Xh and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] EWHC 1898 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2016 |
| Docket Number | Case No: CO/5472/2014 |
[2016] EWHC 1898 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice, Strand
London, WC2A 2LL
Lord Justice Hamblen
Mr Justice Cranston
Case No: CO/5472/2014
CO/6255/2015
The Queen on the application of
Hugh Southey QC and Barnabas Lams (instructed by Arani and Co) for XH
Daniel Beard QC, Nikolaus Grubeck and Jack R. Williams (instructed by Hickman & Rose) for AI
James Eadie QC and David Blundell (instructed by Government Legal Department) for Secretary of State for the Home Department
Mr Ashley Underwood QC and Bilal Rawat (instructed by the Special Advocates' Support Office) as Special Advocates for XH
Hearing dates: 7 and 8 July 2016
Judgment Approved by the court for handing down
Introduction
This is the judgment of the Court.
This case concerns the power of the Secretary of State for the Home Department ("the Secretary of State") to cancel or withdraw passports under the Royal Prerogative from persons suspected of involvement in terrorism related activities.
The claimants, XH and AI, contend that the Secretary of State no longer has such a power or, if she does, that it was not lawfully exercised.
XH's challenge was listed as a rolled up hearing at the outset of which we determined that permission should be given on all grounds. Those grounds are:
(1) Breach of EU law because of insufficient procedural safeguards, insufficient justification and no advance consultation;
(2) Breach of Article 6 ECHR;
(3) Breach of Article 8 ECHR;
(4) Insufficient justification in domestic law;
(5) Wrongful use of the Royal Prerogative to cancel the Claimant's passport instead of using powers under the Terrorism Prevention and Investigation Measures Act 2011 (the "TPIM Act"); and
(6) Unfairness and breach of Article 6 ECHR, EU law and common law because there is insufficient protection of legal professional privilege ("LPP").
By order of Cranston J dated 21 June 2016, AI was permitted to advance his first two grounds of claim at the hearing. AI's ground 1 mirrors ground (5) above. AI's ground 2 is that the Secretary of State's decision is a breach of AI's fundamental rights because the decisions in his case were not in accordance with the law or the principle of legal certainty – ground (7).
Factual background
XH
XH is a British national whose passport was cancelled on 29 April 2014 for the reasons contained in a letter of that date which stated as follows:
"This letter is to inform you that the above passport has been cancelled and you are no longer permitted to use this document to travel to and from the United Kingdom.
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). The Home Secretary considers that it is not in the public interest that you should hold a passport.
You are a British National who is involved in terrorism-related activity. It is assessed that you are likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities 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. Her Majesty's Passport Office requests that you return the passport to the police officer delivering this letter.
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. If you require any further information, please contact Her Majesty's Passport Office, quoting the above reference number."
On 13 November 2014, XH was convicted of a series of criminal offences involving robbery, attempted robbery and possession of a bladed article. On 19 November 2014, he was sentenced to a term of imprisonment of 5 years and 6 months.
On 26 November 2014, XH commenced the present proceedings.
Additional reasons for the cancellation of his passport were provided in a further decision-letter of 16 February 2015 which stated as follows:
"You are a British national involved in terrorism-related activity. It is assessed that you are an Islamist extremist. It is assessed that prior to the exercise of the Royal Prerogative you have been in possession of media concerning anti-American and Israeli propaganda and video clips in support of jihad and violence. It is assessed that prior to the exercise of the Royal Prerogative you may have maintained contact with associates assessed to be located in Syria where they were engaged in Islamist extremist activities. It is assessed that prior to the exercise of the Royal Prerogative you were likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities overseas would present a risk to the national security of the United Kingdom."
On 27 February 2015, XH filed his first set of Amended Grounds.
On 13 May 2015, the Secretary of State applied for a declaration pursuant to section 6 of the Justice and Security Act 2013 (the " JSA 2013"). For the reasons set out in a judgment delivered on 21 October 2015, the Divisional Court (Burnett LJ and Cranston J) granted the section 6 declaration: [2015] EWHC 2932 (Admin). XH's application for permission to appeal was dismissed by the High Court on 20 November 2015, and by the Court of Appeal on 28 January 2016. A separate application for permission to appeal from the Special Advocates was also dismissed by the Court of Appeal on 28 January 2016.
Following meetings between the Special Advocates and counsel for the Secretary of State, the Secretary of State provided further reasons, and some disclosure, to XH in a letter dated 3 May 2016 which stated as follows:
"The Secretary of State was invited to exercise the Royal Prerogative to cancel the Claimant's British passport on the grounds that his activities are undesirable for reasons of national security.
She was provided with a written submission and supporting material which recommended that she agree that the public interest criteria for exercising the prerogative are met and that the passport should be cancelled, and that she should sign an authority for the passport to be retrieved from the Claimant. What follows is a summary of that submission;
The Claimant is a British citizen, born in London in 1990 and currently residing there. He has a criminal record dating back to 2009, which includes offences such as theft and violence against a police officer. He is believed to be currently involved in criminal activity including dealing in stolen property and student loan fraud;
The Claimant is an Islamist extremist. He may have maintained contact with associates assessed to be located in Syria where they are engaged in Islamist extremist activities, including fighting; he has repeatedly expressed a desire to travel overseas to participate in Islamist extremist activities; and he has been involved in activities in tangible and practical support of Syria-based Islamist extremist associates;
The Home Secretary's written ministerial statement of 25 April 2013 sets out the criteria for exercising the Royal Prerogative on public interest grounds, and provided that passport facilities may be refused or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example engage in terrorism-related activity or other serious or organised criminal activity;
The detail set out in the submission shows that the Claimant is intending to travel overseas to engage in terrorist related activity, likely to be related to Syria. His past, present and proposed activities if he should travel to Syria support the view that it would be contrary to the public interest for him to hold a British passport. The risk posed by the Claimant is assessed to be better managed if he were unable to travel overseas to Syria;
Removal of the passport is necessary and proportionate to the threat the Claimant poses; other disruptive measures have been considered and rejected;
Although there may be arrest opportunities, they are uncertain and it would not necessarily be the case that the Claimant would be required to surrender his passport as a condition of bail;
There is no reason to believe that the Claimant has family overseas or any legitimate overseas travel plans;
If there are compelling circumstances requiring the Claimant to travel within the EU and if the risk to national security could be adequately managed, it may be possible to consider issuing a single-use travel document;
If following a decision to exercise the Royal Prerogative, the Claimant applied for a passport or a temporary travel document, or requested reconsideration of the cancellation of his passport, the assessment will be reviewed and further advice provided to the Secretary of State;
There is written administrative guidance setting out the process by which the Secretary of State is invited to exercise her power under the Royal Prerogative to cancel a British passport on the grounds of national security. That process was followed in the case of this Claimant;
The Secretary of State's case against the Claimant is not based on his previous travel overseas."
A two day hearing had been fixed for the hearing of an application for subsequent orders to the section 6 declaration. This was, however, vacated by consent following agreement by the Special Advocates that no further disclosure issues under Case C-300/11 ZZ (France) v. Secretary of State for the Home Department [2013] QB 1136 arose between the parties.
On 3 June 2016,...
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