R as v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon,Mr Justice Supperstone |
| Judgment Date | 13 July 2018 |
| Neutral Citation | [2018] EWHC 1792 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 July 2018 |
| Docket Number | Case No: CO/6532/2015 |
[2018] EWHC 1792 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/6532/2015
Hugh Southey QC and Faisal Saifee (instructed by Arani Solicitors) for the Claimant
Nathalie Lieven QC and David Blundell (instructed by Government Legal Dept.) for the Defendant
Ashley Underwood QC and Martin Goudie QC (instructed by the Special Advocates' Support Office) as Special Advocates
Hearing dates: 15 & 16 May 2018
Judgment (Open) Approved
Introduction
The Claimant is a British citizen. His wife is a German national. On 2 August 2015 the Claimant was stopped whilst attempting to travel with his wife and child from the Port of Dover to Calais in France. During questioning at the port he said that he and his family were travelling to Berlin to visit his wife's family. On the same date his passport was seized pursuant to Schedule 1 to the Counter-Terrorism and Security Act 2015 (“the 2015 Act”). The travel document retention notice provided to him stated that the police officer who seized the passport had reasonable grounds to suspect that he had “the intention of leaving the United Kingdom… for the purpose of involvement in terrorism-related activity outside the United Kingdom”.
On 28 August 2015 HM Passport Office wrote to the Claimant to inform him that his passport had been cancelled. So far as is relevant, the letter stated as follows:
“There is no entitlement to a passport. The decision to issue, withdraw or refuse to issue a British passport is a matter for the Secretary of State for the Home Department (the Home Secretary). On behalf of the Home Secretary, the Immigration Minister considers that it is not in the public interest that you should hold a passport.
You are a British national who attempted to depart the UK on 2 August 2015 from Dover Port to Calais, France. It is assessed that the purpose of this attempt to travel was to engage in terrorism-related activity overseas and, as a result, your British passport was retained under Schedule 1 of the Counter Terrorism and Security Act 2015. It is assessed that you are likely to travel overseas in the future in order to engage in terrorism-related activity. It is assessed that these activities overseas would present a risk to the national security of the United Kingdom.
You are therefore considered to be 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.
The passport remains the property of the Crown and will be retained.
It is open to you to apply for a passport at a later date. The issue of a passport will be determined on the circumstances at the time of any application…”
On 22 October 2015 the Claimant was arrested on suspicion of engaging in conduct in preparation to commit or assist another to commit acts of terrorism.
Also on 22 October 2015, Liverpool City Council (“the Council”) applied for a care order in respect of the Claimant's son. On 23 October 2015, the Council applied for permission to issue wardship proceedings and for the son to be made a ward of court.
On 22 December 2015 these proceedings were issued seeking judicial review of the August 2015 decision.
On 20 May 2016 the police decided to take no further action against the Claimant or his wife.
On 25 July 2016 Russell J granted the Council permission to withdraw the care proceedings and to apply to discharge the wardship order dated 23 October 2015. The Council then withdrew the application for care orders in respect of the child with the permission of the court, and the wardship order in respect of the child was discharged.
On 3 October 2016 the Claimant's solicitors wrote to the Government Legal Department (“GLD”) with a copy of the order of Russell J of 25 July 2016 and requested that the Secretary of State carry out an internal review of her decision of 28 August 2015 to cancel his passport.
On 19 December 2016 the Secretary of State wrote to the Claimant to confirm that she had completed a review of the original decision in the Claimant's case and had decided to maintain the cancellation of the passport. The letter stated, so far as is relevant:
“…The Security Minister, on behalf of the Home Secretary, considers that it is not in the public interest that your client should hold a passport.
[AS] is a British/Iraqi dual national who attempted to depart the UK on 2 August 2015 from Dover port. It is assessed that the purpose of this attempted travel was to reach Syria and engage in terrorism-related activities on behalf of the proscribed terrorist organisation Daesh (also known as ISIL, IS, ISIS and the Islamic State). [AS] was subject to examination and interview under Schedule 7 of TACT 2000. During interview, [AS] provided an account for his planned travel, stating that he, his wife and their children were travelling to Berlin for family reasons. This account is not accepted.
