It is startling to see the Court of Appeal take over the Home Secretary’s responsibility in deciding who should be allowed to enter the UK – judging for itself the relative importance of national security considerations. But this is what the Court did in its judgment today, by opening the door for Shamima Begum to return to Britain. In doing so, it is undermining the statutory powers that Parliament enacted to enable the government to protect the public from the risk of terrorism.
In February last year, the Home Secretary Sajid Javid, stripped Begum of her British citizenship, barring her return to Britain. Begum had travelled to Syria four years earlier, aged 15, to join ISIS. The Court of Appeal has undermined the Home Secretary’s decision, not by allowing Begum’s appeal, but by ruling that she has to be granted leave to enter the UK in order to have a fair and effective appeal. For the Court of Appeal, procedural fairness seems to have outweighed the risks of Begum’s return to this country.
The Home Secretary has a statutory power to deprive a person of their British citizenship if he or she is satisfied that this is conducive to the public good. This is a highly controversial power, for obvious reasons, but it has been affirmed and reaffirmed by Parliament. The person whose citizenship is removed has a right of appeal, which in cases involving national security (as opposed to say fraud in obtaining citizenship) is heard by the Special Immigration Appeals Commission (SIAC).
In February this year, the SIAC addressed some preliminary points arising out of Begum’s appeal. Specifically, the SIAC held that depriving Begum of her British citizenship would not make her stateless, as she was a Bangladeshi citizen by descent. The SIAC also ruled that in the circumstances in which Begum found herself – detained in a camp in Syria – she could not ‘play any meaningful part in her appeal, and that, to that extent, the appeal will not be fair and effective.’