AS, R (On the Application Of) v The Secretary of State for the Home Department

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.

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 were stopped at the sea port of Dover, or from any matters arising in the subsequent police investigation (Operation Sub-article).

(c)

The court is not invited to make any adverse findings against the parents by the local authority or any party to these proceedings.

(d)

The police have thoroughly investigated the case and have decided not to proceed with any criminal charges with respect to the parents, who are no longer subject to Police Bail conditions.

(e)

There are no welfare concerns with respect to the day-to-day care of the child by the parents, and the local authority do not seek to play any further role following the ‘exit LAC’ or ‘closure meeting’ which is due to take place on 18 August 2016. …

9.

It is Further Recorded that:

(a)

DC Matkin and DS Mangan from the North West Counter Terrorism Unit attended to assist the Court and parties with respect to (i) the Police position re future travel and (ii) restoration of seized property to the parents, in light of the court’s decision to allow the local authority to withdraw these proceedings.

(b)

DS Mangan confirms that he will ensure that any police markers arising from the Police investigation (Operation Sub-article) will be removed forthwith if they have not been removed already.

(c)

DS Mangan will restore as much of the seized property as is practicable at a meeting which has been arranged on 27 July 2016 at Admiral Street Station at 10am (for the [AS] family). The balance of any property will be restored as soon as practicable thereafter with a date to be confirmed at the meeting on 27 July 2016. This will not include [AS]’s passport which has been cancelled under the Royal Prerogative.

(d)

The request made by the court on 23 October 2016 to the passport and travel document issuing authorities of Germany, the Kingdom of the Netherlands, the Republic of Iraq and the United Kingdom not to issue, or cause to be issued any further passports or documents enabling travel to the mother, father, child and uncle is withdrawn.

(e)

The request made by the court on 23 October 2016 to the passport and travel document issuing authorities of Germany, the Kingdom of the Netherlands, the Republic of Iraq and the United Kingdom to notify the Local Authority upon any person attempting to apply for passports or travel documents for the mother, father, child and uncle is withdrawn. …

THE COURT ORDERS THAT:

1.

The court grants permission to the local authority to withdraw (i) the care proceedings, and (ii) to apply to discharge the wardship order dated 23 October 2015.

2.

The Wardship order in respect of the child is discharged.

3.

The local authority withdraws the application issued on 22 October 2015 for care orders in respect of the child with the permission of the court.

…

7.

The solicitor for the father [AS] has permission (a) to disclose a copy of this order and the recordings herein into any proceedings in the Administrative Court in respect of his passport which is said to have been cancelled under the Royal Prerogative, and (b) to disclose the police disclosure that has been obtained within the care proceedings to the solicitors and counsel instructed in respect of any proceedings in the Administrative Court in respect of his passport.

8.

The parents have permission of the court to disclose this order to seaport, airline or border officials in the event that their reasons for any future travel beyond the jurisdiction is queried by officials.”

The grant or withdrawal of a passport is an exercise of the Royal Prerogative. The Court of Appeal in XH confirmed that the Royal Prerogative continues to exist in relation to the grant or withdrawal of a passport, and that the Written Ministerial Statement of 25 April 2013 (the “WMS”) is lawful.

It is common ground that EU law is engaged (XH).

Article 27 of the Citizens’ Directive 2004/38 provides, so far as is relevant, that:

“(1)

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

(2)

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society…”

In XH at para 116 Sir Terence Etherton MR, delivering the judgment of the court, said:

“We accept that the fundamental nature of the rights involved in the present case give rise to a need for a strong justification for any interference”.

When considering a measure liable to hinder or to make less attractive the exercise of fundamental freedoms guaranteed by the Treaty, the court must determine whether the measure is suitable to achieve the legitimate aim in question, and must then determine whether it is no more onerous than is required to achieve that aim, if there is a choice of equally effective measures (R (Lumsdon) v Legal Services Board [2016] AC 697 at paragraph 55).

