B & Anor v Secretary of State for the Home Department

B and ND, the Claimants in this matter, are British Citizens and they were both the holders of British passports. On 24^th May 2017 the Security Minister, acting on behalf of the Secretary of State for the Home Department (Footnote: ¹) (‘the SSHD’), exercised the Royal Prerogative to cancel each of their passports. By these proceedings, the Claimants challenge the legality of those decisions. They have permission, granted by Ouseley J. to rely on two of their grounds. Their Claim Forms have been amended with the permission of Supperstone J. to add in each case a third and fourth ground. The Claimants need further permission to advance those additional grounds, but Supperstone J. also directed that, as far as those grounds were concerned, the present hearing should be treated as a ‘rolled up hearing’ to consider on the same occasion whether permission should be granted and, if it should, whether those additional challenges to the cancellation of the passports assisted the Claimants to establish that the SSHD’s decisions were wrong in law. Other grounds, originally advanced, were refused permission by Ouseley J. and have not been renewed. An anonymity order was made by Lang J. in relation to B on 27^th October 2017 and by Ouseley J. on 19^th January 2018 in relation to ND. The two cases have not been consolidated but on 30^th January 2018 Supperstone J. directed that that they be heard together.

In these proceedings the SSHD wished to rely on closed material and the necessary directions have been given under Justice and Security Act 2013 (‘JSA 2013’) s.6. That allowed the SSHD to rely, in principle, on closed material. As is required, Special Advocates have been appointed to represent the Claimants’ interests in relation to the closed material (Helen Mountfield QC and Paul Mertens for B; Angus McCullough QC and Jennifer Carter Manning for ND). Following the usual practice, the SSHD set out in closed submissions her objections to disclosure of the closed material. These were considered by the Special Advocates. I conducted a closed hearing to deal with the matters which remained in dispute pursuant to JSA 2013 s.8. Such hearings have to consider first whether the SSHD had made good her objection that disclosure of the material in question and any summary or gist of the material would be contrary to the interests of national security. But the SSHD accepts that even if this is established, there is a second issue, namely whether EU law nonetheless requires disclosure of the material or a summary of it – see ZZ (France) v Secretary of State for the Home Department (No.2) [2014] QB 820. The Claimants argued that this obligation had to be interpreted by reference to (with the consequence that it was enlarged by) AF (No.3) v Secretary of State for the Home Department [2010] 2 AC 269. The SSHD disputed that AF (No.3) had this effect, but, without prejudice to that submission, was willing for me to conduct the section 8 review on the interpretation of the disclosure obligation most favourable to the Claimants.

Following this exercise, the SSHD made further disclosures on 20^th April 2018. That in turn led to the service of further evidence by the Claimants and the amendment of the Claim Form to add what in each case are now the 3^rd and 4^th grounds of challenge.

In April 2017 both B and ND were due to take part in a humanitarian convoy which was destined to provide assistance to those in need in Syria. It comprised about 80-100 vehicles including ambulances containing medical equipment and other humanitarian aid. About 200 people were also in the Convoy. The plan was for those from the U.K. to drive the vehicles to the border of Bulgaria and Turkey. After that, the intentions of the convoy’s organisers was that local volunteers would then take over the vehicles and drive them to Syria.

The convoy overall was known as ‘the Unity Convoy’. B and ND were involved through their connections with Anaya Aid, which was one of the charities that had organised the Unity Convoy. ND was the West London organiser for Anaya Aid and in charge of its West London warehouse. He was due to be the leader of a group of 10 vehicles. B had provided voluntary assistance for Anaya Aid since the end of 2016 / beginning of 2017 and was to be one of the other drivers on the Unity Convoy.

B was originally from Algeria and (in addition to his British passport) held an Algerian passport. He was married and in April 2017 he and his wife had two children. ND’s parents were Moroccan. He himself was born in the UK. In April 2017 he was married and had 6 children aged from a few months to 16 years old.

The convoy reached Dover on 24^th April 2017. A few of those involved in the convoy were there questioned by the Kent police, exercising their powers under the Terrorism Act 2000 (‘TA 2000’) Schedule 7 paragraph 2. Those questioned included B and ND and also the Chief Executive Officer of Anaya Aid, Mohammed Tahir Malik. The Counter-Terrorism and Security Act 2015 (‘CTSA 2015’) Schedule 1 paragraph 2(1) and 2(5) authorises a police officer who has reasonable grounds to suspect that a person intends to leave the UK for the purpose of involvement with terrorist related activity outside the UK to require the person concerned to hand over all travel documents in his or her possession. A ‘travel document’ is defined in paragraph 1(6) & (7) to include a passport, whether issued by the UK or another country.

