R (BM) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 03 July 2009 |
| Neutral Citation | [2009] EWHC 1572 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4851/2009 & PTA/38/2009 |
| Date | 03 July 2009 |
[2009] EWHC 1572 (Admin)
Before : MR JUSTICE MITTING
Case No: CO/4851/2009 & PTA/38/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF SECTION 10(1) OF THE PREVENTION OF TERRORISM ACT 2005
MISS DINAH ROSE QC & MR DANIEL SQUIRES (instructed by BIRNBERG PEIRCE & PARTNERS SOLICITORS) for the Appellant
MR JONATHAN HALL & MISS KATHERINE GRANGE (instructed by THE TREASURY SOLICITOR) for the Respondent
MR MOHAMMED KHAMISA QC (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 12th & 22nd June 2009
MR JUSTICE MITTING :
Background
BM is a 36 year old British citizen. He is married and has five children aged from four to eleven. His wife has undertaken divorce proceedings against him, but they are on amicable terms and share the upbringing of their children. Until his removal to Leicester on 21 st May 2009, BM divided his time between his mother's home in Ilford – a house owned by his brother Daniel Adam – and a house in Ilford formerly owned by BM, but now transferred into his wife's name and divided into flats. When residing there, he occupied a ground floor flat. His wife and children live in the first floor flat.
On 2 nd August 2007 BM was designated under the Terrorism (United Nations Measures) Order 2006. His designation is currently the subject of an appeal to the House of Lords. On 30 th April 2009 Ouseley J gave permission to the Secretary of State to make a non-derogating control order in respect of BM. It was served on 1 st May 2009. On 8 th May 2009 I gave directions for the hearing of BM's appeal against the decision to make the control order under section 3(10) of the Prevention of Terrorism Act 2005. The appeal is due to be heard in the week commencing 25 th January 2010. The control order as served required BM to reside at his mother's home in Ilford. The statement of Miss Hadland, dated 29 th April 2009 which accompanied the application for permission to make the order, indicated that it was intended, for national security reasons, to relocate BM to an address, yet to be identified and secured, approximately 2 – 3 hours outside of London. Due to an administrative error, that intention was not made known to BM until 8 th May 2009. By letter dated 14 th May 2009, the Secretary of State notified BM that he would be relocated to a new address in Leicester on 21 st May 2009. The address was, in fact, a one bedroom flat. It was intended, after about a month, to locate a family house suitable for occupation by BM, his wife and children, should they choose to join him. On 15 th May 2009 BM gave notice of appeal under section 10(1)(b) against the modification. On 20 th May 2009 BM applied for an injunction restraining removal to the Leicester address. The application was refused by Blake J on the same day. He did, however, give directions for the hearing of BM's appeal against the modification, which I began to hear on 12 th June 2009. On 21 st May 2009 BM was served with a modified control order which required him to reside at the Leicester flat. He was moved to that address on the same day. He has remained there since. The addresses of the three properties are identified in a confidential schedule.
The first issue: does Article 6(1) ECHR apply to this appeal?
Miss Rose QC for BM submits that his appeal against the modification determines his civil rights and obligations in three respects: his right to respect for family life under Article 8 and to access to his children; the state-imposed obligation on where he is to live; and his right to occupy either or both of the homes in Ilford at which he resided before 21 st May 2009. The first two grounds are open to debate. The right to respect for family life is a Convention, not a civil right, although it may include a package of civil rights. One of them may be the right of access to children by a parent: W v United Kingdom [1987] 10 EHRR 29 paragraph 78. But the modification challenged does not deprive BM of access to his children. For an uncertain period likely to be counted in weeks, it may make access more difficult; but if the Secretary of State locates a suitable family home away from Ilford and BM's wife and children choose to live in it with him, his right of access to his children will be unimpaired. Even if that were not to happen, his appeal against the modification does not determine his right of access to his children. At most, it may have a partial indirect effect upon it. That would be insufficient to engage Article 6(1). The obligation to reside at a particular address, imposed for reasons of national security, is not obviously a civil obligation, except in the sense that it is not imposed by, or in consequence of, an order of a court exercising criminal jurisdiction. My provisional view – I have not heard full argument upon the question – is that it falls within the “hard core of public authority prerogatives” identified in Ferrazzini v Italy (2002) 34 EHRR 1068 as falling outside the scope of civil rights and obligations.
