Deprivations of Procedural Fairness: Begum v Secretary of State for the Home Department [2024] EWCA Civ 152

Blogging has been slow recently. Work has not, though, and with any luck I will be able in the not-so-distant future to share some of what I have been toiling away at.

In the meantime, the decision of the Court of Appeal for England and Wales in Begum v Secretary of State for the Home Department [2024] EWCA Civ 152  caught my eye. There are many issues in the case but the discussion of the exclusion of procedural fairness and the role of the curative principle are of particular interest.

This is the latest instalment in a long-running saga about the decision to deprive Shamima Begum of her UK citizenship. Begum travelled to Syria at the age of 15 and became a teenage ISIL bride, married to a much older man. When the self-styled ISIL caliphate collapsed in 2019 Begum, by then heavily pregnant, sought to return to the UK.  But the Home Secretary exercised her power to deprive Begum of her UK citizenship.

The deprivation power is granted by s. 40 of the British Nationality Act, 1981. The relevant provisions are as follows:

(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.

(4) The Secretary of State may not make an order under (2) if he is satisfied that the order would make a person stateless.

(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying –

(a) that the Secretary of State has decided to make an order,

(b) the reasons for the order, and

(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.

Begum would not thereby have become a stateless person, as she had Bangladeshi citizenship (albeit that she could not, at that point, have travelled there safely). Begum argued that, as a matter of procedural fairness, she was entitled to make submissions to the Home Secretary before the making of the deprivation decision.

She made this argument to the Special Immigration Appeals Commission in the first instance, which accepted the argument in principle but rejected it here on the basis that any prior submissions would not have changed the outcome:

Overall, the Commission does not consider that representations of the nature we are predicating would have made any practical difference in the particular circumstances of Ms Begum’s case, even in the context of a decision-making process that was at its formative stage. The Secretary of State was of course aware that Ms Begum was a child at the time of her departure and might have been the victim of radicalisation and so forth, and he would clearly understand that this was not a decision to be taken lightly. He was also aware, as we have found, that Ms Begum – assuming that she could ever surmount a number of obvious practical difficulties – could not travel to Bangladesh without putting herself at personal risk. Whatever the force of the pre-decision advocacy put forward on Ms Begum’s behalf, we are confident to the requisite standard that the outcome would have been the same.

The Court of Appeal rejected the procedural fairness argument in stronger terms, both in principle and on the facts of the case.

First, the duty of fairness has to be understood by reference to legislative purpose and context. Here, the purpose of s. 40 is to protect the public against threats to national security. Any “requirement to invite representations prior to a deprivation decision made on national security grounds could frustrate that purpose” (at para. 106). The practical effect would be to incite the person thought to be dangerous to return to the UK: “ To notify a person abroad of an intention to remove their citizenship could obviously act as an encouragement to that person to return to the UK pre-emptively” (at para. 107).

As to context, Begum was entitled to an extensive merits review before SIAC, capable of curing any defect in the Home Secretary’s process. The role of SIAC had previously been described in the following terms by the Court of Appeal:

The procedure for deprivation is inherently unfair, on two accounts: the appellant has no input into the decision and the decision is based in part on material which she never sees… Those factors suggest that the appeal which Parliament has given an appellant is a forum in which such decision should be examined as meticulously as possible… SIAC has an important role in scrutinising all that evidence independently, with the invaluable help of the Special Advocates, who press for as much disclosure to the appellant as possible, and who rigorously test the CLOSED evidence. In the course of a hearing, SIAC sees more intelligence materials by the Secretary of State will have done: she will normally only see a ministerial submission perhaps with some annexes… SIAC’s reference in this case to its ‘powerful microscope’… was apposite. Moreover, SIAC will also have a potentially wide range of evidence from the appellant (as in this case), which will not have been seen by the Secretary of State, either. The appeal may well be the appellant’s first and only opportunity to influence a decision-maker. SIAC is entitled to expect that by the time of the appeal it will have been given an updated national security statement which takes on board the evidence which the appellant has served for the purposes the appeal. It is also entitled to expect that the Secretary of State will make available a national security witness who is immersed in the detail of the case, and who is ready to be cross-examined by the OPEN representatives and by the Special Advocates

Given the existence of a merits review, the Court of Appeal took the view that prior notice was unnecessary (at para. 110). The idea is that any relevant submissions could be made to SIAC in any event.

Taken together, statutory purpose and context counselled against implying a right to make submissions prior to the deprivation decision:

The existence and distinctive nature of this right of appeal, and the risk of pre-emptive action by the appellant if prior notice is given, remain in our view compelling reasons to construe s 40(5) as excluding the right of prior consultation before a deprivation decision is made on the grounds of national security (at para. 112).