At the beginning of their interviews by police officers ND was required to hand over his British passport and B was required to hand over his British and Algerian passports. B was then interviewed between 4.09am – 10.04am (5 minutes short of the maximum 6 hour period that he could have been detained for such questioning – see TA 2000 Schedule 7 paragraph 6A). ND was questioned between 2.57am – 6.27am. I will return later to the notes of those interviews which were made by the officers.

CTSA 2015 Schedule 1 paragraph 4(1) requires an officer who has seized a travel document as soon as possible either to return the document or to seek the authorisation for its retention from a senior officer (viz an officer of at least the rank of Superintendent) – see CTSA 2015 Schedule 1 paragraph 4(1). In this case the retention of B’s and ND’s travel documents was approved by Detective Superintendent Kathryn Barnes on 24^th April 2017. Det. Supt. Barnes is from the Thames Valley Police which, I understand, operates a joint counter-terrorism unit with the Kent Police

Because their passports had been seized, the Claimants could not be part of the Unity Convoy when it (including Anaya Aid’s CEO, Mr Tahir) left Dover.

The retention authorised by Superintendent Barnes had to be reviewed within 72 hours (see CTSA 2015 Schedule 1 paragraph 6(1)(b)) by an officer of at least Chief Superintendent rank. In the present case that review was carried out by Detective Chief Superintendent Alexis Boon of the Metropolitan Police. The police powers of retention could then continue for 14 days - CTSA 2015 Schedule 1 paragraph 5(2). One of the grounds for retention is that the SSHD is considering whether to cancel the person’s passport – CTSA 2015 Schedule 1 paragraph 5(1)(a).

There is power for an officer of at least Superintendent rank to apply for the 14 day retention period to be extended. In these cases such applications were made by Detective Superintendent Crossley of the Metropolitan Police Counter-Terrorism command who swore undated informations in relation to each of the Claimants. The applications were heard at Westminster Magistrates’ Court before the Chief Magistrate, Ms Emma Arbuthnott. The Claimants were on notice and were represented at the hearing which took place on 3^rd May 2017. However, part of the hearing took place in their absence. The applications were successful and the Chief Magistrate granted the police a 30 day extension period, which was the maximum allowed under CTSA 2015 Schedule 1 paragraph 8(6).

The Claimants instructed Birnberg Peirce, solicitors (‘Birnbergs’). Birnbergs wrote to the Metropolitan Police on behalf of B on 11^th May 2017 and on behalf of ND on 16^th May 2017. At that stage they had only limited information as to the reasons that the passports had been seized.

On behalf of B, Birnbergs said that he had volunteered to be a driver for Anaya Aid as part of the Unity Convoy. He had taken part in previous such convoys including in 2013 when he had participated in a convoy organised by another charity, Hand in Hand, which had taken aid to the Turkish/Syrian border for onward transportation to Syria. Birnbergs said that B had never been to Syria and had no interest in going there. He had family in Algeria (from where he originally came). His wife was from Morocco and they travelled frequently to visit their respective families in North Africa. He had been asked in his interviews about his views on Syria and the Assad regime and had answered all questions. In those interviews he had also said that he was carrying his Algerian passport, as well as his British passport because his father, who lived in Algeria, was elderly and unwell. Birnbergs said that he always carried his Algerian passport in case his father became seriously unwell and B needed to travel to see him at short notice. The possible need to buy a ticket for Algeria was also why he had been carrying £400. He had not booked accommodation because the members of the convoy expected to sleep in their vehicles or by the road. B had taken a sleeping bag and mat for that reason. He had said that no return flight had been booked because they were uncertain as to precisely when they would arrive in Bulgaria. Birnbergs said that he had given this explanation to the officers who interviewed him and had shown them a letter from the CEO of Anaya Aid dated 23^rd April 2017 which explained that volunteers should carry no more than £250 for their personal expenditure including flight home. The solicitors added that only a handful of volunteers had booked return flights. The solicitors also spoke of the adverse impact on B of his passport’s retention - his travels to Algeria and Morocco were impeded in consequence. Birnbergs denied that B intended to travel to Syria for terrorist purposes. They said that B would be prepared to allow the police to continue to retain his passport on a voluntary basis if more time was needed for the police investigation. They asked that their representations be passed to the SSHD in the event that she was considering cancellation of the passport.

