QX v Secretary of State for the Home Department

Heard on 12 and 13 March 2024

Lord Reed ( with whomLord Lloyd-Jones, Lord Hamblen, Lord Burrows, Lord Stephens, Lady RoseandLady Simleragree):

The principal question in this appeal is whether the right to a fair hearing, as guaranteed by article 6(1) of the European Convention on Human Rights (“the Convention”) and implemented in our domestic law by the Human Rights Act 1998 (“the Human Rights Act”), applies to an application under section 11 of the Counter-Terrorism and Security Act 2015 (“the 2015 Act”) for the review of the Secretary of State's decisions relating to the imposition of a temporary exclusion order (“TEO”) on the claimant, QX.

The claimant is a British citizen. He lived in Syria between 2014 and 2018. On 26 November 2018 the High Court granted an application by the Secretary of State under section 3 of the 2015 Act for permission to impose a temporary exclusion order on him. As permitted by section 3, the application was considered in his absence, without his having been notified or having an opportunity of making representations to the court.

In support of the application the Secretary of State relied on a witness statement by the head of the Special Cases Unit at the Home Office's Office for Security and Counter Terrorism. In the statement, the witness stated that the claimant had travelled to Syria, and that it was reasonably suspected that he was, or had been, aligned with an al-Qaeda aligned group. This allegation has been referred to in these proceedings as “the Syria allegation”. It was said that the choice that the claimant had made to travel to an active warzone, and to align with others bound by similar extremist beliefs, demonstrated the highest level of commitment to the Islamist extremist cause. As he was reasonably suspected to have been involved in terrorism-related activity, and taking account of the risk that those aligned with an al-Qaeda aligned group posed to national security, the Secretary of State was satisfied that imposing the order was the most appropriate and proportionate way of managing the circumstances in which the claimant could return to the United Kingdom and of requiring the claimant to comply with measures designed to protect the public in the United Kingdom from a risk of terrorism, if he returned. Those measures were:

(1) An obligation for the claimant to notify the police of his places of residence and any change in his places of residence.

(2) An obligation for the claimant to report to a named police station, initially on a daily basis.

(3) An obligation for the claimant to attend appointments with specified persons as notified in writing. He could be required to meet with a mentor twice a week for two hours at a time on each occasion to help support rehabilitation and re-integration into the community.

The order imposed by the Secretary of State stated that it had been imposed because the following conditions were met:

“A. The Secretary of State reasonably suspects that you are, or have been, involved in terrorism-related activity outside the United Kingdom. Namely, it is assessed that you travelled to Syria and aligned with an al Qaeda-aligned group;

B. The Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for a temporary exclusion order to be imposed on you;

C. The Secretary of State reasonably considers that you are outside the United Kingdom;

D. You have the right of abode in the United Kingdom; and

E. The court has given the Secretary of State permission to impose on you a temporary exclusion order under section 3 of the Counter-Terrorism and Security Act 2015.” (Emphasis in original.)

Notice of the imposition of the order was given to the claimant on the same date by sending an email to his legal representatives. The order then came into force, in accordance with section 4 of the 2015 Act. On 4 January 2019 the Secretary of State issued to the claimant a permit to return to the United Kingdom, in accordance with section 7, since the claimant was facing deportation from Turkey to the United Kingdom. This permitted him to return on a specified flight from Istanbul to Manchester on 9 January 2019.

On his arrival at Manchester Airport, the claimant was served with a copy of the order, and also with a notice of obligations imposed by the Secretary of State under section 9 of the 2015 Act. The obligations imposed by the notice were varied in some respects from time to time by subsequent notices, but in general terms remained the same. They fell into the three categories anticipated in the application for the order, and had been agreed at the TEO Liaison Group meeting which preceded that application (as explained in para 26 below):

(1) First, the claimant was required to notify the police of his intended place of residence, and to notify the police of any change of residence.

(2) Secondly, he was required to report to a specified police station at a specified time every day. That obligation has been referred to in these proceedings as “the reporting obligation”. Its purpose, as explained by the Secretary of State, was to reduce the risk that the claimant would abscond, and to support attempts to locate him in the event that he did abscond; to reduce his ability to engage in terrorism-related activity and to assist rehabilitation; and to provide general reassurance as to his location at frequent points throughout the week, which assisted in mitigating the risk to national security that he was assessed to pose.

(3) Thirdly, he was required to attend sessions for four hours each week with a mentor from the Home Office's Desistance and Disengagement Programme (“the appointments obligation”). The appointments obligation was replaced, with effect from 4 October 2019, by an obligation to attend sessions for two hours a week with a mentor and two hours a week with a theologian. The Secretary of State maintains that the appointments were considered necessary to support the claimant's reintegration into United Kingdom society, to reduce his ability to engage in terrorism-related activity, to provide an opportunity to understand his mindset, and to provide general reassurance as to his location at frequent points throughout the week, which assisted in mitigating the risk to national security that he was assessed to pose.

The temporary exclusion order expired on 25 November 2020, and the obligations then came to an end.

On 24 March 2021 the claimant was convicted of three counts of breaching the reporting obligation, contrary to section 10(3) of the 2015 Act. The counts related to his missing three appointments to report at the specified police station. He was sentenced on the basis that he had forgotten about these appointments, and received a suspended sentence of 42 days' imprisonment.

Section 2(1) of the 2015 Act defines a temporary exclusion order as an order which requires an individual not to return to the United Kingdom unless—

“(a) the return is in accordance with a permit to return issued by the Secretary of State before the individual began the return, or

(b) the return is the result of the individual's deportation to the United Kingdom.”

Under section 2(2), the Secretary of State may impose a temporary exclusion order if conditions A to E are met. Those conditions are set out in subsections (3) to (7):

“(3) Condition A is that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom.

(4) Condition B is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for a temporary exclusion order to be imposed on the individual.

(5) Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom.

(6) Condition D is that the individual has the right of abode in the United Kingdom.

(7) Condition E is that—

(a) the court gives the Secretary of State permission under section 3, or

(b) the Secretary of State reasonably considers that the urgency of the case requires a temporary exclusion order to be imposed without obtaining such permission.”

Pursuant to section 2(8), during the period that a temporary exclusion order is in force, the Secretary of State must keep under review whether condition B is met.

In order to satisfy condition E, the Secretary of State must obtain the permission of the court under section 3, except where that is precluded by the urgency of the case. Under section 3, the function of the court on an application for permission is to determine whether the decisions of the Secretary of State that conditions A to D are met are obviously flawed. In determining the application, the court must apply the principles applicable on an application for judicial review. Unless the decisions are obviously flawed, the...