The focus of the challenge made by Mr Southey to the December 2016 decision is on the Family Court order. He contends that the central open allegation against the Claimant that on 2 August 2015 he intended to travel to Syria for terrorism-related purposes is the same allegation as the Council abandoned and Russell J consequently rejected, and that her order implied a judicial assessment that there was no reason why the Claimant should not travel with his family.

The threshold for making a care order set out in s.31(2) of the Children Act 1989 is that the court must be satisfied that the child concerned is suffering, or is likely to suffer, significant harm attributable to the care given to the child not being what it would be reasonable to expect a parent to give to him. Mr Southey submits that it is difficult to see how that threshold will not have been met if the allegations against the Claimant had been made out.

Mr Southey points out that the judge was not bound to adopt the position of the Council. She has an “inquisitorial” role, her duty being to further the welfare of the child which, by statute, is her paramount consideration (see The London Borough of Tower Hamlets v M and others [2017] EWFC 37, per Pauffley J at para 42; and now also see A Local Authority v A Mother and others [2017] EWCA 3741 (Fam), per McDonald J at paras 47-53).

Mr Southey submits that what the Secretary of State could not do was ignore the order of Russell J. The Council triggered the order by applying to withdraw the proceedings, but that decision was not binding on the court which was obliged to determine whether, having regard to the interests and safety of the child, the wardship order should be discharged and the Council should be permitted to withdraw the application for a care order in respect of the child. The order of the court was made after Russell J had considered all the material before her.

When considering the decision of the Family Court, Mr Southey submits, one should do so on the assumption that it had before it all relevant material. That, he contends, is a reasonable approach, having regard to the guidance on “Radicalisation Cases in the Family Courts” issued by Sir James Munby, President of the Family Division, on 8 October 2015. The Guidance states, so far as is relevant:

“10.

I draw attention to what Hayden J has said about ‘The importance of co-ordinated strategy, predicated on open and respectful co-operation between all the safeguarding agencies involved’ and the need for ‘open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter-agency co-operation’ if children in such cases are to be provided with the kind of protection they require.

11.

This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and other agencies. But there must be reciprocity.

12.

The police and other agencies recognise the point made by Hayden J that ‘in this particular process it is the interests of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter-terrorism policy or operations’. The police and other agencies also recognise the point made by Bodey J that ‘it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities… or other public bodies’.”

The guidance noted ‘the fact that some of the information gathered by the police and other agencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk’ (para 7(c)), and that such cases may raise PII issues (para 6(a)). The closed procedure can be used in family proceedings in the High Court (see Commissioner of Police of the Metropolis v A Local Authority [2016] EWHC 2400 (Fam) at para 95). Although the Secretary of State was not a party to the Family Court proceedings the duties imposed on the police to disclose information relevant to protecting the child necessarily imposed duties on the State in relation to the child’s Article 3 rights (see Wille v Lichtenstein [1997] 24 EHRR CD45 at CD48).

Mr Southey submits that in maintaining the cancellation decision, the Secretary of State did not consider the Family Court order of 25 July 2016; alternatively, if she was aware of the order, she did not properly consider its effect. The failure to take proper account of the order has, he submits, two consequences: first, it means that the decision was not in accordance with the law as a consequence of the failure to ensure that she was properly briefed (see Secretary of State for the Home Department v AT [2009] EWHC 512 (Admin), per Mitting J at para 17); and second, it impacts on the weight to be given to the assessment made by the Secretary of State when this court assesses proportionality for itself (R (A) v Chief Constable of Kent [2014] 135 BMLR 22 at para 39).

Mr Southey submits that whether or not the sensitive material was disclosed, the Secretary of State is essentially bound by the relevant findings made by Russell J; or, at the very least, the Secretary of State was obliged to grapple with the outcome of the Family Court proceedings. The order of the Family Court was a highly material factor to which the Secretary of State should have had proper regard. In support of this submission he relies very much on the decision of the Supreme Court in R (Evans) v Attorney General [2015] AC 1787.

