2022 Statelessness & Citizenship Review 4(1) Ms Begum’s application for judicial review of the SSHD’s refusal of leave to enter the UK by making its own assessment of the requirements of national security, without there being any relevant findings of fact by the Court below or evidence before the Court of Appeal. 24 The approach of the Court of Appeal ‘did not give the [SSHD’s] assessment the respect which it should have received, given that it is the [SSHD] 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’.25 Third, the right to a fair hearing does not trump all other considerations, such as the safety of the public. 26 If a vital public interest makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it and the appropriate response to the problem in the present case was for the deprivation appeal to be stayed until such time as Ms Begum was in a position to play an effective part in it without the safety of the public being compromised. 27 Fourth, the Court of Appeal mistakenly treated the SSHD’s extraterritorial human rights policy as if it were a rule of law which he must obey as opposed to guidance in the exercise of his statutory discretion. 28 In light of the prior conclusions as to its role, the SIAC was not entitled to re-exercise the SSHD’s discretion for itself and was generally restricted to the role of reviewing the decision. In light of this, the SSHD’s appeal from the decision of the Court of Appeal succeeded and Ms Begum’s cross-appeal failed. In essence, the dismissal of her leave to enter appeal and her applications for judicial review were confirmed. As to the ongoing deprivation appeal (Ms Begum had judicially reviewed preliminary findings in the SIAC appeal, but the appeal itself remained in being), in practical terms, Ms Begum might (i) continue her appeal despite inability to make this fair and effective; (ii) seek a stay to the appeal; or (iii) allow the appeal to be terminated and, if conditions changed in future, seek to reinstate it. III EFFECT OF THE DECISION The effect of the decision is broadly to re-emphasise the considerable power of the United Kingdom executive in relation to deprivation of nationality and the limited potential of the statutory appeal right. Not only is the BNA 1981 s 40(2) a broad power to deprive a person of nationality status on the basis of its conduciveness to the public good in the view of the Secretary of State, the decision of the Supreme Court in the Begum case makes clear that there are substantial limitations on the power of the SIAC. Save in relation to ECHR grounds raised by reference to the HRA 1998 s 6, the SIAC has a predominantly supervisory role, rather than affording a full appeal on the merits. As has been emphasised by the SIAC in addressing the renewed appeal before it after the decision of the Supreme Court, ‘[t]he effect of [the Supreme Court decision] is that the focus must be on the material that was placed before the [SSHD] when s/he made the relevant decisions. This is not an appeal de novo on the merits’.29 24 25 26 27 28 29 ibid [134]. ibid. ibid [135]. ibid. ibid [136]. Begum, C8, C10, and D4 v SSHD (Special Immigration Appeals Commission, Jay J, 20 July 2021) [38]. This and further decisions dated 19 October and 29 October 2021 are available on the SIAC website: <http://siac.decisions.tribunals.gov.uk/>. 172