QX v Secretary of State for the Home Department
|England & Wales
|Lady Justice Elisabeth Laing,Lord Justice Nugee,Lord Justice Coulson
|22 November 2022
| EWCA Civ 1541
|Case No: CA-2022-000828
|Court of Appeal (Civil Division)
 EWCA Civ 1541
Lord Justice Coulson
Lord Justice Nugee
Lady Justice Elisabeth Laing
Case No: CA-2022-000828
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Honourable Mrs Justice Farbey
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires KC and Darryl Hutcheon (instructed by ITN Solicitors) for the Appellant
Robin Tam KC and Steven Gray (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 1 and 2 November 2022
This judgment was handed down remotely at 11 am on 22 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal concerns provisions of the Counter-terrorism and Security Act 2015 (‘the 2015 Act’) which give the Secretary of State power to impose, and the court power to review, a temporary exclusion order (‘TEO’). There have been three preliminary hearings in the proceedings in this case. Farbey J (‘the Judge’) has handed down three judgments on such issues, which I will refer to, in sequence, as ‘judgment 1’, ‘judgment 2’ and ‘judgment 3’.
The Appellant (‘A’) is a British citizen. He appeals, with the permission of the Judge, against an order made by her for the reasons given in a judgment handed down on 7 April 2022 (‘judgment 3’). The Respondent (‘the Secretary of State’) cross-appeals, also with the permission of the Judge. On this appeal, A has been represented by Mr Squires KC and Mr Hutcheon, and the Secretary of State by Mr Tam KC and Mr Gray. I thank counsel for their written and oral submissions. The Judge has considered CLOSED material and submissions at various stages of the proceedings. This Court, however, has only considered OPEN material and OPEN submissions.
Paragraph references are to the paragraphs in the Judge's judgments, as the case may be, or, if I am referring to an authority, in that authority, unless I say otherwise.
The issues on this appeal
There are two main issues on this appeal. The Secretary of State's cross-appeal raises a third. A fourth was canvassed by the Secretary of State in argument, but abandoned at a late stage of the hearing, as I will explain.
i. Ground i. of the appeal argues that the Judge erred in law in holding that A was not entitled to disclosure of the kind described in ; (‘ ’) in relation to his challenge to Conditions A and B (see further, paragraph 41, below). That depends on whether article 6.1 of the European Convention on Human Rights (‘the ECHR’) applies to those two challenges. That depends, in part, on two further questions.
1. Is this Court bound by paragraphs 31 and 32 of ; ?
2. Would a decision on the challenges to Conditions A and B in any event be decisive for A's civil rights?
3. A further question is whether A is precluded from raising this issue on this appeal because the Judge decided it in judgment 1 and he did not appeal then.
ii. Ground ii. argues that the Judge erred in law in deciding that A was not entitled to cross-examine the Secretary of State's witness on A's challenge to Conditions A and B. The answer to this question depends in part on whether this Court is bound by the reasoning in ; and in .
iii. Did the Judge err in law in ordering the Secretary of State to tender a witness for cross-examination on other aspects of A's challenge? Coulson LJ has written a short judgment dealing with this discrete issue. I agree with it.
The fourth issue is whether ground i. of this appeal is academic because A has already had disclosure complying with in relation to his challenge to Conditions A and B. A has submitted throughout that he has not had such disclosure and that this ground of appeal is not academic. In her skeleton argument, the Secretary of State, while not putting this point at the forefront of her submissions, nevertheless submitted that one answer to this ground of appeal was that it was academic. Late in the morning of the second day of the hearing, while Mr Squires was making his submissions in reply (on his appeal), Mr Tam interrupted those submissions to indicate that the Secretary of State disclaimed the argument that this part of the appeal was academic.