It is unnecessary for me to resolve these controversial questions, because, subject to an argument advanced by Mr Hall for the Secretary of State, Miss Rose's third ground is securely founded. The right to occupy land, including a home, is a classic civil right. Proceedings which determine that right are subject to Article 6(1): Gillow v United Kingdom (1986) 11 EHRR 335 paragraph 68. I take that to be so even in the case of proceedings which determine that right for a limited period. A fairly close analogy is a decision to make a closure order under section 2 of the Anti Social Behaviour Act 2003. Proceedings before the Magistrates' Court are civil proceedings: Metropolitan Police Complaints Commissioner v Hooper [2005] EWHC 340 (Admin). The challenged modification is clearly intended to remove BM's right to occupy either of his homes in Ilford for a significant period – at least until the hearing of his section 3(10) appeal. Subject to Mr Hall's point, which I discuss below, I am satisfied that BM's appeal against that modification does involve the determination of his civil right to occupy either or both of his homes.
Mr Hall's point is that the closed material establishes that BM did and does not intend to occupy either of his homes, so that his appeal against the modification does not determine a civil right of any real value to him. All that it decides in relation to that right, is an interim measure which has the effect of maintaining the status quo. It is settled law that Article 6 does not apply to proceedings relating to interim orders or other provisional measures adopted prior to the proceedings on the merits, because such measures do not in general involve the determination of civil rights and obligations: R(Wright) v Secretary of State for Health [2009] UKHL 3 per Baroness Hale at paragraph 20. Only those interim measures which have such a clear and decisive impact upon the exercise of a civil right attract the application of Article 6(1): paragraph 21. Accordingly, Mr Hall submits that, if BM did not intend to occupy either of his homes, the impact on his civil right is theoretical. Accordingly, Article 6(1) does not apply to the determination of his appeal against the modification which affects that right.
Mr Hall does not shrink from the startling result of his argument. BM will not be able to give effective instructions about the decision of the Secretary of State to deprive him of the civil right to occupy his homes because, for reasons which are not disclosed to him, this appeal does not determine that right. Indeed, the opportunity to avoid...
To continue reading
Request your trial
-
Secretary of State for the Home Department v AF and AE
...v BC and BB [2009] EWHC 2927 (Admin) [57]. A similar approach appears to have been taken by Mitting J in BM v Secretary of State [2009] EWHC (Admin) 1572 [12] and [13]. Finally, the Employment Tribunal in Tariq v The Home Office ( UKEAT/0168/09) held that the decision in AF (No.3) should ap......
-
QX v Secretary of State for the Home Department
...extent of the obligations themselves and the overall context. 71 This is consistent with the approach of Mitting J in BM v Secretary of State for the Home Department [2009] EWHC 1572 (Admin), [2010] 1 All ER 847, para 8. He refused to draw a distinction between an appeal against a modifica......
-
BX v Secretary of State for the Home Department
...Office policy for relocations.” Attention was drawn to the decision, made in similar circumstances, of Blake J in BM and Others v. Secretary of State for the Home Department [2009] EWHC 1159 (Admin) to which reference is made below at paragraph 29. The applications within the claim for jud......
-
QX v Secretary of State for the Home Department
...the three obligations’ (paragraph 70). She referred to a decision of Mitting J in BM v Secretary of State for the Home Department [2009] EWHC 1572 (Admin); [2010] 1 All ER 847, paragraph 8. He refused to distinguish between an appeal against a modification of a control order and a review o......
-
Secret Control Order Hearings: A Qualified Victory for the Right to a Fair Trial
...following theirLordships’ judgment, in the case of BM v Secretary of State for the Home 392 Secret Control Order Hearings Department [2009] EWHC 1572 (Admin), has also seen judicial criticismof the extent to which the judge’s statutory remit has changed followingthe ruling. Mitting J stated......