The Appeal Court screwed up:
link Supreme Court Conclusions 132. Standing back from the detail, and summarising the position, it appears to me
that the Court of Appeal erred in four respects.
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.
134. Secondly, the Court of Appeal erred in its approach to the appeal against the
dismissal of Ms Begum’s application for judicial review of the Home Secretary’s
refusal of leave to enter the United Kingdom. It made its own assessment of the
requirements of national security, and preferred it to that of the Home Secretary,
despite the absence of any relevant evidence before it, or any relevant findings of
fact by the court below. Its approach did not give the Home Secretary’s assessment
the respect which it should have received, given that it is the Home Secretary who
has been charged by Parliament with responsibility for making such assessments,
and who is democratically accountable to Parliament for the discharge of that
responsibility.
135. Thirdly, the Court of Appeal mistakenly believed that, when an individual’s
right to have a fair hearing of an appeal came into conflict with the requirements of
national security, her right to a fair hearing must prevail. As I have explained, if a
vital public interest - in this case, the safety of the public - makes it impossible for a
case to be fairly heard, then the courts cannot ordinarily hear it. The appropriate
response to the problem in the present case is for the appeal to be stayed until Ms
Begum is in a position to play an effective part in it without the safety of the public
being compromised. That is not a perfect solution, as it is not known how long it
may be before that is possible. But there is no perfect solution to a dilemma of the
present kind.
136. Fourthly, the Court of Appeal mistakenly treated the Home Secretary’s
policy, intended for his own guidance in the exercise of the discretion conferred on
him by Parliament, as if it were a rule of law which he must obey. As a result, it
applied the wrong approach to considering whether the Home Secretary had acted
lawfully.
137. For these reasons, and those more fully set out above, I would allow the
Secretary of State’s appeals in each of the proceedings before the court, and dismiss
Ms Begum’s cross-appeal. The result is that (1) Ms Begum’s LTE appeal is
dismissed, (2) her application for judicial review of the LTE decision is dismissed,
and (3) her application for judicial review of SIAC’s preliminary decision in the
deprivation appeal is dismissed.
So. Technical. A stitch-up.