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B & Anor v Secretary of State for the Home Department

[2018] EWHC 2651 (Admin)

Neutral Citation Number: [2018] EWHC 2651 (Admin)
Case No: CO/3916/2017 & CO/3906/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/10/2018

Before:

Mr Justice Nicol

Between :

(1) B

(2) ND

Claimants

- and –

Secretary of State for the Home Department

Defendant

-and-

Commissioner of Police for the Metropolis

Interested Party

Dan Squires QC and Ayesha Christie (instructed by Birnberg Peirce) for the Claimants

Nathalie Lieven QC and David Blundell (instructed by Government Legal Department) for the Defendant

Helen Mountfield QC and Paul Mertens (instructed by Special Advocates Support Office) Special Advocates for B

Angus McCullough QC and Jennifer Carter Manning (instructed by Special Advocates Support Office) Special Advocates for ND

Hearing dates: 17th, 18th, 21st & 24th May 2018

Judgment Approved

Mr Justice Nicol :

1.

B and ND, the Claimants in this matter, are British Citizens and they were both the holders of British passports. On 24th 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 27th October 2017 and by Ouseley J. on 19th January 2018 in relation to ND. The two cases have not been consolidated but on 30th January 2018 Supperstone J. directed that that they be heard together.

2.

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.

3.

Following this exercise, the SSHD made further disclosures on 20th 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 3rd and 4th grounds of challenge.

The Factual Background

4.

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.

5.

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.

6.

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.

7.

The convoy reached Dover on 24th 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.

8.

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.

9.

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 24th April 2017. Det. Supt. Barnes is from the Thames Valley Police which, I understand, operates a joint counter-terrorism unit with the Kent Police

10.

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.

11.

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).

12.

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 3rd 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).

13.

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

i)

The standard form notices of travel document retention had said that ‘a summary of reasons for retaining your travel documents’ was enclosed, but, it seems, no such summary was provided.

ii)

The Claimants had not been provided with the officers’ notes of the interviews, although to some extent the Claimants were able to recall the questions they had been asked and their answers.

iii)

They had Detective Superintendent Crossley’s statements in support of his applications for an extension of the retention periods. In B’s case it was said that his short and non-committal answers coupled with his lack of return tickets that had led to the belief that he was travelling to Syria for the purpose of terrorism related activity. In ND’s case it was said that he had expressed the view that President Assad should go and that the Syrian conflict was a civil war and not a war amongst Muslims. He had described ISIS as ‘dogs of the hellfire’. The port officer who had conducted the Schedule 7 interview was of the opinion that his answers given in interview, coupled with his lack of return travel tickets and no mobile phone or personal effects had led to the belief that he was attempting to travel to Syria for the purpose of terrorism or terrorist activity.

iv)

They had written to the Metropolitan Police on 3rd May 2017 to ask for a gist or summary of the withheld reasons for the retention of the passports, but were told the following day that no further information could be provided.

14.

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 23rd 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.

15.

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 3rd 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.

16.

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

i)

In B’s case it was considered not to be in the public interest for him to have a passport. He had travelled to Syria in March 2013 where it was assessed he had provided support to Al-Qaeda-affiliated Islamist extremist individuals. When he had been stopped and questioned on 23rd April 2017 his responses were unconvincing and he was assessed to have deliberately disguised his intentions for travel and that his intention had been to travel onwards from Bulgaria to Syria to engage in further terrorism-related activities in support of Al-Qaeda affiliated groups. His activities in Syria would present a risk to UK national security. Accordingly he was considered to be someone whose past, present or proposed activities, actual or suspected were so undesirable that the continued enjoyment of passport facilities would be contrary to the public interest. He was told that he could ask for a further review or apply for a passport at a later date.

ii)

In ND’s case the decision letter followed the same pattern. He was also told that his answers had been unconvincing and that it was assessed that he, too, intended to travel onwards from Bulgaria to Syria to engage in terrorism-related activities in support of Al-Qaeda affiliated groups.

17.

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 22nd May 2017. In both cases the Minister was advised about the criteria for exercising this Royal Prerogative power (see further below).

18.