Mr Southey points, in particular, to para 52 where Lord Neuberger states:

“First, subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive.”

Lord Neuberger continues at para 60:

“There are three previous decisions of the Court of Appeal which bear on the question whether Parliament can have intended a member of the executive to be able freely to consider, or reconsider, for himself the very issues, on the same facts, which had been determined by another person or a tribunal. I agree with Lord Wilson JSC that (quite apart from the fact that they are not binding on us) none of these decisions, or the reasoning which they contain, would be directly determinative of the instant appeal. However, they cast some light on the appropriate approach to be adopted in a case where two separate bodies are called on by statute to determine the same issue.”

The three decisions that Lord Neuberger refers to are R v Warwickshire County Council, ex p Powergen plc (at para 61), R v Secretary of State for the Home Department, ex p Danaei (at para 62) and R (Bradley) v Secretary of State for Work and Pensions (Attorney General intervening) (at para 63). At paragraphs 63-65 Lord Neuberger considered the three cases and their significance for Mr Evans’ case. At paragraph 66 Lord Neuberger said:

“…In order to decide the extent to which a decision-maker is bound by a conclusion reached by an adjudicative tribunal in a related context, regard must be had to the circumstances in which, and the statutory scheme within which, (i) the adjudicative tribunal reached its conclusion, and (ii) the decision-maker is carrying out his function. In particular, the court will have regard to the nature of the conclusion, the status of the tribunal and the decision-maker, the procedure by which the tribunal and decision-maker each reach their respective conclusions (e.g., at the extremes, (i) adversarial, in public, with oral argument and testimony and cross-examination, or (ii) investigatory, in private and purely on the documents, with no submissions), and the role of the tribunal and the decision-maker within the statutory scheme.”

Mr Southey submits that the application of the principles in Evans at para 66 (and para 69) supports a flexible approach to the issue.

Mr Southey describes the high point of his submissions based on Evans as that the decision of the Family Court had to be respected unless new material comes to light. If he is wrong about that, then the real issue is the extent to which the Secretary of State was properly briefed as to the High Court proceedings and context in which the Order was made. In that regard he submits that the evidence indicates the Secretary of State was based on inadequate material, and should therefore be quashed.

I do not accept the contention that in maintaining the cancellation decision the Secretary of State did not consider the order of the Family Court, or that if she was aware of it, she did not properly consider its effect. The internal review of her decision to cancel the Claimant’s passport was carried out at the request of the Claimant’s solicitor in the light of the order of Russell J, a copy of which was enclosed with the letter of 3 October 2016. The gist of the Home Office submission dated 15 December 2016 referred to the Family Court proceedings having been withdrawn as the Council assessed, following investigation, that they had no concerns and there was no need for their involvement (para 3), but that “despite Family Court proceedings falling away… [it was] concluded that the cancellation of [AS]’s passport would be in furtherance of safeguarding and promoting his son’s welfare, in order to try to prevent [AS] travelling with his son to join Daesh” (para 12).

I agree with Ms Lieven that the Claimant is not assisted by the case of Evans, on which Mr Southey primarily relies in support of his submissions as to the effect of the Order. The issues that concerned the Secretary of State and the Family Court are fundamentally different.

The Secretary of State’s decision to cancel the Claimant’s passport and the Family Court proceedings both arose out of the events on 2 August 2015 when he was stopped whilst attempting to travel with his wife and child from Dover to Calais. However, the issue with which the Secretary of State and the Family Court were concerned was very different. The Secretary of State in cancelling the Claimant’s passport and reviewing that decision was concerned with the maintenance of national security and the protection of the public. In the Family Court proceedings the child’s welfare was the court’s “paramount” consideration (Children Act 1989, s.1(1)). The Council’s statutory concern was to safeguard the child; if it reasonably considered that could be achieved without an order of the Family Court, there was no reason for it to pursue its application for a child protection order.