On behalf of ND, Birnbergs said that he was of Moroccan heritage, but he and his wife were both British nationals. They had 6 children. Birnbergs repeated many of the points already made on B’s behalf regarding the nature of, and arrangements for, the Unity Convoy. ND had also had previous experience of helping on aid convoys. In 2013 he had taken aid to the Kilis refugee camp in Turkey. He had taken his vehicle to the camp, stayed a few hours and then left to join his family on holiday in Dubai. ND had given the same explanation for not having a return ticket as B. He had been carrying about £600 in Euros to meet expenses on the trip. ND had not been carrying a personal mobile phone because he had been apprehensive about incurring roaming charges and because, on a previous foreign trip, he had had his mobile phone seized for 3 days and that had been very inconvenient. It was incorrect of D.S. Crossley to say he had had no personal effects with him: he had cash, a debit card, his passport and driving licence, a rucksack with spare clothes and a sleeping bag. Birnbergs said that the cancellation of ND’s passport would adversely affect him: it would prevent him travelling to Morocco where his wife’s family lived and where her father was unwell. It was incorrect to say that he had intended to travel to Syria for terrorism related purposes. They said, ‘Our client has never been to Syria and has no interest in going to Syria.’ The allegation that he intended to go to Syria for terrorist purposes had caused him great distress. He had spent the night following the court hearing on 3^rd May 2017 in a psychiatric ward. On ND’s behalf Birnbergs made the same offer as they had in relation to B i.e. to permit the police voluntarily to continue to retain his passport if they needed longer for their investigations.

As I have said, the Claimants’ British passports were cancelled by the Security Minister on behalf of the SSHD on 24^th May 2017. At that stage, the reasons given were as follows:

As I have said, the procedure under JSA 2013 s.8 was completed and further disclosure to the Claimants took place in about April 2018. Notably, this included a gist of the Home Office submissions to the Minister. Each was dated 22^nd May 2017. In both cases the Minister was advised about the criteria for exercising this Royal Prerogative power (see further below).

In B’s case the recommendation was that his British passport should be cancelled. The letter from Birnbergs on B’s behalf was attached and summarised, but the Minister was told that the recommendation was maintained nonetheless. In summary the following points were made.

B was also provided with redacted notes of interviews under the Terrorism Act 2000 Schedule 7 on 24^th April 2017, 7^th September 2013, 10^th April 2015 and 24^th January 2016.

In ND’s case two options were recommended to the Minister, namely

The Minister was told that ND was the West London branch manager of Anaya Aid and he was given the same information about the charity as in the briefing for B.

The Minister was told that

The letters of 24^th May 2017 cancelling the Claimants’ passports both said,

The source of the power to cancel British passports was reviewed by the Court of Appeal in R (XH) v Secretary of State for the Home Department [2018] QB 355, [2015] EWCA Civ 41 (‘XH v SSHD’). It is an example of the exercise of the Royal Prerogative. The Court of Appeal also held that in this respect, the Royal Prerogative had not been displaced by statute, in particular the Terrorist Prevention and Investigation Measures Act 2011 (‘TPIMA 2011’) - see XH v SSHD [73]-[106].

On 25^th April 2013 the then Home Secretary made a written ministerial statement (published in Hansard HC Debates vol 561 cols 68ws-70ws) and which is set out in XH v SSHD at [32]. The passages which are particularly important for the present case include the following (references to the withdrawal of a passport are to, or include, its cancellation),

Where in the last part of that quotation, the statement referred to a person’s ‘suspected’ activities, Ms Lieven QC for the SSHD accepted that this should be understood as meaning ‘reasonably suspected’.

Although the Royal Prerogative in this respect has not been displaced by domestic legislation, its exercise must be consistent with EU law. Of particular relevance is the EU Directive 2004/38/EC (known as the ‘Citizens’ Directive’).

Recital (2) to the Directive says,

Article 4(1) of the Directive confers a right on all Union citizens ‘with a valid identity card or passport’ to leave the territory of a Member State to travel to another Member State. Article 4(3) requires Member States ‘acting in accordance with their laws [to] issue to their own nationals, and renew, an identity card or passport stating their nationality.’