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.

i)

B was assessed to have travelled to Syria in March 2013 and engaged in terrorism-related activities in support of AQ-affiliated groups in Syria. It was noted that B had repeatedly asserted that he had not gone into Syria, but only as far as the Turkish Syrian border. That was not accepted. There was no clear indication of exactly how long he had spent in Syria in 2013: he had left the UK on 2nd March 2013, travelled overland to the Syrian border and by mid-April 2013 was back in the UK.

ii)

When he had been stopped in April 2017 he had been travelling under the auspices of Anaya Aid. The Minister was told ‘It is assessed that Anaya Aid, in addition to genuine charity work, provides material support to AQ-affiliated groups. Anaya Aid is currently under scrutiny by the Charity Commission.’

iii)

B’s answers to questions on that occasion were found to be unconvincing. He had denied knowing the route which the convoy would take (although he had been driving one of the vehicles). He denied knowing what would happen once the convoy arrived in Bulgaria and who would take possession of the vehicles and drive them on to Syria.

iv)

B had both his British and Algerian passports with him, which was viewed as suspicious by the police. It was assessed that that may have been an attempt to disguise any entry into Syria from UK authorities and give him greater flexibility when travelling.

v)

He had said he would fly back to the UK from Bulgaria and would book his ticket once in Bulgaria, but that was not accepted and it was assessed that he intended to travel on to Syria.

vi)

B was an associate of ND who was also present on the convoy and who, it was assessed, also intended to travel on to Syria once the convoy had reached Bulgaria. ND was the West London branch manager of Anaya Aid.

vii)

Because of his involvement with Anaya Aid it was assessed that B was aware of its support to an AQ-affiliated group.

viii)

The officials explained their concerns as to the threat which B would pose to national security if he did travel to Syria for terrorism-related purposes and then returned to the UK. ‘It was assessed that the majority of individuals who travel to Syria to engage in terrorism-related activities with AQ-affiliated groups may undertake military training and engage in fighting. However, the assessed threat to UK national security applies regardless of whether individuals have fulfilled combatant or non-combatant roles; they are, at a minimum, likely to have been radicalised and contributed to the continuance of AQ, and its affiliated groups.’

19.

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

20.

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

i)

Either cancel his British passport, or

ii)

Not cancel his passport on this occasion but disrupt where possible any future attempts at travel using CTSA 2015 Schedule 1.

The Minister was told that cancellation of the passport was the preferred option and that the other alternative was not recommended.

21.

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.

22.

The Minister was told that

i)

It was assessed that ND had been planning to travel on to Syria when he was stopped in April 2017 and, when there, to engage in terrorism-related activity in support of AQ-affiliated groups. As with B, the police who interviewed him had been unconvinced by his reasons for travel.

ii)

The Minister was told that he had avoided discussing Syria only stating that he saw Daesh as ‘dogs of hellfire’. It was assessed that he had avoided the topic to prevent being drawn into debate and to obscure his views on Islamic extremism. It was noted that his opposition to Daesh might be genuine due to his support for an AQ-affiliated group which did oppose Daesh.

iii)

ND had said that he had to return to the UK by 27th April 2017 for a housing issue. However, he had had no details of any travel back to the UK from countries along the convoy’s route and had given no indication of from where he had expected to return.

iv)

Because of his position within Anaya Aid, he was in a good position to use the convoy as cover for terrorism-related purposes. Because of his role within Anaya Aid it was assessed that he was likely to have been aware of its support to AQ-affiliated groups.

v)

ND was an associate of B who was also present on the same convoy and was also assessed to have had an intention to travel on to Syria once the convoy terminated in Bulgaria.

vi)

The Minister was also told that ND had been interviewed in 2016, in the course of which he had described travelling to Syria in late 2013. He had delivered aid to the border town of Kilis from where he had crossed into Syria and spent at least a day. Birnbergs’ letter of representations (which was copied to the Minister and summarised) had made no reference to him going into Syria in 2013 and, indeed, denied that he had ever been to Syria, contrary to what ND had told the police in 2016.

vii)

As with B, it was said that, if following engagement in terrorism-related activities in Syria he returned to the UK he would pose a risk to national security.

The Legal Background

23.

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

‘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 Security Minister on behalf of the Home Secretary considers that it is not in the public interest that you should hold a passport.’

24.

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].

25.

On 25th 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),

‘A decision to … withdraw a passport must be necessary and proportionate.

The decision to … withdraw a passport under the public interest criteria will only be used sparingly. The exercise of this criteria will be subject to careful consideration of a person’s past, present or proposed activities.

For example, 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…

A person may be prevented from benefitting from the possession of a passport if the Home Secretary is satisfied that it is in the public interest to do so. This may be the case 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…’

26.

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’.

27.

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’).

28.

Recital (2) to the Directive says,

‘The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.’

29.

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.’

30.

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

‘(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. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

….’

31.

