XH (Respondent/Claimant) v Secretary of State for the Home Department (Applicant/ Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Cranston |
| Judgment Date | 21 October 2015 |
| Neutral Citation | [2015] EWHC 2932 (Admin) |
| Docket Number | Case No: CO/5472/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 October 2015 |
[2015] EWHC 2932 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice Burnett
The Hon Mr Justice Cranston
Case No: CO/5472/2014
James Eadie QC, Tim Eicke QC and David Blundell (instructed by the Government Legal Department) for the Applicant
Hugh Southey QC and Barnabas Lams (instructed by Arani Solicitors) for the Respondent
Ashley Underwood QC and Bilal Rawat (instructed by SASO) as Special Advocates
Hearing dates: Thursday 8 October 2015
We are concerned with an application made by the Secretary of State for the Home Department for a declaration pursuant to section 6 of the Justice and Security Act 2013 to permit her to make a closed material application in these judicial review proceedings. At the conclusion of the oral argument we announced our decision to make the declaration. These are my reasons for doing so.
The claimant is a British National. On 29 April 2014, using her powers under the Royal Prerogative, the Home Secretary cancelled his British passport. She did so in accordance with a written ministerial statement made on 25 April 2013 entitled 'The Issuing, Withdrawal and Refusal of Passports'. The letter written to the claimant notifying him of the decision provided an indication of the underlying reasons:
"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 overseas would present a risk to the national security of the United Kingdom. You are therefore considered a person whose past, present or proposed activities are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest."
These proceedings were issued on 26 November 2014. Two days before filing summary grounds of resistance, the Home Secretary provided further information to the claimant by letter dated 16 February 2015 in these terms:
"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."
These short paragraphs comprise the reasons provided to the claimant for the withdrawal of his passport. The decision was taken on the basis of information provided to the Home Secretary which, in a statement dated 28 April 2015, she says "cannot be disclosed in OPEN because of the damage such disclosure would cause to the interests of national security." She describes that as her "clear view".
We heard submissions in open court from the parties and in writing in open from Special Advocates. We heard submissions in a closed session in the absence of the claimant's team during which we considered the material and further submissions from Mr Underwood QC as Special Advocate. In the event, it is unnecessary to produce a closed judgment in addition to this open judgment.
The claim for judicial review, which seeks the quashing of the decision to cancel the claimant's passport and damages for breach of article 8 of the European Convention on Human Rights, is brought on various grounds. It is sufficient for the purposes of this judgment to record that the claimant relies upon EU law, which provides the right to exit one's own country for the purpose of exercising free movement rights within the EU and also upon the ECHR and the common law. His case is that the cancellation of his passport is unlawful, in particular that it is a disproportionate response to whatever risk the Home Secretary (mistakenly) believes he poses.
The claimant relies particularly on EU rights in the light of the decision of the Court of Justice of the European Union in Case C-300/11 ZZ (France) v Secretary of State for the Home Department [2013] QB 1136. EU law recognises that the relevant free movement rights may be curtailed in the public interest including on grounds of national security (see Article 27 of Directive 2004/38/EC). The claimant points to Article 30 (2) of the same directive which provides:
"The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision in their case is based, unless this is contrary to the interest of state security."
The Luxembourg court was concerned in ZZ to determine the nature and extent of disclosure required by EU law in what it described as 'state security' cases. In paragraphs 65 to 69 of its judgment it provided the answer:
"65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision… is based, as the necessary protection of state security cannot have the effect of denying the person concerned of his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 of that Directive ineffective.
66. Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the member state concerned — on which the conclusion set out in the preceding paragraph of the present judgment is founded — is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise state security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.
67. In that context, the national court with jurisdiction has the task of assessing whether and to what extent the restrictions on the rights of the defence arising in particular from a failure to disclose the evidence and the precise and full grounds on which the decision taken under article 27 of Directive 2004/38 is based are such as to affect the evidential value of the confidential evidence.
68. Accordingly, it is incumbent on the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.
69 In the light of the foregoing considerations, the answer to the question referred is that articles 30(2) and 31 of Directive 2004/38, read in the light of article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under article 27 of that Directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence."
In the light of the nature and breadth of the claimant's challenge Mr Southey QC submits that the substance of the decision is in issue. The full reasons for the Home Secretary's actions should be before the court. He accepts that if there is sufficient justification for non-disclosure of such material those concerns can be met by a closed procedure, subject to the minimum disclosure requirements guaranteed by law. For that reason the claimant "was not saying it was inappropriate" to make the declaration but that the statutory tests must be met before making the declaration having regard particularly to the submissions of the Special Advocates. They have seen the sensitive material.
Mr Southey submits that before the issue whether to allow the Home Secretary to make closed material applications in these proceedings is determined it is necessary to decide whether the claimant's EU rights are in play. That is because the answer to that question might condition the scope of disclosure required to determine the proceedings, given the approach of the Luxembourg Court in ZZ. To my mind that puts the cart before the horse. The declaration...
To continue reading
Request your trial
-
Muna Abdule v The Foreign and Commonwealth Office
...therefore, there is a discretion to be exercised. That was recognised in XH v Secretary of State for the Home Department [2015] EWHC 2932 (Admin) at [22], but, as the Court also said, ‘given that the second condition requires the court to conclude that it is in the interests of the fair an......
-
Gallagher's (Michael) Application
...of State for the Home Department [2015] EWCA Civ 686 at paragraph [47] (vii) and XH v Secretary of State for the Home Department [2015 EWHC 2932 Admin at paragraph [12]. [30] A decision which may go further than the authorities cited above is that of McCafferty v Secretary of State for Nort......
-
R (XH) v Secretary of State for the Home Department
...under section 6 of the JSA 2013 to allow for a closed part of the proceedings in parallel with the open part of the proceedings: [2015] EWHC 2932 (Admin). 14 Following meetings between the special advocates and counsel for the Secretary of State, the Secretary of State provided further rea......
-
Xh and Another v Secretary of State for the Home Department
...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 Janu......