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Permission to Appeal decision

Permission to Appeal decision in the matter of Shamima Begum (Appellant) v Secretary of State for the Home Department (Respondent)

7 August 2024

In the Supreme Court of the United Kingdom

UKSC 2024/0096

Before

Lord Reed
Lord Hodge
Lord Lloyd-Jones

After consideration of the application filed on behalf of the Appellant seeking permission to appeal the order made by the Court of Appeal on 20 March 2024 and of the notice of objection filed by the Respondent


THE COURT ORDERED that

  1. Permission to appeal be REFUSED because the grounds of appeal do not raise an arguable point of law, for the reasons below.

  2. The Appellant pay the Respondent's costs in an amount to be determined in accordance with section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Regulations made under it.

  3. There be a detailed assessment of the Appellant's legal aid costs.


Reasons

Ground 1

  1. The Secretary of State decided in 2019, when the Appellant was in Syria, that she should be deprived of British nationality under section 40(2) of the British Nationality Act 1981, on the ground that it was "conducive to the public good". The decision was made on grounds of national security, because of the Appellant's alignment with ISIL in Syria and the threat which she was considered to pose to public safety if she returned to the UK. These proceedings are a statutory appeal against that decision.

  2. The first ground of appeal concerns the circumstances in which the Appellant left the UK in 2015 and travelled to Syria. SIAC (the tribunal which heard the Appellant's appeal against the Secretary of State's decision) found that there is a credible suspicion that she was a victim of trafficking. SIAC also found that there was an arguable case that the police, the Appellant's school and the local authority had failed to take reasonable measures to prevent her from travelling to Syria.

  3. Before the Court of Appeal, as it recorded at para 55 of its judgment, the Appellant argued that the Secretary of State's decision was vitiated under domestic common law by a failure to take into account the possibility that there had been a breach of the protective duty under Article 4 by public authorities in the UK in 2015, giving rise to a variety of duties under Article 4. The Court of Appeal rejected that argument, holding (put very shortly) that the possibility that there had been a breach of the protective duty in 2015 did not bear materially on the Secretary of State's assessment in 2019 of whether the deprivation of nationality would be conducive to the public good on grounds of national security, bearing in mind the lapse of time and the significance of supervening events.

  4. The Appellant does not seek to appeal against that conclusion. The panel would also observe that the question whether the possibility of the Appellant's having been trafficked should be investigated, with a view to appropriate measures being taken if deficiencies in protection are identified, is different from the question whether the Secretary of State should have considered the possibility of a prior breach of the protective duty under Article 4 when taking a decision based on an assessment of the public interest, having regard to the risk which the Appellant was considered to present to public safety at that time.

  5. The argument which the Appellant seeks to advance on appeal to this court is that, when taking the deprivation decision in 2019, the Secretary of State was required by Article 4 of the ECHR to consider whether the Appellant (then in Syria) was a potential victim of trafficking, whether there had been any failures by public authorities to protect her from trafficking, the obligations owed to her under Article 4 at that time as a victim or potential victim of trafficking, and whether deprivation would impede the State's ability to discharge those obligations. His failure to do so is said to have rendered the deprivation decision a violation of the Appellant's rights under Article 4.

  6. This argument is based on submissions as to the effect of Article 4 which appear to the panel to go well beyond the existing case law of the European Court of Human Rights, or the incremental development of the principles established by that case law: for example, that the non-punishment principle extends to a decision to deprive a person of her citizenship on grounds of national security, that the recovery duty applies to persons outside the State's jurisdiction, and that the restitutionary obligation can give rise to an obligation to repatriate.

  7. The Court of Appeal rejected similar submissions on the basis of the existing case law of the European court, and the approach to the application of the Human Rights Act 1998 laid down by this court in a number of recent authorities. In the panel's view they were right to do so. Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.

    8. Ground 2

  8. The Appellant maintains that she had a common law right to make representations to the Secretary of State before the deprivation decision was taken, and that the Secretary of State's failure to afford her an opportunity to make representations therefore renders the decision unlawful.

  9. The panel agrees with the Court of Appeal that a right to make representations before a deprivation decision is made would be liable to undermine the effectiveness of such a decision in cases concerned with national security, and is therefore impliedly excluded.

    10. Ground 3

  10. The argument under this ground of appeal, put shortly, is that the Secretary of State failed to have regard to the need to foster good community relations, as required by section 149 of the Equality Act 2010.

  11. The factual material before the courts below satisfied them that the impact of the decision in question on community relations had in fact been considered. It is not apparent that that conclusion on the facts is vitiated by any error of law.

  12. The courts below also considered that the operation of section 149 was in any event excluded by section 192, which provides that a person does not contravene the Equality Act by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose. The Appellant maintains in that connection that proportionality is to be measured specifically against the requirements imposed by the Equality Act, leaving other factors out of account. That interpretation does not appear to the panel to be arguable.

    13. Ground 4

  13. The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant's becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

  14. Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant's submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

  15. The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State's decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.


    16. For more information, please contact the Court.