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

‘(1) The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

(2) The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.

…’

32.

Article 31 concerns ‘Procedural Safeguards’ and says,

’(1) The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against, or seek review of any decisions taken against them on the grounds of public policy, public security or public health.

….

(3) The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28 [Article 28 concerns expulsion decisions and is not relevant in the present context].

…’

Post-hearing events

33.

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

34.

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.

35.

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:

i)

The Pre-Action Protocol (‘PAP’) letter from Birnbergs on behalf of B on 29th June 2017 had prompted a ‘light-touch’ review of the decision to cancel his passport. The Home Office had considered whether the PAP contained any significant new information. It decided that it did not and that, in accordance with the internal Guidance, a full substantive review was not required. An email was sent to the Minister’s Private Office on 9th August 2017 to that effect.

ii)

The PAP letter from Birnbergs on behalf of ND on 31st July 2017 prompted a similar ‘light-touch review’. It, too, led to the conclusion that the PAP had not contained significant new information and in his case as well a full substantive review was not required. An email to this effect was sent to the Minister’s Private Office on 4th August 2017.

iii)

On 5th October 2017 B had applied for a new British passport. That, too, generated a ‘light-touch review’. The Home Office again considered whether the new application contained any significant new information and decided that it did not. It was therefore decided (at the level of officials) that the application should be refused. The Minister’s Private Office was notified of this by an email of 9th November 2017.

36.

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

‘From the additional disclosure now provided the Claimants would support the Special Advocates’ observations in their letter of 19 June 2018 that it cannot be rationally concluded that nothing in the pre-action protocol letter, submissions or Claimants witness statements were ‘new information’ that was sufficiently ‘significant’ to at least trigger a review of the original decision in line with the Defendant’s review guidance. We also concur with the Special Advocates’ observations that in any case it appears the SSHD has breached her own policy by failing to carry out a substantive review of the passport cancellation decisions after 6 months.’

37.

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.

38.

On 24th 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.

39.

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.

The Claimants’ grounds of challenge

40.

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 3rd and 4th.

Ground 1: cancellation of the passports not necessary and proportionate

41.

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,

‘We accept that the fundamental nature of the rights involved in the present case gives rise to a need for a strong justification for any interference.’

And at [118] it said,

‘A compelling justification is required for such interference.’

42.

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.

43.

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,

‘The redress procedures shall allow for an examination of the legality of the decision as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate…’

44.

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],

‘It is possible to examine the facts on which a measure is based without undertaking a primary fact-finding exercise.’

And it added at [147],

‘Conventional judicial review is a flexible remedy which can extend to investigation of the factual basis of a decision, where appropriate, without assuming an independent fact-finding role.’

As Ms Lieven pithily expressed it, the role of the court is fact checking, not fact finding. It was not for me to become a primary fact-finder. I agree with those comments which have the recent endorsement of the Court of Appeal in XH v SSHD. None of the Supreme Court or other decisions cited by Mr Squires shows that approach is wrong.

45.

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.

46.

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.

47.

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 22nd 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.

48.

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

i)

The allegation is unparticularised and subjective.

ii)

He argues that the officers had already been told the Claimants were intending to travel to Syria for terrorism-related purposes and that would have affected their judgments. As the contemporary documentation showed, the passports were seized before the interviews with ND and B began.

iii)

Individuals who are repeatedly stopped and questioned at ports may become disenchanted and impatient as a result.

49.

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.

i)

In addition to the points made above, in ND’s case the officer who questioned ND at Dover in April 2017 did not say that he found the answers ‘unconvincing’ or that he considered that ND was intending to travel to Syria for terrorism-related purposes.

ii)

ND has said in his witness statements that he was implacably opposed to terrorism and extremism. As he also said in his statements, he has been an open and frequent critic of them and has been involved in activities to prevent radicalisation. In any event, the Home Office briefing had insufficiently conveyed his views about the events in Syria. It was not right to say that he had avoided discussing the Syrian conflict.

iii)

There was a factual mistake in the Home Office briefing. ND had said that he intended to return ‘by Thursday’. ND had been interviewed on Monday 24th April. It had been assumed that he was referring to Thursday 27th April, but that was wrong: he had been referring to the Thursday of the following week (i.e. Thursday 4th May 2017).

iv)

There was another mistake in the briefing when it had said that ND ‘gave no indication of where he anticipated returning to the UK from’. As the notes of the police officer who questioned him showed, he had said that he planned returning ‘from Sofia, Bulgaria to the UK.’ Since his appointment in the UK was not until the following week, it was not necessary for him to plan to leave the convoy earlier than its arrival in Sofia.

