C3, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs & Ors

The issue to be determined at this stage in these judicial review proceedings is whether Article 6(1) of the ECHR is applicable such that the applicant, C3, together with her children, the Interested Parties, may benefit from the higher standard of disclosure in national security cases as described in Home Secretary v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269 (“AF (No 3)”). The Secretary of State for Foreign, Commonwealth and Development Affairs (“the FCDO”) opposes the application of AF (No 3) to these facts in light of the nature of the claim brought.

C3 is a British national who is said by the Defendant to have travelled from the UK to Syria in order to align with ISIL. She is currently located in Al-Roj camp in North-East Syria under the control of the Democratic Autonomous Administration of North and East Syria (the “DAANES”). Three of C3’s four children are physically present in the same camp (all of her children are British; the two youngest were born in Syria). Her eldest child, AB, was repatriated to the UK in December 2023. He is 17 years old. C3 has family in the UK including her mother, brothers and sisters.

Conditions in the camp are appalling. I have described these in at least two other public judgments, and no repetition is required.

Were C3 and the three children to present themselves at the door of any British Embassy in the region, they – subject to proving their identities - would likely have to be granted emergency travel documents to return to the UK. However, without prejudice to C3’s Ground 2, the practical realities are somewhat different. As I explained in my judgment in C3 v SSFCDA [2022] EWHC 2772 (Admin), C3 and the three children need the help of the FCDO to bring about their physical removal from Al-Roj camp and their return to the UK. The FCDO describes this as “consular assistance”. The DAANES will not permit C3 and the Interested Parties to leave Al-Roj camp without an “official request” from the FCDO.

In August 2024 the Foreign Secretary, acting personally rather than through his department, decided to provide consular assistance to C3 and the three children. In April 2025 he changed his mind. These judicial review proceedings were brought to challenge that decision, and I have been case managing the claim from the outset. In June 2025 the FCDO invited further representations from C3 and all interested parties. These representations have been considered, and in July 2025 the Foreign Secretary decided not to give consular assistance to repatriate C3 and the three children. Both the April and July 2025 decisions form the centre-piece of the current challenge.

The basis of the April and July 2025 refusals is what is assessed to be a current risk to national security. The lawfulness of the refusal decisions made in this case is challenged on public law and ECHR Grounds, including on the basis that it is not open to the FCDO to refuse consular assistance on national security grounds. Regardless of the merits of that argument, I consider that C3 and the three children can say with some force that but for the national security objection they would be given consular assistance. If, putting aside the point of principle I have just mentioned, the national security objection were found in these judicial review proceedings to lack any evidential basis, then the FCDO would have no option but to reconsider the matter; and, in the event of nothing new arising, would (subject to further argument) have to grant consular assistance.

This case has a stark and obvious human dimension. Whatever the current position in relation to C3’s ideological alignment or the lack of it, all her children are blameless. The consequences to the family of upholding the April and July 2025 decisions will mean that, unless something changes and the FCDO’s offer to provide consular assistance to the children alone is accepted, C3 and the three children will remain in this camp indefinitely with serious and obvious personal, emotional and psychological consequences for all the children. There is expert evidence bearing in particular on the physical and mental health of the Interested Parties.

The need for expedition is not disputed, and a “rolled up” hearing has been fixed for 11 and 12 February 2026.

Given that the FCDO seeks to rely on CLOSED material in defence of these judicial review proceedings, on 25 September 2025 I approved a consent order providing that these are proceedings in which a Closed Material Application may be made to the court in accordance with s. 6 of the Justice and Security Act 2013 (“the JSA 2013”).

On 4 November 2025 I approved a further Consent Order under which CLOSED material was served on the Special Advocates and a timetable for the determination of CLOSED issues was laid down. The Closed Material Procedure (“CMP”) therefore applies to these proceedings.

On 18 November 2025 the Interested Parties wrote to the FCDO requesting an OPEN disclosure hearing on the AF (No 3) issue. The FCDO promptly assented to such a course.

I heard OPEN and CLOSED submissions on the AF (No 3) issue. I have written a companion CLOSED judgment covering matters helpfully advanced by the Special Advocates for C3 and the Interested Parties.