These rights, however, may be restricted. Article 27 sets out ‘General Principles’ and says,

Article 30 of the Directive concerns ‘Notification of Decisions’ and says,

Article 31 concerns ‘Procedural Safeguards’ and says,

On the prompting of the Special Advocates, further material was put into open after the hearing. This concerned two matters.

First, a more detailed gist was disclosed of the internal Home Office Guidance in relation to issuing, withdrawing and refusing passports. I set out this gist in an Annex to this judgment.

Secondly, information was provided of the reviews that had taken place in the case of B and ND. In summary that had been as follows:

On 13^th July 2018 Birnbergs wrote to me. Their letter included the following,

In view of this I asked Birnbergs to clarify whether the Claimants were seeking to amend the Claim Form so as to challenge additionally (a) the decisions not to refer the matters to the Minister in August and/or October and/or November 2017 and / or not to conduct some form of review after 6 months.

On 24^th July 2018 Birnbergs confirmed that the Claimants were not applying to amend the Claim Forms and were happy for me to decide the case on the material presently before the Court.

In accordance with CPR r.82.17, an earlier draft of this judgment and a draft of the proposed Closed judgment were provided to the SSHD and to the Special Advocates. I received submissions from the Special Advocates that certain parts of the draft Closed judgment could be made open. After reviewing these submissions and those in response from the SSHD, certain additional passages are now included in this Open judgment.

Mr Squires QC and Ms Christie on the Claimants’ behalf seek to advance 4 grounds of challenge. As I have said, they have permission to rely on the first two; they seek permission to rely on the 3^rd and 4^th.

The need for cancellation of a passport to be necessary and proportionate derives from both domestic and European law. The Written Ministerial Statement had said that the Royal Prerogative in this regard would be used ‘sparingly’ and its use ‘must be necessary and proportionate’. In XH v SSHD the Court of Appeal recognised (at [108]) that, while cancellation of a passport was not an absolute prohibition on travel outside the UK, it was, and was intended to be, a substantial interference with a British Citizen’s freedom of movement. Since that includes freedom to travel to other Member States, it impinges on fundamental rights under the Citizen’s Directive. As the Court of Appeal said at [116] of XH v SSHD,

As already explained, Article 27(2) requires that any restriction based on public security must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned. That conduct must represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.’ None of this is disputed by the SSHD.

As for the role of the Court, I have quoted Article 31 of the Citizen’s Directive from which it can be seen that Article 31(3) provides that,

In XH v SSHD the Claimant argued that Article 31(3) of the Citizens Directive when read in conjunction with Article 47 of the Charter required the reviewing court to include a process of fact finding. The Court of Appeal rejected that argument at [135] – [147]. It said, for instance at [137],

Mr Squires argued that a different approach was required by the decision of the House of Lords in SSHD v Rehman [2003] 1 AC 153. In that case, he submitted, a distinction had been drawn between matters of past fact (which had to be proved to the ordinary civil standard) and an assessment of future risk (to which the civil standard of proof was inappropriate) – see Lord Slynn at [22]-[23], Lord Steyn at [29], and Lord Hoffman at [48]. In this case, the SSHD had to consider, for instance, whether B had travelled to Syria in 2013 and engaged in terrorism-related activity: that was a fact which was either true or not. Furthermore, it was central to the SSHD’s case that in April 2017 both ND and B had intended to travel beyond Bulgaria to Syria and there engage in terrorism-related activity. It was axiomatic that a man’s intention was also a question of fact – as much a fact as the state of his digestion in the well-known phrase of Bowen LJ in Edgington v Fitzmaurice (1884) 29 Ch.D. 459 C.A. at 483.

However, Rehman was dealing with a different statutory scenario. The matter reached the House of Lords on appeal from the Court of Appeal which in turn had heard an appeal from the Special Immigration Appeals Commission (‘SIAC’). SIAC’s jurisdiction was appellate – see Special Immigration Appeals Commission Act 1997 s.2(1). The purpose of the 1997 Act was to create a procedure (now replicated elsewhere) to deal with deportations which related to national security and with the appointment of special advocates and the use of open and closed sessions. But the nature of SIAC’s task was modelled on the task which an adjudicator (now the First-tier Tribunal) would perform in an immigration appeal that did not concern national security. By contrast, my task is to be performed in the framework of a judicial review, not an appeal. In any event, as Ms Lieven submitted, the Secretary of State’s task is forward-looking and requires her to assess the threat which the Claimants might pose if they were allowed to continue to have their passports.