v)

It was right that ND had not booked a return flight back to the UK, but that said nothing about his intentions. He carried a letter from the CEO of Anaya Aid which had suggested that members of the convoy should not pre-book return flights because the exact date of their arrival in Bulgaria was uncertain. The majority of volunteers followed that advice and did not have return tickets.

vi)

The SSHD had given insufficient information for ND to respond to the allegation that Anaya Aid had provided material support for AQ-affiliated groups or that he was aware of such activity on Anaya Aid’s part. In any event, other supporters of Anaya Aid had been allowed to continue with the Unity Convoy, including Anaya Aid’s CEO, Tahir Malik. Anaya Aid continues to operate. The Charity Commission is investigating regulatory matters and has not suggested that the charity provides support to AQ-affiliated groups.

vii)

ND knew B as a volunteer for Anaya Aid, but they had had only limited contact with each other and neither intended to travel to Syria in April 2017.

viii)

The Home Office briefing had said ND had travelled to Syria in 2013 but did not allege that he had then engaged in terrorism-related activity. ND’s most recent witness statement explained that the Kilis refugee camp, to which he and his son had delivered aid in August 2013, straddled the border between Turkey and Syria. He had briefly visited the Syrian part of the camp on 7th August 2013 and again on the following day. They had left Turkey on 11th August 2013. These journeys were corroborated by stamps in his son’s passport. He explained that when the letter of representations was composed by his solicitor on 16th May 2017, she had asked him if he had ever been to Syria. He had assumed that she meant properly going into Syria and not the few hours that he had spent (still within the refugee camp) in August 2013.

ix)

It is not alleged that ND had engaged in any terrorist-related activity prior to April 2017.

x)

The Unity Convoy was a genuine humanitarian effort. Only 3 of its members had been stopped at Dover. The convoy had continued (with the exception of ND, B and a third person), aid had been delivered and all the volunteers had returned.

xi)

Overall it cannot be said that there was a strong and compelling reason to cancel ND’s passport.

50.

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.

i)

The SSHD was wrong to believe that B had travelled to Syria in March 2013 or that he had then engaged in terrorism-related activity.

a)

The stamps in B’s passport, his flight records, bank statements and phone records showed that B crossed the Greek/Turkish border on 6th March 2013 and caught a flight out again on 11th March 2013 from Istanbul, having purchased his return ticket on 10th March 2013. In his witness statements he has explained that after entering Turkey on 6th March at the border with Greece, he had spent 2 days driving to Reyhanli, close to the Syrian border.

b)

B’s account, submits Mr Squires is detailed, plausible and consistent with his often repeated statements to the police that he did not enter Syria. It means that, even if he was disbelieved about having entered Syria, he could only have been there for a very short time.

ii)

The Home Office briefing wrongly said that B had ‘denied knowing what would happen to the vehicles [in the Unity Convoy] once the convoy arrived in Bulgaria’. As the notes of the police officer showed he had said that, once in Bulgaria, the vehicle would be passed to the charity which would take them on into Syria. It was right that he had not known the names of the contacts of those in Bulgaria, but this was unsurprising given that he was merely one of the volunteer drivers in the convoy. The leader of each group of vehicles would be told the exact route, but not individual drivers.

iii)

There was nothing sinister in B having both his British and his Algerian passports in his possession. He carried both as a matter of course in case he had to visit his family in Algeria at short notice. He had had both passports with him when he had been previously stopped and questioned (or, on one occasion, had explained that his Algerian passport had then recently expired).

iv)

As with ND, the fact that B did not have a return ticket from Bulgaria was readily explained and consistent with advice given to members of the convoy by Anaya Aid.

v)

B’s association with ND was very limited and their contact could not support the assessment that B intended to travel to Syria and engage in terrorism-related activity.

vi)

Overall there was not the necessary strong and compelling evidence to justify the cancellation of B’s passport.

51.

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.

52.

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

i)

He said the Claimants were volunteers with ‘Human Aid’. They were not. They were with Anaya Aid.

ii)

The port officers did not record their belief that ND was attempting to travel to Syria for terrorism-related purposes.

iii)

D.S. Crossley was also wrong to say that ND had no personal effects. The officers recorded that he had a small holdall. In fact, he had a debit card, a credit card clothes for the journey, food, toiletries, and sleeping equipment.

iv)

D.S. Crossley had also noted that B had not booked any hotel accommodation. However, the Unity Convoy had asked each participant to bring tents and sleeping bags because it was expected that they would be sleeping in or near their vehicles during the journey to Bulgaria.

