Restitutionary Remedies in Public Law after Shamima Begum

Abstract

The interaction between restitution and public law has long been marked by doctrinal tension, particularly where unlawful state action gives rise to claims for the recovery of benefits or payments. This article examines the implications of recent Supreme Court jurisprudence, including Shamima Begum, for the availability and scope of restitutionary remedies against public authorities. It explores whether traditional private law concepts of unjust enrichment can be coherently applied in public law contexts, where considerations of constitutional principle, institutional competence, and public interest play a significant role. The article analyses the limits of restitutionary recovery for unlawful administrative acts, with particular attention to cases involving the withdrawal of public benefits, mistaken payments, and ultra vires taxation. It argues that courts have increasingly adopted a cautious and context-sensitive approach, balancing the corrective justice rationale of restitution against broader public law concerns such as legality, accountability, and separation of powers. The article further evaluates whether the distinction between public and private law unjust enrichment is normatively justified or whether a unified framework can be developed. By situating recent case law within the wider evolution of restitution in public law, the article offers a principled account of when restitutionary remedies should be available and highlights the risks of uncritical transposition of private law reasoning into public law disputes.