The open evidence before me from the Defendant consists of the disclosure provided to the Claimants and the statements of Detective Superintendent Crossley to the Westminster Magistrates Court. The disclosure included gists of officers’ notes of various port stops and a gist of the advice provided by the Home Office to the Security Minister on 22^nd May 2017. Mr Squires notes that there is no witness statement from any of the officials who advised the Security Minister, nor from the Minister himself. The Claimants themselves have each provided a number of statements and there are three statements from Mr Tahir of Anaya Aid. I have, of course, received further Closed evidence.

Mr Squires’ submits that no reliance should be placed on the assertions that police officers found the Claimants’ accounts to be ‘unconvincing’:

Further, in ND’s case the other reasons relied upon (in Open) could not amount to compelling evidence requiring the cancellation of ND’s passport.

So far as B was concerned, Mr Squires likewise submitted that there was not a strong and compelling justification for the cancellation of his passport.

In relation to both Claimants, Mr Squires also submitted that the SSHD had been wrong to believe that the police officers who conducted the port stops had ‘given evidence on oath’. They had not. Detective Superintendent Crossley had sworn informations in support of his applications for extensions of the retention of the passports of B and ND, but he had not been one of the examining port officers.

D.S. Crossley had also made errors of fact:

Ms Lieven submitted that the SSHD was entitled to come to the conclusions she did.

As for the matters relied on by B, Ms Lieven submitted:

In each case the Minister endorsed the views of Home Office officials that each Appellant was a person whose past, present or future activities actual or suspected was so undesirable that his passport should be cancelled. I have subjected the factual foundation for the Security Minister’s conclusions to the intense investigation which the law requires, bearing in mind the national security element, but also the impact of cancellation of passports on the Claimants’ private lives. In my judgment, there was sufficient to support those conclusions. I also agree with Ms Lieven’s response to Ground 1 for the reasons that she gives. The cancellation of each Claimant’s passport was necessary and proportionate.

In the Closed session there was argument regarding certain common points to B and ND. Although the argument took place in Closed, the SSHD has agreed that, in the form that appears below, there is no national security objection to these passages being included in this Open judgment.

In both cases, Ms Lieven sought to rely on additional documents to those which had formed the basis for the original briefings. In some cases, these were documents which had been produced to the Special Advocates as part of the exculpatory reviews and pursuant to the duty of candour which applies in any judicial review. In other cases they were additional documents which the SSHD had decided, in the course of preparing the litigation, fortified her decisions. Both teams of Special Advocates argued that it was not open to the SSHD to do this and she should rely exclusively on those documents which had actually informed the original briefings.

In support of her position, Ms Lieven relied on R (Secretary of State for the Home Department) v Special Immigration Appeals Commission (‘the SIAC case’). This was a judicial review of decisions of SIAC as to the disclosure obligations of the SSHD when responding to statutory judicial reviews of the refusal to grant naturalisation and, in one case, to exclude the applicant from the United Kingdom. The open judgment of the Divisional Court is reported at [2015] 1 WLR 4799. I was referred to this and also the Closed judgment of the same date (18^th March 2015).

What had prompted the difficulty in the SIAC case was that the decisions in question had been taken some years previously and there was not the paper trail which allowed it to be said definitively which documents had been relied upon - see SIAC open judgment at [36]. In those circumstances, the Divisional Court said that disclosure should include (apart from exculpatory documents) those documents on which the SSHD wished to rely and which were said to be sufficient to resist the attack on the legality of the decisions. That is a different situation than prevails in the present challenges where it is possible to identify which documents were relied upon for each of the assessments in the briefings to the SSHD. In another respect the situation in one of the SIAC cases did parallel the present one: exclusion decisions had had to be taken by the SSHD personally – see SIAC open judgment at [14].

In the Open SIAC judgment the Court said at [37],

In the Closed judgment there are paragraphs to like effect.