53.

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

i)

While the port officers had not used the expression ‘unconvinced’ that was a fair summary of their assessments. Had the police been satisfied that the Claimants were going only to Bulgaria, the passports which were initially seized would have been returned to them and they would have been allowed to proceed on their way.

ii)

It was fair to say that ND would not be drawn on his attitudes to Syria. A lengthy interview was necessarily summarised. The summary was not unfair.

iii)

ND had said that he had to return for an appointment on ‘Thursday’. He was being interviewed on a Monday. It was reasonable for the police to interpret his comment as referring to the next Thursday and, in those circumstances, it was reasonable for the police to comment on the absence of his arrangements for a return in what would have been a few days’ times.

iv)

ND’s association with B and that B was also considered to be intending to travel to Syria were other relevant facts for the SSHD to consider.

v)

It was also relevant to rely on ND’s equivocation over whether he had visited Syria in 2013. His solicitors’ letter on 16th May 2017 said he had ‘never been to Syria’. That contrasted with what he had said previously to the police. The SSHD did not positively assert that, during this visit, ND engaged in terrorism-related activity, but, even in the absence of such an assertion, a visit to Syria, which was recently denied, was a matter which the SSHD could take into consideration. ND’s explanations and accounts of what took place in 2013 in his witness statements have also been inconsistent.

54.

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

i)

The stamps in B’s passport and the other evidence on which B relied did not show that B had not entered Syria in 2013 and it remained the SSHD’s case that he had done so and, while there had engaged in terrorism-related activity.

ii)

The submission to the Minister did not say that B had been in Syria on that occasion for any particular length of time: there had been nothing incorrect or misleading in the briefing.

55.

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.

56.

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.

SSHD reliance on documents which had not been relied upon for the original briefing

57.

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.

58.

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 (18th March 2015).

59.

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].

60.

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

‘I appreciate that this approach for these cases leads to the criticism of retrospective justification but it is important to appreciate that the only realistic outcome of a successful challenge to any of these decisions, so many years later, will be to require the SSHD to make them afresh. In that event, this material (together with material postdating the decision) would be available to be deployed to justify any new decision. Thus, ultimately, the interested parties are not prejudiced by this course and continued further litigation can be avoided.’

61.

In the Closed judgment there are paragraphs to like effect.

62.

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. 24th 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.

Whether the decisions to cancel the Claimants’ passports can be justified by reference to suspected past or proposed activities

63.

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.’

64.

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.

65.

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,

‘This involves the following considerations: are there sufficient grounds to support an assessment that the individual intends to travel overseas and that there is a national security need to disrupt such travel.’

66.

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.

67.

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,

‘the special advocates confirmed to the Divisional Court that it was their view that there was no properly arguable case which could be presented in the closed part of the proceedings to the effect that the Secretary of State did not have sufficient evidence before her to suspect on objective grounds, according to the relevant legal standards of rationality and proportionality, that XH was indeed involved in Islamic extremism and did indeed intend to travel to Syria to fight as set out in the letter of 3 May 2016.’ [emphasis added]

However, as the emphasised words showed, in that case as well, what was conceded by the Special Advocates concerned the SSHD’s suspicions.

68.

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

Ground 2: Lack of opportunity to make prior representations

69.

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],

‘A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond.’

70.

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].

71.

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].

72.

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 3rd 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]),

‘I cannot see why they should have had any greater difficulty in disclosing before the making of the direction the material that they were quite properly required to disclose afterwards.’

Mr Squires submitted the same could be said in the present case.

73.

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.

74.

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].

75.

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.

76.

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.

77.

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.

78.

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.

79.

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.

80.

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

81.

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.

82.

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.

83.

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

Ground 3: SSHD not provided with a fair and balanced presentation of the facts

84.

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.

85.

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

86.