During the examination of media seized in the Schedule 7 interview, material of concern was found, including graphic Islamist extremist images and pages from Daesh's magazine, Dabiq. Whilst this material was found on [AS]'s wife's mobile handset, [AS] is believed to have had access to this device. It is believed that this material is indicative of [AS] and his wife's shared Islamist extremist beliefs and support for Daesh and its terrorism related activities.
Following the cancellation of his passport using the Royal Prerogative on 28 August 2015, it is believed that [AS] maintains an aspiration to travel to Daesh-controlled territory in order to engage in terrorism-related activity. It is assessed that these activities overseas would present a risk to the national security of the UK.
[AS] is therefore considered a person whose past, present or proposed activities are so undesirable that providing him with a British passport is believed contrary to the public interest at the present time…”
On 5 January 2017 the Judicial Review claim form and detailed grounds were re-amended to challenge the December 2016 decision.
The Claimant had sought to challenge the Secretary of State's decisions of August 2015 and December 2016 on six grounds. By an amendment to his grounds of claim he also sought to challenge the decision of the Chief Constable of West Midlands Police, named as second defendant in the claim, to seize and retain his passport on 2 August 2015 on a seventh ground.
On 12 September 2017 Lang J at an oral hearing granted permission on Ground 4 (unlawful interference and proportionality), only in respect of the December 2016 decision. The judge stayed grounds 5 and 6, which the Claimant accepted were not arguable at the time of that hearing, until the substantive hearing, or further order, pending a potential application to the Supreme Court for permission to appeal against R (XH) v SSHD [2018] QB 355. Permission to apply for judicial review was refused on grounds 1–3 and 7.
Mr Hugh Southey QC, for the Claimant, has informed me that the Claimant is content for grounds 5 and 6 to be dismissed without prejudice to the issues being raised on appeal.
The Family Court Proceedings
On 22 October 2015 the Council initiated proceedings in the High Court (Family Division) in respect of the Claimant's son.
The Council prepared a position statement dated 26 June 2016 with respect to this case and the inter-related case concerning another family (referred to as “the Bajalan family”) who were stopped around the same time. The factual conclusion reached by the Council, so far as is relevant, is set out at paragraph 36(a):
“That the evidence does not establish that either family were intending to travel to Syria, either for innocent or sinister purposes. Whilst the messages set out at paragraph 10 above are prima facie suspicious – and no explanations has been offered for their existence – they are, in fact the only direct evidence of any intention to travel beyond the stated destination and only relates directly to the Bajalan family – about whom, as will be discussed below, there is less evidence relating to ‘mindset’. Even taking all of the evidence in total with respect to both families, as set out above and giving full weight to those circumstantial elements such as money being carried and the infrequent exhibits relating directly to Turkey and/or Syria, the Local Authority has concluded that it is not possible to conclude to the relevant standard that there was an intention to travel beyond their stated destinations. Indeed there is substantial evidence that relates to similar previous trips having been made and considerable familial associations with the stated destinations together with conversations regarding plans to travel that do not mention going beyond the stated destination”.
By an order dated 25 July 2016 Russell J granted the Council permission to withdraw the care proceedings and discharge the wardship order.
The order of Russell J stated, so far as is relevant:
“8. It is Recorded that:
(a) the local authority does not seek any findings that the child's parents attempted to remove the child from the jurisdiction of England and Wales for the purpose of the family travelling to Syria (or some alternative relevant destination) with a view to participating in or supporting either directly or indirectly terrorist activities in support of ‘Islamic State’ or some other terrorist organisation affiliated thereto.
(b) The court makes no adverse findings in respect of the parents relating to events on 2 August 2015 when the parents...
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