Mr v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 06 July 2016 |
| Neutral Citation | [2016] EWHC 1622 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4783/2015 |
| Date | 06 July 2016 |
[2016] EWHC 1622 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/4783/2015
The Queen on the application of
Martin Chamberlain QC and Tom Hickman (instructed by ITN Solicitors) for the Claimant
James Eadie QC, Tim Eicke QC and David Blundell (instructed by the Government Legal Department) for the Defendant
Angus McCullough QC and Shaheen Rahman (instructed by the Special Advocates Support Office) as Special Advocates
Hearing dates: 16–17 June 2016
Approved Judgment
The Claimant, MR, challenges by judicial review two decisions of the SSHD, one taken in March 2015, and the other upon review in July 2015, whereby she decided to cancel his British passport. She did so using the powers of the Royal Prerogative. She concluded that it was not in the public interest for him to hold it. Her reasons were:
"You are a British national who is involved in terrorism-related activity. It is assessed that you are likely to travel overseas in future to engage in terrorism-related activity. You were deported from Bulgaria to the UK on national security grounds in November 2014. It is assessed that these activities would present a risk to the national security of the United Kingdom. You are therefore considered a person whose past, present or proposed activities, actual or suspected, are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest."
MR contends that it was an abuse of power for the SSHD to purport to use the Royal Prerogative for that purpose, when Parliament, through the Terrorism Prevention and Investigation Measures Act 2011, had provided specific powers, procedures and safeguards by which passports could be removed, among other measures to prevent terrorist-related activity. MR also contends that her action breached the free movement and establishment rights of MR as an EU citizen, to be found in various Articles of the Treaty on the Functioning of the EU, spelt out in the Citizens' Directive 2004/38/EC, and in the Charter of Fundamental Rights, CFR. MR's third ground is that the SSHD has provided him with insufficient information about the basis upon which she cancelled his passport. He also denies participation in any terrorist-related activity. The Claimant says that he wishes to travel to other Member States for the purpose of establishing a business.
On 24 March 2016, Cranston J made a declaration by consent under s6(2) of the Justice and Security Act 2013. This requires a hearing for the purpose of deciding whether to permit the SSHD to withhold certain material from the Claimant. The scope of that hearing has been varied by the Order of Blake J dated 27 May 2016. Before dealing with conventional disclosure issues, I have to decide whether the cancellation of the passport engaged the provisions of the Citizens' Directive in such a way as to require disclosure by reference to the principles in Case C-300/11 ZZ (France) v SSHD [2013] QB 1136 CJEU, as interpreted by the Court of Appeal in ZZ (France) v SSHD (No.2) [2014] EWCA Civ 7, [2014] QB 820.
Mr Eadie QC for the SSHD submitted that the cancellation restricted but did not legally prohibit MR from travelling abroad. It was in a different category and context from that which was dealt with in ZZ, and no disclosure was required at all for this category of case; or some lesser degree might suffice. He had at one time appeared to submit that the Directive was not engaged at all since cancellation of the passport created a restriction and hindrance but no prohibition on travel to the rest of the EU, but that was not the essence of his argument as it developed.
His second contention was that the requirements for disclosure in ZZ were not the same as those derived from SSHD v AF (No. 3) [2010] 2 AC 269, in relation to Article 6 ECHR. I do not propose to deal with that at this stage. I have already heard submissions on most of the contentious disclosure points and the issue has not so far arisen as a live point. If it does when, at a later date, the remaining issues have to be decided, which I intend to be before the end of July, I will deal with it then.
The Citizens Directive and disclosure
The Directive's recitals provide that citizens of the Union have a primary and individual right to move and reside freely within the territory of the Member States; the free movement of persons is one of the fundamental freedoms of the EU. Article 4(1) provides that all Union citizens "with a valid identity card or passport …shall have the right to leave the territory of a Member State to travel to another Member State." Article 4(3) provides that "Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality."
Article 27 is at the heart of the argument. It is in Chapter VI, and provides in (1) and (2):
"1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."
