“The Right to a Fair Hearing Does Not Trump All Other Considerations.”

“The Right to a Fair Hearing Does Not Trump All Other Considerations.”

By Jenson Davenport

“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.”1 On 26th February, the Supreme Court deprived Shamima Begum the chance to return to England to challenge her revocation of citizenship. In addition to this decision, the court dismissed Begum’s application for judicial review of the decision not to give her leave to enter the UK. Ms Begum travelled Syria in 2015 to join the so-called Islamic State group. Nearly four years later, in February 2019, her British citizenship was revoked by the then Home Secretary Sajid Javid, who claimed that she had Bangladeshi citizenship which could be obtained. This however was not the case when both the Bangladesh state and Begum herself denied this, effectively making her stateless in the process. After his decision to deprive her, the Home Secretary then publicly announced that “she would never be allowed to return to the UK.”2 Since this decision, Begum and her family have been fighting with the courts to reinstate her citizenship.

In 2020, less than year prior to the most recent Supreme Court decision, Lord Justice Flaux, sitting in the Court of Appeal, held that “fairness and justice must, on the facts of this case, outweigh the national security concerns, so that the leave to enter appeals should be allowed.”3 For Begum and her family, this seemed like the much needed breaking point amongst this agonising legal battle.  

The most recent Supreme Court decision however disagreed. This decision has not been unanimously accepted; in fact much uproar has been displayed amongst legal scholars and the wider public alike. One Guardian article headline stated that this decision “brings shame on UK”. An opinion writer asks, “even if she left [the UK] with the firm intention of terrorising her fellow citizens, does this mean she should be deprived of her rights?” 4Another writer proclaimed, “shame on us all” in response to the decision. Yet, in 2019, a poll suggested that 78% of Britons supported the initial decision to revoke Begum’s citizenship5. Opinion upon Begum is clearly divided, but for what reason? Why is this case the cause for such controversy? May it be due to Islamophobia residing at the heart of this decision, or other political considerations? The Supreme Court argued that their decision was reached on “national security” grounds, with Lord Reed holding that the right to a fair hearing did “not trump all other considerations, such as the safety of the public.” 

Regardless of Lord Reed’s reasoning, it is apparent that those concerned with human rights and the right to a fair trial are truly disappointed with the Supreme Court’s decision. By emphasising the right to a fair trial is to be subject to public safety as the Supreme Court stipulates, it is clear that in controversial cases such as this – cases concerning national security – an individual’s right to a fair trial will be profoundly reduced, potentially to the extent that the right itself appears fictious at best. A core conflict within this decision is the standard of review that the court should maintain when dealing with cases of national security. To what extent should the court defer to the Home Secretary’s decision? How best should they balance intrinsic human rights conflicts with the national interest? Within the Supreme Court’s decision, it was maintained that the Court of Appeal was mistaken to find that when an individual’s right to a fair hearing came into conflict with the requirements of national security, the right to a fair hearing must prevail6. Instead, the Supreme Court maintained that if a vital public interest, such as public safety, makes it impossible for a case to be heard fairly, then it cannot ordinarily be heard7.  

As alluded to above, the reaction to this decision has been anything but unanimous, despite  a unanimous verdict from Supreme Court. David Davis, Conservative politician, wrote on Twitter, “Disappointing verdict in the Supreme Court. Regardless of what individuals like Shamima Begum have done, the UK cannot simply wash our hands of Brits in the Syrian camps. The correct approach would be to return them to the UK to answer for their crimes.”8 Patrick O’Flynn however disagreed, arguing that this was a “victory for common sense”, which to him came as a surprise as “[judges rarely cite the desire of the British public not to be placed in danger when the apparently inalienable right of some scumbag or other to a family life or to avoid the risk of persecution in another land is at stake.” 9 

I cannot articulate how much this latter view disappoints me. Shamima Begum, despite her past, should not be deprived of her citizenship. The Supreme Court here did not correctly balance the interests of the wider community with that of the individual. The Court of Appeal was right to find that, on balance, fairness and justice were to supersede national security. This decision, if interpreted strictly, may lead to a very dangerous precedent restricting the right to a fair hearing where national security is concerned, potentially defiling the progress made in administrative law as we know it. As shown, I am not alone with this view, with many human rights campaigners and legal experts alike arguing against this decision. The impact of this decision within law may be unknown to date, but the impact for Ms. Begum is very real. The Supreme Court must reconsider its decision.

  1. https://www.supremecourt.uk/cases/docs/uksc-2020-0156-judgment.pdf at [87]
  2. https://www.independent.co.uk/news/uk/home-news/shamima-begum-isis-bride-uk-syria-terrorism-priti-patel-home-office-a9124956.html
  3. https://www.judiciary.uk/wp-content/uploads/2020/07/WP-Begum-Judgment-NCN.pdf at [121]
  4. https://www.theguardian.com/uk-news/2021/feb/28/shamima-begum-court-ruling-brings-shame-on-uk

  5. https://news.sky.com/story/shamima-begum-78-of-britons-support-revoking-is-brides-uk-citizenship-sky-data-poll-11643068
  6.  https://www.supremecourt.uk/cases/docs/uksc-2020-0156-judgment.pdf at [134]
  7. Ibid at [135]
  8.  https://www.itv.com/news/2021-02-26/shamima-begum-to-learn-if-she-can-return-to-uk-from-syria
  9. https://www.telegraph.co.uk/news/2021/02/26/shamima-begum-ruling-victory-common-sense/amp/