Court of Appeal Proceedings

INTRODUCTION

The current footage is that of the court proceedings relating to the case of Begum v the Secretary of State Home Department. The proceeding is an appeal proceeding at the Court of Appeal (Civil Division), Court 71. The panel of judges comprises Lord Justice Flaux, Lord Justice Singh and Lady Justice King, who presided over the panel. The Respondent is the Secretary of the State Home Department (“SOS”) represented by Mr. James and the Appellant is Ms. Begum represented by Mr. Hickman.

The following paragraphs are attempts to capture the events and content of the footage of the proceedings in the most possible manner.

TERMS OF REFERENCE

The overall debate was around the issue of national security as submitted by the Respondent and the issue of due process as submitted by the Appellant. Each party to the case was allowed to submit their case to the judges of the court.

Submission of the Respondent

Mr. James, on behalf of the Respondent, made his submission based on a certain LTE decision. There were four points he made (the lack of quality of the sound in the footage made it impossible to clearly note down the points he made). Point one was related to concerns around national security. Point two was related to the view that the LTE decision may not be the necessary consequence. Point three was related to protection of the public. Point four was related to security concerns outside the country.

Lord Justice Singh

Lord Justice Singh referred to the LTE decision, which, he stated, is an appeal to the Court of Appeal from the Administrative Court. Lord Justice Singh directed the attention to paragraph four (4) of the judgment. Lord Justice Singh directed a question to Mr. James and asked him what national security case he would be talking about.

Mr. James emphasised on national security concerns and made his submission accordingly. In that regard, Lord Justice Singh stated his view that the only fair and effective way of participating on an appeal is for the Appellant to enter the country subject to conditions.

Lord Justice Singh asked Mr. James the reason why the SOS does not atleast contemplate for the Appellant to enter the country and participate in the appeal process. Lord Justice Singh further raised a question on paragraph 9 of the judgment of LTE decision. Lord Justice Singh observed that reasoning of the judge in dismissing claims of judicial review to enter this country is identical to reasoning the Commission gave in the preliminary issue of judgment. Lord Justice Singh gave his observation of the proposition in the judgment. Lord Justice Singh observed that he understood the first proposition of the judgement that it does not follow from the fact that she does not have a fair and effective appeal that deprivation of appeal must be allowed. This, Lord Justice Singh observed, was the submission of the SOS. However, Lord Justice Singh raised a question on the second proposition. Lord Justice Singh does not find any separate reasoning to justify this proposition that if the Appellant cannot have a fair and effective appeal, the Respondent is not required to grant the Appellant entry clearance.

Lord Justice Flaux

Lord Justice Flaux contemplated a situation where if the court is against the Respondent in regard to the second proposition, he asked the Respondent what issue the Respondent would make.

Submission of the Appellant

Mr. Hickman, on behalf of the Appellant, presented his submission. He made his submission point wise on the question regarding judicial review, due process, fair and effective appeal, national security and interpretation of statute.

The first submission was that the issue in consideration was not on judicial review of decision of SOS but judicial review of the court’s preliminary judgment rejecting the particular ground of complaint.

Mr. Hickman further submitted in respect to the fairness and effectiveness of the appeal by citing the doctrine of due process consideration. In regard to SOS’s submission for deprivation of the appeal, he submitted the SOS was not raising any fairness issue. He emphasised for the court to proceed on the basis of fair and effective appeal procedure.

In regard to issue of national security, Mr. Hickman empathised on the need of evidence to that effect while determining the question of restoring citizenship of the Appellant. He also submitted the question of suspending the case, which he stated could lead to denial of justice to the Appellant. He observed that the suspension of citizenship is developed as a convenient power to protect national security, but it is not a national security power.

Mr. Hickman further submitted to the court to be cautious regarding interpretation of statute while dealing with cases involving parties coming to the country from abroad, restoration of citizenship and determining question of national security. He emphasised that it is not just fairness principle but “fair and effective” principle that has to be considered when interpreting statute.

Mr. Hickman went on with his submission about fair and effective appeal and submitted that without dealing with this he stated it would not be possible to deal with the issue of deprivation of appeal. He cited similar cases and relevant laws to that effect. He also presented a human rights perspective to his case when he submitted options that involved sending the Appellant back to Bangladesh or allowing the Appellant back to the UK. He submitted that deporting the Appellant to Bangladesh would expose the Appellant to risk.

Lord Justice Singh

Lord Justice Singh raised a question on the appeal in regard to LTE decision, where the Court of appeal rejected the appeal for judicial review. Lord Justice Singh asked if the court has to follow the Appellant appeal, what the remedies would be.

Mr. Hickman submitted that appeal to be granted on basis of principle of fairness. Lord Justice Singh observed that the normal consequence in judicial review case is that the decision is crossed and the SOS has to reconsider its decision and further ask why this approach is not appropriate in this case. There is no other reason as to why the LTE decision would be initiated because it has to be allowed to comply with the principle of fairness.

Lady Justice King summed up the proceeding with statement about the current online remote court proceeding with submission going on for two days. She summed up the proceeding that the judges would send their judgments to all the parties concerned in the normal way for their consideration in terms of typographical and minor changes, and the judgment would be sent out eventually.

FINDINGS

One observation throughout the proceeding was that it was more focussed on two competing interests. On one hand, the focus was entirely on national security, which is submitted by the Respondent. On the other hand, it was more of due process of law, which is submitted by the Appellant.

The proceeding demonstrates a gap in the desired administrative result and the due process to be followed to achieve that. The desired administrative result is the submission of the Respondent in depriving the appeal of the Appellant in the name of national security and protection of the public. The due process is the fair and effective appeal procedure that the Appellant submitted to follow while dealing with whether the appeal should be allowed or not.

The role of the judges was asking the right questions in aligning the desired outcome and the due process based on fairness principle. When these competing interests are not aligned, issues, such as these seen in the case, arise.

As submitted by Lord Justice Singh, the fair and effective way of participating on an appeal is for the Appellant to enter the country subject to conditions. The Respondent cited national security reason for deprivation of appeal. In this regard, the Appellant emphasised on fair and effective way of appeal, and further submitted that proper evidence has to be filed to show concerns about national security.

Taking into account the submission and the questions raised by the judges, the submission of the Appellant adopted a well rounded approach touching on all possible options, including differential treatment in regard to British national and national with foreign parents, exposure to risk to Appellant with the guiding principle of fairness. It seems to be rightly submitted by the Appellant that without dealing with the issue of fair and effective appeal, which is due process, the deprivation of appeal cannot be dealt with by the court.

CONCLUSION

The proceeding demonstrates the different priorities being given by the state and that of petitioners in a case. While the state, in this case the SOS, focused on national security based on current international and national political conditions, petitioners’ argument is based on fairness principle, as seen in Appellant submission, which seems to do more of human rights concerns. Judicial review is the key here, which comprises review of state’s act, which in this case is deprivation of appeal and also review of judicial principle, which Mr. James raised.

The current footage does not seem effective for all the purposes that it was recorded, specifically public consumption. The lack of quality of the sound and the technical arrangements do not allow for clear recording of the proceedings. The footage is not clearly audible except for when Lord Justice Singh and Lady Justice King spoke. Thus, the only recommendation is relevant with the sound quality. The footage could also be uploaded with sub-titles.

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