Also relevant are Articles 30 and 31. The former requires that decisions under Article 27 shall be notified in writing, and by Article 30(2):
"2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security."
Article 31 requires the persons concerned to have access to judicial redress procedures.
I need to mention Article 47 of the CFR, avowedly modelled on Article 6 ECHR: it requires an effective remedy before a tribunal for everyone whose EU law rights are violated, and provides for the entitlement to a fair and public hearing by an independent and impartial tribunal.
The principles of how these provisions work in relation to disclosure of material which is affected by national security arguments, where Article 27 is engaged, has been considered by the CJEU in ZZ in 2013, above. Mr Eadie put some emphasis on the nature of the case. An EU citizen, a dual French-Algerian national, who had been lawfully resident in the UK for 15 years up to 2005, and had a right of permanent residence here, was refused re-admission on his return from a visit to Algeria, and was deported from the UK on the grounds of national security pursuant to Article 27. SIAC upheld the SSHD's decision on appeal to it. But little of the case had been disclosed to him. The CJEU judgment starting point is in [49–50]:
"49. It is only by way of derogation that Article 30(2) of Directive 2004/38 permits the Member States to limit the information sent to the person concerned in the interests of State security. As a derogation from the rule set out in the preceding paragraph of the present judgment, this provision must be interpreted strictly, but without depriving it of its effectiveness.
50. It is in that context that it must be determined whether and to what extent Articles 30(2) and 31 of Directive 2004/38, the provisions of which must be interpreted in a manner which complies with the requirements flowing from Article 47 of the Charter, permit the grounds of a decision taken under Article 27 of the directive not to be disclosed precisely and in full."
The CJEU requires a court to consider whether national security would be damaged by the disclosure of the full and precise grounds for the decision and the related evidence. To the extent that a court rules that disclosure would not harm national security, the competent national authority must disclose the material. The competent authority can still refuse to disclose it but must defend its decision only on the grounds and evidence disclosed; [63]. To the extent that disclosure would harm national security, an appropriate balance must be struck between the two competing interests.
The crucial paragraphs are then [64–69], and bearing in mind the emphasis in Mr Eadie's submission on the relevance of the context of the decision:
"64. On the other hand, if it turns out that State security does stand in the way of disclosure of the grounds to the person concerned, judicial review, as provided for in Article 31(1) of Directive 2004/38, of the legality of a decision taken under Article 27 thereof must, having regard to what has been stated in paragraphs 51, 52 and 57 of the present judgment, be carried out in a procedure which strikes an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary.
65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with,...
To continue reading
Request your trial
-
The Queen (on the application of MR) v The Secretary of State for the Home Department
...was raised in an interlocutory hearing in the present case before Ouseley J ( R(MR) v Secretary of State for the Home Department [2016] EWHC 1622 Admin), in which he said:- "15. As I have said, Mr Eadie did not really pursue what had at one time been the SSHD's primary argument, that the c......
-
Xh and Another v Secretary of State for the Home Department
...release, to exercise his right of free movement. 79 As, however, is made clear by the recent decision of Ouseley J in MR v Secretary of State for the Home Department [2016] EWHC 1622 (Admin), the cancellation of a passport restricts travel and engages EU law. As stated in that case at [15]......
-
R (XH) v Secretary of State for the Home Department
...to be, a substantial interference with XH's freedom of movement. (See generally, MR v. Secretary of State for the Home Department [2016] EWHC 1622 (Admin) per Ouseley J. at [15] – [17]; Case C-430/10 Gaydarov, unreported, 17 November 2011.) Directive 2004/38/EC 109 Recital (2) to the Direc......
-
A v Minister of Internal Affairs
...per Lord Phillips. 20 Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452 at [81]. 21 MR v Secretary of State for the Home Department [2016] EWHC 1622. 22 Secretary of State for the Home Department v AF (No 3), above n 6, at [57] per Lord Phillips and [80] per Lord ...