Neutral Citation Number: [2017] EWCA Civ 41
Case No: T3/2016/3471 3931
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (QBD)
LORD JUSTICE HAMBLEN and MR JUSTICE CRANSTON
CO54722014
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 02/02/2017
Before:
SIR TERENCE ETHERTON, MR
LORD JUSTICE LLOYD JONES
and
LORD JUSTICE SALES
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Between:
The Queen on the application of:(1) XH and (2) AI / Appellants
- and -
The Secretary of State for the Home Department / Respondent
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Hugh Southey QC and Barnabas Lams (instructed by Arani Solicitors) for the 1st Appellant
Daniel Beard QC, Nikolaus Grubeck and Julianne Kerr Morrison (instructed by Hickman and Rose) for the 2nd Appellant
James Eadie QC and David Blundell (instructed by the Government Legal Department) for the Respondent
Ashley Underwood QC and Bilal Rawat (instructed by the Special Advocate Support Office) as Special Advocates
Hearing dates: 13 14 December 2016
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Approved Judgment
Judgment Approved by the court for handing down. / R (XH & AI) v SSHDSir Terence Etherton MR:
Judgment Approved by the court for handing down. / R (XH & AI) v SSHD1. Introduction
1. This is the judgment of the court, to which all its members have contributed.
2. These appeals concern the cancellation of the passports of the appellants, XH and AI, on the grounds that the Secretary of State suspects that they plan to travel to be involved in terrorism-related activity. The Secretary of State is concerned to prevent them from travelling to Syria to fight with terrorist organisations there.
3. The appeals are from the decision of the Divisional Court, which dismissed the appellants’ various grounds of challenge to the cancellation of their passports. The Divisional Court granted both XH and AI permission to appeal in relation to one common ground of challenge, namely their argument that the Secretary of State’s purported exercise of powers under the royal prerogative to cancel their passports was invalid, because that prerogative power has been impliedly abrogated by the Terrorism Prevention and Investigation Measures Act 2011 (“the TPIM Act”). We refer to this ground as “the royal prerogative ground”; it was addressed as issue 1 in the judgment of the Divisional Court.
4. The Divisional Court also granted XH permission to appeal in relation to a group of complaints based on EU law, namely that there had been insufficient procedural safeguards, insufficient justification and no advance consultation in relation to the cancellation of his passport (“the EU law grounds”, issue 3 in the judgment of the Divisional Court).
5. On this appeal, Mr Beard QC for AI presented the submissions for the appellants in relation to the royal prerogative ground and Mr Southey QC presented the submissions for XH in relation to the EU law grounds.
6. In addition to these two grounds of appeal, XH sought to introduce two further issues on the appeal: (i) that there was unfairness and breach of Article 6 of the European Convention on Human Rights (“ECHR”), EU law and common law by reason of insufficient protection for his legal professional privilege (“LPP”) in dealing with his lawyers (“the LPP ground”, issue 7 in the judgment of the Divisional Court); and (ii) that the decision of the Divisional Court to make a costs order against XH was wrong in principle (“the costs ground”). The Divisional Court refused permission to appeal in relation to these grounds, but XH made an oral application to this court for permission to appeal in relation to them. At the hearing we refused permission to appeal and indicated that our reasons for doing so would be given in the judgment: see section 10 below.
7. In the course of the proceedings below, the Secretary of State applied for and was granted declarations under section 6 of the Justice and Security Act 2013 (“the JSA 2013”) to enable her to present evidence to the court of a secret nature, which for public interest immunity and national security reasons could not be put into the public domain or given to the appellants. Pursuant to these declarations, special advocates were appointed to represent the interests of the appellants in the closed part of the proceedings before the Divisional Court. There was a closed hearing before the Divisional Court in relation to XH’s case at which it reviewed the closed evidence available in relation to XH, with assistance from the special advocates.
2. Factual background
XH’s case
8. XH is a British national. His passport was cancelled on 29 April 2014 for the reasons contained in a letter of that date, 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. … "
9. The decision to cancel XH’s passport was based on the closed material reviewed by the Secretary of State.
10. 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.
11. On 26 November 2014, XH commenced the present proceedings. In the course of the proceedings XH amended his grounds of claim, to adjust those grounds in the light of further reasons given by the Secretary of State as the case proceeded.
12. Additional reasons for the cancellation of XH’s passport were provided in a further decision letter of 16 February 2015, 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."
13. On 21 October 2015, the Divisional Court (Burnett LJ and Cranston J) granted the declaration 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 reasons, and some disclosure, to XH in a letter dated 3 May 2016. That letter 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."
15. A two-day hearing had been fixed for an application for further orders pursuant to the section 6 declaration in the closed part of the proceedings. In the event, this was vacated by consent between the special advocates and the Secretary of State, after the special advocates had reviewed the closed material and confirmed that no further disclosure issues arose under Case C-300/11 ZZ (France) v. Secretary of State for the Home Department [2013] QB 1136.
16. However, as was confirmed at the hearing before us, the substantive hearing before the Divisional Court of XH’s claim for judicial review also included a closed hearing involving counsel for the Secretary of State and the special advocates, at which the court was taken through the closed evidence in the case.
17. On 3 June 2016, XH served his final Amended Grounds of Claim. On 20 June 2016, he provided a witness statement to accompany his claim. In his witness statement he denied any involvement in Islamic extremism or terrorism-related activities and any intention to travel to Syria.
18. XH’s Amended Grounds of Claim included the submission at paragraph 18 that:
“proportionality cannot be established because … [XH’s] account demonstrates that there is no substance in the allegations [against him]. This means that it has not been established that there has been personal conduct required in order to comply with article 27(2) [of Directive EC/2004/38 (“the Directive”)].”
19. After the substantive hearing before the Divisional Court the special advocates applied on 26 July 2016 on behalf of XH for a review and revocation of the declaration under section 6 of the JSA 2013. In their application they stated that they had had no need to make reference to any closed material and that the court had placed no reliance on closed material.