Although it is possible in the present cases to identify the documents relied upon in the assessments in the present cases, it seems to me that there is no objection in principle to the SSHD relying on additional documents subject to two provisos: the first is that the documents in question pre-dated the Minister’s decision (i.e. 24^th May 2017); the second is that the documents are relied upon in support of one or more of the assessments which were included in the briefing to the Minister. Since the briefings were not accompanied by any of the underlying material, that approach is consistent with a recognition that what is being reviewed is the decision of the Security Minister. The conditions which I have set out are also consistent with the need to avoid retrospective justification for decisions which would otherwise be vulnerable to challenge (although I would accept that if there is a sufficient foundation for the assertion in material which ante-dated the decision, it may be further bolstered by material which post-dates it). In theory, even post-decision documents or intelligence distinct from the assessments which underlay the briefings could be relevant to any remedy (assuming the Claimants were to succeed in showing illegality) since a quashing decision will now be refused if the decision-maker would be ‘highly likely’ to make the same decision if the matter was remitted to her – see Senior Courts Act 1981 s.31(2A). That provision came into effect shortly after the decision in the SIAC case, but, as the above citations show, a similar principle operated at common law.

Ms Lieven referred me to the Written Ministerial Statement which had said that the exercise of the Royal Prerogative could be prompted where ‘a person whose, past, present or proposed activities actual or suspected are believed by the Home Secretary to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest.’ She observed that suspected activities would be sufficient. She accepted that ‘suspected’ should be understood as meaning ‘reasonably suspected.’

The Special Advocates responded that whatever may be the case in other circumstances, what was said against the present Claimants was that they did intend to travel to Syria in April 2017 and that they were involved in terrorism-related activity. They submitted that it was not, on the facts of the present cases, open to the SSHD to support the decisions by reference to reasonable grounds to suspect.

I do not agree with the Special Advocates. The Home Office briefing said (and this part has been disclosed) after quoting from this part of the Ministerial Statement,

Thus, the assessments which followed in each of B and ND’s cases was to support the omnibus proposition that that individual’s past, present or proposed activities, actual or suspected were so undesirable that there was a national security need to disrupt their travel.

Ms Mountfield and Mr Mertens argued that mere suspicion of past behaviour could not be sufficient to justify a substantial interference with the important rights protected by the Citizens Directive. I do not agree. I do not read Article 27(2) of the Directive and its requirement that measures taken on grounds of public policy or public security must be based exclusively on the ‘personal conduct’ of the individual as precluding actions based on reasonable suspicion as to such conduct. As the Court of Appeal said in XH v SSHD at [113] the Secretary of State’s task is essentially one of evaluating future risk. The Special Advocates in the present case draw my attention to what the Court observed in XH v SSHD at [20], namely,

My view as to Ground 1 is reinforced by the closed evidence.

Mr Squires submits that, as part of the general public law duty to treat individuals fairly, they should normally be given the opportunity to make representations in advance of any decision that might impinge on them adversely - see for instance Bank Mellat v H.M. Treasury (No.2) [2014] AC 700 (‘Bank Mellat’) per Lord Sumption at [29]. Secondly, if the opportunity is to be meaningful, the individual needs to know the case that he is required to meet. As Lord Reed said in R (Bourgass and Hussain) v Secretary of State for Justice [2016] AC 384 at [100],

Mr Squires further argued that these duties applied in advance of the decision in question being taken. It was not sufficient for the individual to be able to argue after the event that the decision should be cancelled or revoked – see for instance R (SP) v Secretary of State for the Home Department [2004] EWCA Civ 1750 per Hooper LJ at [57] and [58].

Mr Squires accepted that these principles were not absolute. They could not prevail if giving the individual concerned an opportunity to make representations would also create a risk of him taking evasive action to defeat or frustrate the very object of the power. Nor could the individual insist on advance disclosure of information where there was a good national security reason to keep it secret see Bank Mellat (above) at [31].

In XH v SSHD the Court of Appeal rejected an argument that the SSHD should have given the Claimant advance notice of the matters to be raised against him and which it was thought would justify cancellation of the passport – see XH v SSHD at [155]. However, Mr Squires submitted, the decision in that case was made ‘in the particular circumstances of the case’ (ibid). He argues that neither of the Bank Mellat qualifications could apply in the present cases. The police already had possession of the Claimants’ passports and therefore prior notice that the SSHD was contemplating cancelling them could not have led to the Claimants frustrating that objective. Indeed the Claimants were expressly told at the hearing on 3^rd May 2017 that the SSHD was contemplating cancelling their passports. Nor could the fear of disclosing material prejudicial to national security justify failing to give the Claimants advance warning of the case against them. In Bank Mellat itself, Lord Sumption observed that the Treasury in the course of the proceedings had been able to disclose a gist of the closed material which had been relied upon. Lord Sumption had said (at [31]),

Mr Squires acknowledged that Birnbergs had made representations on behalf of both B and ND, but they had then had only extremely scanty information as to why the Claimants’ passports had been seized and they did not have the disclosure with which they had been later provided and with which they could have made much better informed representations.

