than SIAC which erred in its approach to this matter. Flaux LJ’s reference to the appeal under section 2 of the 1997 Act against the LTE decision can immediately be put to one side. As was explained in paras 32-37 above, an appeal under section 2 is subject to section 84(2) of the 2002 Act, in terms of which the appeal “must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act
1998”. The Home Secretary’s extra-territorial human rights policy only applies in circumstances falling outside the scope of the
Human Rights Act
. Any question as to whether the policy was properly applied does not, therefore, impugn the lawfulness of the LTE decision under section 6 of the
Human Rights Act
, and accordingly falls outside the scope of an appeal against that decision under section 2 of the 1997 Act.
119. The scope of SIAC’s jurisdiction in an appeal against a decision taken under section 40(2) was summarised in para 71 above: first, to determine whether the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted, or has taken into account some irrelevant matter, or has disregarded something to which he should have given weight, or has been guilty of some procedural impropriety; secondly, to determine whether he has erred in law, for example by making findings of fact which are unsupported by any evidence or are based upon a view of the evidence which could not reasonably be held; thirdly, to determine whether he has complied with section 40(4); and fourthly, to determine whether he has acted in breach of any other legal principles applicable to his decision, such as the obligation arising in appropriate cases under section 6 of the Human Rights Act
.
120. The Court of Appeal approached the present issue as if the principles relevant to the Secretary of State’s application of his policy were indistinguishable from those which were relevant to his duties under the Human Rights Act
. That was, in my view, a misunderstanding. There are important differences between the legal principles applicable to a statutory duty and those which apply to an administrative policy. For example, where section 6(1) of the
Human Rights Act
applies, it is unlawful for the Home Secretary to act in a way which is incompatible with a Convention right. The person challenging a deprivation decision on the basis that it is contrary to section 6 is entitled not to be subjected to a violation of his Convention rights, and it is for SIAC to determine whether or not the decision would result in such a violation. In deciding that question, as was explained at para 37 above, SIAC must reach its own view of the compatibility of the decision with Convention rights, as an independent tribunal, rather than reviewing the decision of the Secretary of State. But the position is different where the person challenging the deprivation decision relies instead upon a practice or policy which the Secretary of State has said that he intends to follow. The policy does not confer on that person an enforceable legal right not to be subjected to a violation of his Convention rights (if they were applicable). Instead, the legal effect of the policy, like any other administrative policy, is to be found in principles of administrative law.
“The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.” (Emphasis added)
“[T]he Secretary of State has a practice of not depriving individuals of British citizenship when they are not within the UK’s jurisdiction for ECHR purposes if she is satisfied that doing so would expose those individuals to a real risk of treatment which would constitute a breach of article 2 or 3 if they were within the UK’s jurisdiction and those articles were engaged.”
Her successors in the office of Home Secretary have chosen to continue to follow that practice.
123. The adoption of that practice or policy has a number of legal consequences, under well-established principles of administrative law, but it does not alter the discretionary nature of the Secretary of State’s decision, or convert the practice into a rule of law. As Lord Clyde said in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295, para 143:
“The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions. … Provided that the policy is not regarded as binding and the authority still retains a free exercise of discretion the policy may serve the useful purpose of giving a reasonable guidance both to applicants and decision-makers.”
See also the fuller discussion of this issue by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407, 496-497.
124. It follows that policy is not law, and can be consciously departed from. However, a failure by a public authority to follow its policy without good reason can be open to challenge. There are many examples of discretionary decisions being successfully challenged on the ground that the relevant authority failed to have regard to its policy, misdirected itself as to the meaning of its policy, or departed from its policy without good reason. They include authorities on which counsel for Ms Begum relied, such as Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546, para 29. On the other hand, the question how the policy applies to the facts of a particular case is generally treated as a matter for the authority, subject to the Wednesbury requirement of reasonableness. That is most obviously the correct approach where, as in the present case, the application of the policy expressly depends upon the primary decision-maker’s exercise of judgment (“if she is satisfied that doing so would expose those individuals to a real risk …”).
125. That point is illustrated by the case of R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597, which concerned the Home Secretary’s policy concerning the use of immigration detention pending removal. The relevant policy document stated that there was a presumption in favour of temporary release, and that there must be strong grounds for believing that a person would not comply with conditions of temporary release for detention to be justified. It set out a list of factors to be taken into account when considering the need for detention, including the risk of absconding. The Home Secretary decided that the appellant should be detained, for reasons which included that he was otherwise likely to abscond. A challenge to that decision was rejected. The judge found that the decision was a rational one. On appeal, it was argued that the judge was wrong to analyse the matter in terms of the rationality of the decision: the court, it was argued, was not limited to applying a Wednesbury test, but was required to act as the primary decision-maker in deciding on the evidence whether detention was in accordance with the policy.
“… the power to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the court.”
It followed that “[t]he role of the court is supervisory, not that of a primary decision-maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power conferred on him by the statute.”
127. A different approach was adopted by the Divisional Court in the earlier case of R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin), in which the judgment was given by Richards LJ and Cranston J. This case, which was cited by Flaux LJ in support of his approach in the present proceedings, concerned the Defence Secretary’s policy in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK armed forces in the course of operations in Afghanistan. The policy required the Ministry of Defence and armed forces to ensure that detained persons were not transferred from UK custody to any nation where there was a real risk at the time of transfer that they would suffer torture or serious mistreatment. It was alleged that transfers could not proceed, consistently with the policy. At para 240, the court recorded counsel for the Defence Secretary as submitting that the relevant question was whether the Secretary of State could properly have concluded that there was no real risk. Counsel accepted, however, that the court would apply anxious scrutiny in answering that question, and that it would make no material difference in practice whether the court proceeded by way of review of the Secretary of State’s conclusion or made its own independent assessment of risk on the evidence before it, as it would in a case brought under the Human Rights Act
. The court stated:
“In our judgment, the question whether the Secretary of State’s practice complies with his policy requires the court to determine for itself whether detainees transferred to Afghan custody are at real risk, and it is therefore for the court to make its own assessment of risk rather than to review the assessment made by the Secretary of State. That is how we have proceeded. We agree, however, that in practice the two approaches lead to the same answer in this case.”
129. Approaching the present case in accordance with the principles explained in para 124 above, it follows that the point in issue was not, as the Court of Appeal supposed, whether Ms Begum was at real risk of treatment which would contravene articles 2 or 3 of the ECHR, if those provisions had been applicable. The issue was whether the Secretary of State, when exercising his discretion under section 40 of the 1981 Act, had acted in compliance with his policy. (That is why, as is common ground, the issue has to be determined as at the date of the Secretary of State’s decision, whereas a question whether an administrative decision was compatible with articles 2 or 3, as given effect by the Human Rights Act
, would normally be determined by a court or tribunal as at the date of its own decision.) The policy entailed that he should not have decided to deprive Ms Begum of British citizenship “if [he was] satisfied that doing so would expose [her] to a real risk of treatment which would constitute a breach of articles 2 or 3 if [she was] within the UK’s jurisdiction and those articles were engaged”. In order to comply with his policy, the Secretary of State therefore had to make a judgment as to the degree of risk of such treatment to which Ms Begum would be exposed, on the basis of a body of material which enabled him to make such an assessment, and to decide whether he was satisfied that Ms Begum would be exposed to a real risk of such treatment.
Conclusions
133. First, it misunderstood the role of SIAC and the courts on an appeal against the Home Secretary’s decision to refuse a person leave to enter the United Kingdom. As I have explained, the scope of an appeal in such cases is confined to the question whether the decision is in accordance with section 6 of the Human Rights Act. That question does not arise in the present appeal.