The Claimant, as I understand it, contends that because of the Order the Secretary of State was not entitled to conclude that the decision to cancel his passport should be maintained on the ground that he has “an aspiration to travel to Daesh-controlled territory in order to engage in terrorism-related activity”. However, there was no determination of that factual issue by Russell J. Ms Lieven accepts that the judge has an inquisitorial role, but in this case the hearing proceeded on the Council’s application to withdraw the proceedings, which the court accepted. The judge expressly recorded that she was not invited to make any adverse findings and so did not do so (see para 8 of the Order). The court was not invited to make any adverse findings against the Claimant and his wife, and there were no welfare concerns with respect to the day-to-day care of the child by his parents. Indeed, Russell J did not make any relevant findings of fact on the basis of the evidence before her, as the hearing proceeded by way of concession by the Council.

I also agree with Ms Lieven that the matters recorded in paragraph 9 of the Order do not assist the Claimant. The removal of police markings and restoration of seized property are the expected consequences of the termination of the proceedings. The Order records that the restoration of property “will not include [AS]’s passport which has been cancelled under the Royal Prerogative” (para 9(c)). Plainly the judge appreciated that the cancellation of the Claimant’s passport was a matter for the Secretary of State. The fact that the Order permits the solicitor for the Claimant “to disclose a copy of this order” (para 7(a) of the Order) into any proceedings in this court in relation to the cancellation of the Claimant’s passport, again, does not indicate that the judge was expressing any view on the decision of the Secretary of State to cancel the passport.

The material before the Secretary of State and the Family Court was also different. The Secretary of State was not a party to the Family Court proceedings; and the court did not have evidence or submissions from the Secretary of State. The Secretary of State had available to her material which was not before the Family Court. However no application was made for disclosure of material by the Secretary of State. I accept Ms Lieven’s submission that in the circumstances of this case there was no obligation on the Secretary of State to disclose sensitive material. As Ms Lieven observes, the Guidance requires a nuanced, fact-specific approach to highly sensitive information. No oral evidence was heard, and the hearing lasted a maximum of a day (the listing for a final hearing before Russell J, commencing 10 October 2016 with a time estimate of 10 days, being vacated).

I consider that the Secretary of State engaged with the Order and the Family Court proceedings to the extent that she was required to do so. I can identify no error in the approach of the Secretary of State to the Family Court proceedings. She was requested to undertake a review of her previous decision following a request by the Claimant informing her of the withdrawal of the Family Court proceedings. She conducted that review and concluded, on the basis of the material before her, that the cancellation of the passport should be maintained.

Finally, in relation to the requirement that this court determine proportionality for itself, Mr Southey contends that three additional matters may be relevant. First, that fundamental rights are in issue. As to that, Ms Lieven notes that in XH the Court of Appeal found that EU law was engaged but agreed with the Divisional Court that the decision to cancel XH’s passport was a proportionate restriction on freedom of movement which was in accordance with both domestic law and EU law.

Second, Mr Southey suggests that the concerns in the present case appear to have arisen as a consequence of a particular trip, and in those circumstances it is unclear why a TPIM could not have been used as an alternative, less intrusive, measure. However I do not accept that the security concern related to a single trip. It is clear from the December 2016 decision letter that the Secretary of State was concerned not only that the Claimant was trying to travel to Syria on one particular occasion, but that he maintained an aspiration to travel to Daesh-controlled territory and she was concerned that he would attempt to do so on other occasions.

Third, Mr Southey complains that the Claimant was not offered the possibility of applying for a single-use travel document to enable him to travel within the EU for family reasons. The fact is that he did not request such a travel document; and, as Ms Lieven observes, in any event it is unlikely that he would have been granted one as the Secretary of State believes that he wishes to travel, not to Berlin for familial reasons, but to Daesh-controlled territory in order to engage in terrorism-related activity.

For the reasons I have given, this claim is dismissed.