Mr Squires also submitted that it was no answer for the SSHD to argue that the claims are still resisted and the SSHD still considers it right to cancel the Claimants’ passports despite everything which they have said in their witness statements and everything which has been said on their behalf. Mr Squires comments that there is no witness statement from the SSHD to this effect. Furthermore, the decisions were taken by the Security Minister personally and the Court should be cautious about assuming that the same decision would have been made absent error of law: see SSHD v AT and AW [2009] EWHC 512 (Admin) at [19].

Ms Lieven submitted that ground 2 could not be sustained: XH v SSHD had rejected the same argument. Bank Mellat v H.M. Treasury had been cited to the Court of Appeal.

The Claimants could (and did) make representations through their solicitors in advance of the decisions to cancel their passports. The Claimants did not know as much about the SSHD’s case as they did now. However, the process of deciding what they could be told consistently with the needs of national security (or what they were entitled to be told in any event) was lengthy. The Claimants’ passports could only be retained for a maximum of 30 days from the time they were first seized and that period was imminently due to expire when the Security Minister took the cancellation decisions. While the Claimants had offered to allow the police or SSHD to retain them for a longer period, it would be unsatisfactory to rely on the Claimants’ voluntary co-operation.

Furthermore, the Home Office guidance referred to the possibilities of asking the SSHD for a review of a passport cancellation or of asking for a new passport to be issued. A passport cancellation was not, therefore, comparable to the type of decision which was irremediable if wrong. An example of a decision of the latter kind was deportation to a country where the individual alleged that he had a well-founded fear of persecution or of ill-treatment contrary to Article 3 of the ECHR. In those circumstances, a process of judicial review would only be an effective remedy if it was flexible enough to permit further information or evidence to be put before the decision-maker and, if the decision was still adverse, for the court to take account of that further material in deciding whether the decision to deport (and to maintain that decision) were lawful: see R v SSHD ex parte Turgut [2000] HRLR 337; and Cases C-482/01 & C-493/01 Orphanopoulos and others v Land Baden-Wurttemberg [2005] 1 CMLR 18.

In XH v SSHD the Court of Appeal had also rejected an argument then advanced by the Appellant that prior notification of the proposed reasons for cancellation of a passport was required by the Charter of Fundamental Rights of the European Union Article 41 – see [154] in which the Court of Appeal endorsed views that I had previously expressed in R (AZ) v SSHD [2016] 4 WLR 12 at [46]. Ms Lieven submitted that the same principles applied in the present context.

I agree with Ms Lieven that Ground 2 cannot be sustained. In advance of their passports being cancelled, the Claimants had the opportunity to make representations as to why that course should not be taken. The Claimants took that opportunity and made representations which were taken into account. The premise of ground 2 has to be that the SSHD was, in addition, legally obliged to give them advance notice of the basis on which she was minded to cancel their passports. However, the very same argument was considered and rejected by the Court of Appeal in XH v SSHD. Whatever the general principles of public law may require, it is well established that they are qualified. It is the case that the passports were initially seized by the police and were being retained by them at the time the cancellation decisions were taken. However, the process of resolving just what information could be, or had to be disclosed to the Claimants was a lengthy one. It could not practically have been completed before the maximum period for police retention of the passports expired. I agree with Ms Lieven that it is no answer to say that the Claimants were willing to allow their passports to be voluntarily retained by the police beyond those time limits. In matters such as this, it is unsatisfactory to rely on continued voluntary co-operation which could be withdrawn at any time. I might add that the process of disclosure critically depended on the involvement of the Special Advocates, but their appointment is dependent on the initiation of litigation (and, pursuant to Justice and Security Act 2013 s.6, a declaration that closed material procedure may be adopted) which itself assumes that the decisions to cancel have already been taken.

In these circumstances, the absence of a witness statement from the Security Minister is of no account.