And, in any event, the Court of Appeal agreed with SIAC that submissions would have made no difference here (at para. 114).

This is an interesting illustration of several propositions about procedural fairness.

First, notice that there was no argument here that the Home Secretary was not under a duty to act fairly at all. Rather, the argument was about the existence of a discrete procedural right, the ability to make representations in advance of an adverse decision. Begum argued that the courts should ‘supply the omission of the legislature’ (Cooper v Board of Works for Wandsworth District (1863), 14 C.B. (N.S.) 180. Most cases involving procedural fairness are like this, involving discrete arguments about the existence of particular procedural right in a particular set of circumstances (see further Joanna Bell).

Second, there was no explicit exclusion of the right here: the statute did not say, one way or another, whether a right to make representations existed. This was therefore a case of implied exclusion of procedural fairness. It is a slightly unusual one, as courts are extremely reluctant to concede that a statutory scheme impliedly excludes a procedural right that is otherwise necessary to ensure fairness.

Third, where procedural fairness is successfully excluded there will generally be some corrective mechanism in place. Here, SIAC served this function. In that regard, the Court of Appeal’s decision can perhaps be read alongside cases in which courts have held that ‘urgent’ decisions do not require procedural fairness in advance but will require appropriate procedures after the fact (see e.g. R v Life Assurance and Unit Trust Regulatory Organisation Ltd, ex parte Ross [1993] QB 17, 52– 53).

I am sceptical about the result, however. A curious feature of the Court of Appeal’s analysis is that it contains no discussion of Begum’s interest in being heard prior to the deprivation decision. Deprivation of citizenship is a serious matter, one of the most significant administrative decisions imaginable, with sweeping consequences for individual liberty, dignity and self-worth. Ordinarily, such considerations are explicitly factored into a procedural fairness analysis. Here, they would have militated very strongly against implied exclusion, as the decision would have “catastrophic consequences” for the individual concerned (R (Shoesmith) v Ofsted [2011] EWCA Civ 642, at para. 60). Indeed, the United Kingdom Supreme Court has recognized that the right to be heard has a dignitarian underpinning: whether or not representations would lead to a more accurate decision, they might still be required in order to respect the agency of a person subjected to a highly consequential decision (R (Osborn) v ParoleBoard [2013] UKSC 61). This proposition should hold even where there is a merits review after the fact.

The Court of Appeal’s analysis of statutory purpose is not entirely convincing either. Does this case really fit in the ‘urgent’ decisions category? That category is better reserved for situations where decisions have to be taken ‘on the spot’ (like when boarding vessels on the high seas) and providing fair procedures is impractical and perhaps even dangerous. Neither of those conditions is present in respect of the deprivation power. The Home Secretary has a variety of statutory powers relating to entry to the UK that could presumably be used to manage the risk that a target of the deprivation power might seek to return. In theory, the Home Secretary could make the ability to make submissions contingent on an undertaking not to return to the UK whilst the submissions are being considered. And, in this case, the risk that Begum would return was speculative at best.

Lastly, in terms of context, it is not clear that the SIAC appeal would be a sufficient safeguard. The Court of Appeal’s summary of SIAC’s role (at para. 10) sees the Home Secretary given a “considerable margin” on evaluations of risk and SIAC barred from substituting its judgment for that of the Home Secretary. In general:

SIAC’s jurisdiction is appellate (and not supervisory). In general, SIAC’s powers are restricted to considering whether the Secretary of State has acted in a way in which no reasonable decision-maker could have acted, or whether it has taken into account some irrelevant matter or has disregarded something to which it should have given weight, or has erred on a point of law (an issue which encompasses the consideration of factual questions). SIAC can consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or based on a view of the evidence which could not reasonably be held.

Given the open-ended nature of the key term “conducive to the public good”, it seems obvious that Begum would have been better able to shape the decision-making process had she been able to make representations prior to the deprivation decision. Before SIAC, the Home Secretary’s position was largely locked in and Begum found herself in a defensive posture, making arguments about the European Convention on Human Rights and the common law in relation to human trafficking that might have had greater force with the Home Secretary than they could have on a deferential merits review.

In summary, then, this is an interesting decision about excluding procedural fairness and the role of review mechanisms in curing potentially defective processes, though I am not sure the Court of Appeal was right to reject Begum’s procedural fairness arguments.

This content has been updated on March 11, 2024 at 15:10.