This Court must, however, reach its own view on this issue, independently of the parties' arguments, and so I must also consider this issue (cf ). It is both logical and convenient for me to address it before the two main legal issues which I intend to consider. Its resolution depends on the complicated procedural history of this case. I will therefore describe that history in some detail. Before I do so, I will briefly summarise the facts, and both the current statutory scheme, and one of its predecessors, as it is difficult to make sense of the procedural history and of the parties' arguments without some understanding of those schemes.
For the reasons which I give in this judgment, I have reached three conclusions.
i. Ground i. is not academic. The Judge has not already decided the relevant question.
ii. It is unnecessary for me to express a view on the effect of paragraphs 31 and 32 of in this context. For the reasons I give below, a decision on the validity of the TEO would be a decisive determination in relation to A's article 8 rights. Article 6.1 therefore applies to it, and A is entitled, in his challenge to Conditions A and B (see paragraph 41, below) to disclosure complying with .
iii. This Court is not bound by this Court's interpretation of the similar, but not identical, provisions of the Prevention of Terrorism Act 2005 (‘the 2005 Act’) when it interprets the relevant provisions of the 2015 Act. The Judge was right not to order cross-examination of a national security witness on A's review of the Secretary of State's decisions that Conditions A and B were met.
The facts in outline
A went to Syria in 2013. He married in 2014, and he and his wife had two children. In his fourth and fifth witness statements in these proceedings, he gave an account of what he had done in Syria (see paragraphs 92 and 93, below). He and his wife later decided to return to the United Kingdom. On 26 November 2018, the Secretary of State applied to the High Court for permission to impose a TEO on A. The Secretary of State alleged that A had engaged in terrorism-related activity (‘TRA’) in Syria between 2013 and 2018 by aligning with an al-Qaeda-aligned group (‘the Syria allegation’: see further, paragraph 58, below). I will refer to al-Qaeda as ‘AQ’. The High Court gave that permission. The Secretary of State imposed a TEO the same day. At that stage, A and his family had been detained in Turkey pending their deportation to the United Kingdom.
A returned to the United Kingdom with his family on 9 January 2019 in accordance with a permit to return issued by the Secretary of State. He was served with the TEO and with a notice of the obligations which it imposed. Those included obligations (a) within specified hours to report once a day to a named police station, and (b) to attend two two-hour appointments a week (‘the obligations’).
The relevant statutory schemes
Section 1(1) of the 2005 Act gave the Secretary of State power to make a control order, defined in section 1(1) as an order against an individual (‘I’) ‘that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism’. Section 1(2) distinguished between derogating and non-derogating control orders, that is, between orders which did, and did not, impose obligations which were incompatible with I's rights under article 5 of the ECHR. The former could only be made by the court on the application of the Secretary of State. The latter could be made by the Secretary of State. The obligations which could be imposed on I were obligations which the Secretary of State, or the court, as the case might be, considered ‘necessary for purposes connected with preventing or restricting involvement in terrorism-related activity’ (section 1(3)). ‘Involvement in terrorism-related activity’ (‘TRA’) was defined in section 1(9). Section 1(4) listed 16 examples of the types of obligation which could be imposed. Some, such as the obligations to give access to his home and to allow it to be searched, to allow things to be removed from it, to permit the monitoring of his movements and communications, and to comply with demands to provide information, for example about his movements, were very intrusive.
Section 2 made further provision about the power of the Secretary of State to make a non-derogating control order (section 2(3)). The Secretary of State could make such an order if ‘he (a) ha[d] reasonable grounds for suspecting that the individual is or has been involved in [TRA]’ and (b) considered ‘that it is necessary [for stated purposes] to make a control order imposing obligations on [I]’ (section 2(2)) (my emphasis). A non-derogating control order lasted for 12 months and could be renewed on further occasions (section 2(4)).
Section 3 was headed ‘Supervision by the court of making of non-derogating control order’. Section 3(1) required the Secretary of State to get the permission of the court before making a non-derogating control order unless the circumstances were urgent. The function of the court on an application for permission was to consider whether the...
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