In Closed submissions, Mr McCullough submitted that very little of the contested s.8 arguments had been resolved in the Claimants’ favour. The great bulk of what had been disclosed was as a result of the SSHD agreeing that documents or a gist of them could be made open. That, he submitted, added force to the open argument since it had not been the time consuming process which had been submitted by the SSHD. Ms Mountfield adopted Mr McCullough’s argument.

I agree with Ms Lieven’s response that it was a lengthy business even for the SSHD to get to the stage of agreeing disclosures or gists. The absence of any need for a court ruling could have been because the process of negotiation between the Special Advocates and the SSHD’s team had been productive. The SSHD was entitled to regard the voluntary agreement to the retention of the passports as an unsatisfactory alternative. That agreement could have been terminated at any time. If it had been brought to an end and if the Claimants had asked for the return of their passports, the SSHD could, in theory at least, have then exercised the Royal Prerogative to cancel them. But the difficulties attendant on a rushed decision by the Minister personally at a time of the Claimants’ choosing justify Ms Lieven’s characterisation of this possibility as impracticable. Furthermore, as I say above, Special Advocates are only appointed once litigation is underway and the Court has approved the use of Closed material procedure.

The Claimants’ Ground 2 challenge is not assisted by the Closed material. On the contrary it assists the SSHD to resist the challenge.

The decisions to cancel these passports were not taken by officials but by the Security Minister personally. In those circumstances, it is submitted, the officials are obliged to prepare their reports or briefings in a fair and balanced way - see R (Khatib) v Secretary of State for Justice [2015] EWHC 606 (Admin), Elias LJ at [56] and Simon J. at [78]. The briefings ought not to present exclusively the reasons why the Claimants’ passports should be cancelled: they should also put forward the reasons pointing the other way – see R (Hindawi) v Secretary of State for Justice [2011] EWHC 830 (Admin) at [73]-[74]. The principle was not controversial.

Mr Squires submitted that this principle was not observed in the present cases.

Thus, he argues, in ND’s case:

In B’s case, Mr Squires submitted, the briefing was also deficient in that:

Ms Lieven argued that there was nothing unfair or unbalanced in either briefing.

I agree with Ms Lieven.

As far as ND was concerned, the inference that ND was saying he had to be back in England on Thursday 27^th April was a reasonable one to make. It may not have been what ND intended to convey, but the officials were entitled to work on the basis that this was his meaning. In those circumstances, the absence of information as to how and from where he intended to return (within a few days) were relevant matters. ND’s views as to the conflict in Syria were, of course, summarised. The summary was not unfair or unbalanced. The officers had been unconvinced by his account, even if they did not use that expression: they would not otherwise have taken steps to retain the passports which had been initially seized. The issue for the Minister was whether the Claimants’ passports should be cancelled. For the report to be fair and balanced in relation to those issues, it was not incumbent on the officials to explain their views in relation to anyone else. In the case of each Claimant, the submission to the Minister was self-contained. Furthermore, stepping back from the detailed points made by Mr Squires, I do not agree that the briefing was unfair or unbalanced.

I reject this ground in relation to B for very similar reasons. In relation to both Claimants, it has to be remembered that the officials who compiled the briefing had to provide a fair and balanced report to the Minister, but within those parameters, they necessarily had latitude and discretion as to what should be included or how it should be framed. I have considered both the detail of Mr Squires’ submissions and the overall character of the briefing. In my judgment in relation to neither Claimant is this ground reasonably arguable. I therefore refuse permission to the Claimants to advance it.

Despite the submissions which I received from the Special Advocates in Closed, my view remained the same that Ground 3 was not reasonably arguable.

I can take this briefly. Mr Squires submitted that the power of the Executive to control a citizen’s exit from the UK is now governed by statute and, in particular, by the TPIMA 2011. In those circumstances, the former Royal Prerogative has been displaced and cannot be exercised lawfully. He recognised that precisely this argument had been rejected in XH v SSHD at [73] – [106]. Mr Squires wished to preserve the possibility of appealing to the Supreme Court.

My task in regard to ground 4 is to decide whether the ground is reasonably arguable. In view of the recent decision in XH v SSHD, which is binding on me, the answer is plain. It is not. I refuse the Claimants permission to argue ground 4.

It follows that I refuse permission to argue Grounds 3 and 4. Grounds 1 and 2 are not made out and the claim is dismissed.