Thus, he argues, in ND’s case:

i)

The briefing wrongly said that ND had given no indication from where he anticipated returning to the UK. As explained above, he had said that he planned to come back from Sofia.

ii)

The briefing wrongly said that he had an appointment in the UK on 27th April. As explained above, ND had said that he needed to return on ‘Thursday’ and the Home Office officials had wrongly taken this to be 27th April.

iii)

The briefing had incompletely and unfairly summarised his views about the conflict in Syria.

iv)

The briefing wrongly said that the officers conducting the questioning had been ‘unconvinced’ by ND’s reasons for travel. The officers’ report did not say this.

v)

The briefing had not drawn attention to the Anya Aid letter giving details of the journey and the expectation that volunteers would purchase return tickets once they go to Bulgaria.

vi)

The briefing omitted to mention that the CEO of Anaya Aid, Mr Malik, had been allowed to proceed with the convoy even though part of the case against the Claimants was that Anaya Aid provided support to Al-Qaeda affiliated groups.

vii)

The briefing omitted to mention the significant amount of work that ND had done to tackle extremism and prevent radicalisation among young Muslims.

87.

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

i)

It wrongly said that B was unaware of the arrangements once the convoy arrived in Bulgaria.

ii)

It wrongly said that B was unaware of the route the convoy would take. What he had said was that he did not know the exact route.

iii)

The same point is made as in ND’s case concerning the insignificance of B not having a return ticket from Bulgaria.

iv)

The briefing wrongly gave the impression that it was suspicious that B had both his Algerian and his British passport when it would have been apparent from earlier port stops that this was his common practice.

v)

The same point is made about Mr Malik being allowed to proceed.

vi)

The briefing did not mention the absence of evidence that B had any history of expressing support for extremism or terrorism.

88.

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

89.

I agree with Ms Lieven.

90.

As far as ND was concerned, the inference that ND was saying he had to be back in England on Thursday 27th 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.

91.

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.

92.

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

Ground 4: The Use of the Royal Prerogative in this field is unlawful

93.

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.

94.

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.

Conclusion

95.

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.

ANNEX

Gist of Internal Home Office Guidance - Review of a RP decision

1.

There is no process for restoring a passport cancelled under the Royal Prerogative; once a passport is cancelled, that document cannot be restored for use. Individuals are entitled to make representations in any written correspondence in relation to the Royal Prerogative decision. In addition, individuals who have had their British passports removed, or who have been refused a British passport , may write to HMPO to specifically request that the decision is reviewed (alternatively individuals may instruct solicitors to write to HMPO requesting a review of the decision or their solicitors may issue a pre-action protocol letter requesting the decision is reviewed).

2.

Individuals may also choose to submit a fresh application. Individuals should not be encouraged to make a fresh passport application when it is known that the application may be refused under the RP on public interest grounds.

3.

The Home Secretary may also request that a specific case is reviewed after a specific period of time or in specified circumstances.

4.

In review of fresh passport application cases, consideration should be given to whether there is any significant new information concerning that individual and whether any new information provided by the individual is significant. Consideration should then be given to whether a substantive review is appropriate in the individual’s case. This will depend on:

The time which has elapsed since the decision was first made, or

Whether any new significant information has been provided; or

If there has been a substantial change relating to the individual circumstances of the case.

As a general guide, if the individual’s request for a review or a fresh passport application comes within 6 months of the original decision, and no significant new information has been provided, then a substantive review is unlikely to be necessary. In such cases, an official can take the decision to maintain the denial of passport facilities and send a note to the Home Secretary’s private office simply to note.

5.

However, any request for a review or fresh passport application where significant new information is presented should be considered a substantive review and the Home Secretary should be asked to make the decision. The outcome of a substantive review should be treated as a new decision.

6.

If more than 6 months have elapsed since the decision was taken (or last reviewed) then the case should be considered anew. This is regardless of whether any information has been presented or not. The available information should be considered and a new recommendation provided. The consideration can be conducted on papers or meeting can be convened. The approach taken will depend on the individual circumstances of the case. Whether or not the fresh consideration results in a recommendation to maintain the withdrawal / refusal of a passport, the Home Secretary should be asked to make the decision.

7.

If the decision is to maintain the withdrawal / refusal of a passport then the individual will be notified by HMPO, or, if appropriate by Government Legal Department (GLD). If the decision is that a passport should now be granted, HMPO will write to the individual inviting them to apply for a new passport.

8.

The exercise of the RP is an executive action taken by the Home Secretary. As such, it can be subject to judicial review proceedings. HMPO should refer any notice or threat of judicial review proceedings as soon as possible.

Summary- requests for a review of a decision or a new passport application

A substantive review and new decision if:

More than 6 months have elapsed since the original decision; or

Significant new information is available; or

There has been a substantial change relating to the individual circumstances of the case.

Maintaining the original decision without a substantive review if:

Less than 6 months have elapsed since the original decision; and

No significant new information is available.


B & Anor v Secretary of State for the Home Department

[2018] EWHC 2651 (Admin)

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