QX v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMrs Justice Farbey
Judgment Date15 May 2020
Neutral Citation[2020] EWHC 1221 (Admin)
Docket NumberCase No: QX (PTA/10/2019)
CourtQueen's Bench Division (Administrative Court)
Date15 May 2020

[2020] EWHC 1221 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Farbey

Case No: QX (PTA/10/2019)

Between:
QX
Claimant
and
Secretary of State for the Home Department
Defendant

Mr Dan Squires QC & Ms Joanna Buckley (instructed by ITN Solicitors) for the Claimant

Mr Robin Tam QC & Mr Steven Gray (instructed by the Government Legal Department) for the Defendant

Special Advocates: Ms Shaheen Rahman QC & Ms Rachel Toney (instructed by the Special Advocates' Support Office)

Hearing dates: 17 & 18 March 2020

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mrs Justice Farbey

THE HON

Introduction

1

The claimant (who is subject to an anonymity order and who shall be known only as QX) applies under section 11(2)(d) of the Counter-Terrorism and Security Act 2015 (the 2015 Act) for a review of two obligations imposed on him after his return to the United Kingdom under a Temporary Exclusion Order (TEO). The obligations are that:

i. He must report daily to a named police station between specified hours; and;

ii. He must each week attend a two-hour appointment with a mentor from the Home Office Desistance and Disengagement Programme (DDP) and a two-hour appointment with a theologian.

A third obligation — that he must notify the police within 72 hours of a change of place of residence — is not challenged.

2

At a preliminary hearing, I heard submissions on four issues:

i. Whether article 6(1) of the European Convention on Human Rights (the Convention) applies to a review under section 11(2)(d);

ii. If so, whether QX is entitled to the level of disclosure in cases that fall within the principles set down by Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269;

iii. If so, whether the level of disclosure which the Secretary of State has already provided to QX meets the AF (No 3) test; and

iv. Whether QX should be provided with certain specific material relating to the mentoring and theological sessions. QX submits that the material will assist his argument that the sessions serve no useful purpose such that his attendance cannot be regarded as a necessary and proportionate obligation.

3

I heard submissions in open court on all issues from Mr Dan Squires QC with Ms Joanna Buckley on behalf of QX and Mr Steven Gray on behalf of the Secretary of State. I heard submissions in closed session on the third and fourth issues. During the closed session, I heard submissions from Mr Gray and from the special advocates (Ms Shaheen Rahman QC with Ms Rachel Toney). I also had the benefit of a written Note from Mr Squires and Ms Buckley which I considered in closed with the special advocates' assistance.

4

In a Note to the parties dated 30 March 2020, I directed further submissions on the interaction of the various statutory provisions that are key to this judgment. The parties provided helpful written submissions (Mr Robin Tam QC, who did not appear at the hearing, taking the reins for the Secretary of State due to Mr Gray's illness). I have considered those submissions as well as everything that was said at the hearing.

Factual background

5

QX is a British national. He is married with three children who are all of toddler age. In October 2018, he and his wife were arrested in Istanbul. On 26 November 2018, the Secretary of State applied to this court for permission to impose a TEO on QX for two years on grounds of national security. Permission was granted by Ouseley J on the same day. Notice of the order was at that stage served on QX's solicitors.

6

The order required QX not to return to the United Kingdom other than in accordance with a permit to return or as the result of being deported. His passport would be invalidated (in accordance with section 4(9) of the 2015 Act) and he would be guilty of an offence if he were to return to the United Kingdom in breach of the TEO.

7

The TEO had a section dealing with what would happen after QX returned to the United Kingdom. This section stated that the Secretary of State might impose “permitted obligations” on him. If such obligations were to be imposed, QX would be given notice of the obligations after his return. The notice would remain in force until the TEO ended or until the notice was revoked or replaced. The obligations under the notice were capable of being varied.

8

On 9 January 2019, QX was deported from Turkey and returned to the United Kingdom under the terms of a permit to return. On arrival, he was served with a copy of the TEO and (at the same time) with an initial Notice of Obligations. The obligations included a requirement to give 72 hours' notice to the police of any change in his place of residence, as well as requirements to report daily to a police station and to attend appointments with a DDP mentor. On 16 January 2019, a fresh Notice of Obligations was served which gave details of the mentor appointments. QX was required to attend appointments twice a week for two-hour sessions.

9

QX has for a substantial period refused to engage with mentoring sessions. He has been a party to proceedings in the Family Court and subject to criminal investigation. He has expressed concern that anything he said during a mentoring session would be used against him in court. In his witness statement made for the purposes of these proceedings, he says that from March 2019 he spent the mentoring appointments playing chess with the mentor and engaging in minimal conversation. The appointments then moved to a library. Since then, he has spent the time reading a book which he brings with him.

10

The Secretary of State has considered a number of requests by QX to vary the obligations, either on a temporary or on a permanent basis. I need not set out here the nature or details of each request. Two examples suffice to give the flavour. On 13 February 2019, QX's reporting obligation was rescheduled to enable him to attend a job interview; and from 6 June to 9 June 2019, the period within which he had to report to the police was altered so that he could spend time with his family during Eid.

11

On 19 June 2019, QX's solicitors requested that the mentor appointments be suspended while he remained under criminal investigation and that his reporting obligation be reduced to once a week in person, with other reporting to be undertaken by telephone. The solicitors stated that QX wished to take up employment but had been prevented from attending interviews by the reporting obligation which was also having an impact on his private and family life. They noted that there had been no formal indication that material gathered from the mentor appointments would not be passed to the police or Crown Prosecution Service, and expressed concern that they were not confidential. There was in any event little point in QX's attendance at the appointments.

12

By letter dated 5 July 2019, the Home Office refused these variation requests on the grounds that the obligations in their current form remained necessary and proportionate for protecting the public from a risk of terrorism. As regards the mentoring appointment, QX was “under no compulsion to divulge information to his mentor.” The Crown had not sought to rely on the product of mentoring sessions in a criminal trial. The admissibility of evidence would be determined by the trial judge who would consider the fairness of proceedings under section 78 of the Police and Criminal Evidence Act 1984.

13

On 4 October 2019, a fresh Notice of Obligations was sent to the claimant's solicitors. The notice contained the requirement to attend appointments with a theologian once a week for two hours at places notified to the claimant by the theologian. The appointments with the mentor were correspondingly reduced to once a week for two hours. In his witness statement, QX indicates that he has never engaged with the theologian: he reads a book during each session.

14

On 17 October 2019, QX's solicitors requested information about his new mentor, specifically what qualifications and experience he had; who had employed or engaged him; and whether he processed QX's personal information in accordance with data protection legislation. In relation to the theologian, the solicitors requested similar information as well as information relating to the purpose of the appointments.

15

On 20 December 2019, the Home Office replied to the correspondence saying that the obligations under the TEO would continue in their current form. The solicitors' requests for information could be addressed in the present proceedings which had by that time been launched.

Home Office assessment

16

As to the grounds for imposing the TEO, the Secretary of State has informed QX that he is assessed to have travelled to Syria and to have aligned with a group that is aligned to Al-Qaeda (AQ). The Secretary of State assesses that:

“anyone who has travelled voluntarily to align with an AQ-aligned group demonstrates a high level of commitment to the ideology and aims of AQ and is aware of the attacks that it has carried out. Furthermore, we assess that an individual aligning with an AQ-aligned group will be subject to radicalisation and desensitised to violence, so this ideological commitment is likely to remain, or even grow stronger.”

17

The assessment goes on to say that the threat from AQ-aligned individuals who return to the United Kingdom from Syria...

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