Given the proximity of the February 2026 hearing date and the impending intervention of the vacation, the parties will have to forgive me for not setting out all their arguments. However, although this judgment has been produced under some pressure of time, which is no one’s fault, I have given myself sufficient time to reflect on the parties’ submissions.

The AF (No 3) issue cannot be determined in the abstract. Regard must be had to C3’s and the Interested Parties’ Grounds of challenge in these judicial review proceedings.

Many of C3’s Re-amended Grounds (“RASFG”) turn on points of law which do not require any further disclosure in line with AF (No 3). I have in mind Grounds 1 and 7 (viz. procedural fairness), Ground 2 (viz. constitutional right to enter the UK), and Grounds 5, 6 and 8 (viz. Tameside).

Some of C3’s Grounds turn on violation of “fundamental rights”. I am far from convinced that these Grounds (e.g. Grounds 4 and 10) raise an issue under AF (No 3) but in light of other Grounds this matters not.

Ground 3 contends that the FCDO’s failure to repatriate C3 and the three children violates their rights under Article 8 of the ECHR. Ground 9 alleges irrationality, in particular on the basis that substantial new information was required to reverse the August 2024 decision, and that did not exist. The Interested Parties’ sole Ground (I will call this Ground 11) alleges a violation of Article 3 of the ECHR, jurisdiction being conferred on account of CD being a ward of court.

The FCDO’s Detailed Grounds of Defence contest the application of the Convention in these circumstances. I will touch on that issue at the end of this judgment. However, Ms Kate Grange KC for the FCDO did not submit for present purposes that the case being advanced under the rubric of Grounds 3, 9 and 11 is unsustainable. Presumably, therefore, she accepts for present purposes that Article 8 is arguably applicable to this claim because family life is indivisible and, although Camp Al-Roj is outside the territorial scope of the ECHR, AB’s presence in the UK provides the requisite “jurisdictional peg”. The extent to which the FCDO is or may be required to take positive steps to promote family reunification is contestable, although certain obligations may be owed: see Abbas v SSHD [2017] EWCA Civ 1393; [2018] 1 WLR 533, at para 17.

It follows, in my judgment, that the strength of the national security case will in due course have to be considered by this Court in the context of Grounds 3, 9 and 11. Although the familiar constraints on this Court’s role will apply, the effectiveness of C3’s challenge to the national security case will depend, at least in part, on how much disclosure she is given.

The parties have helpfully identified five issues for my determination.

These are: (1) does Article 6 apply to these proceedings? (2) if Article 6 is engaged, is AF (No 3) disclosure required in this case? (3) if Article 6 applies, but the rule in AF (No 3) does not, is further disclosure required in any event? (4) if AF (No 3) disclosure is required, has this requirement been complied with? and (5) when performing the review under s. 7(3) of the JSA 2013, is the Court permitted to consider the impact of the CMP continuing on fairness to the parties to the proceedings?

This OPEN judgment will cover issues (1) and (2). At the start of these proceedings, I indicated to Mr Dan Squires KC on behalf of C3 that I thought that it was premature to consider issue (5) at this stage; and, in any event, I was concerned about whether all OPEN and CLOSED submissions could be accommodated within the existing timetable. Issue (5) will be addressed on the basis of written submissions following a further CLOSED hearing in January.

Three conditions must be satisfied (see QX v Home Secretary [2024] UKSC 26; [2025] AC 995 (“QX”) at para 62) to engage Article 6(1): (1) there must be a legal dispute; (2) a civil right or obligation must be in issue; and (3) the outcome of the dispute must be directly decisive of the right or obligation concerned.

The FCDO do not take issue with (1) and (3). The battleground is (2).

It is also common ground, because it is so well established, that the concept of “civil rights and obligations” in Article 6(1) is not to be construed by reference to the structure of domestic law, but rather has an autonomous Convention meaning: see QX at para 61.

Furthermore, on my understanding of her written and oral submissions, Ms Grange did not dispute that Articles 3 and 8 may be “civil rights” for the purposes of Article 6, depending on the context. Thus, the generality as opposed to the universality of Collins J’s seminal analysis in SSHD v BC and another [2009] EWHC 2927 (Admin); [2010] 1 WLR 1542 was not called into question. The FCDO’s essential argument was that, in order to ascertain whether Article 6 applies in any given circumstance, regard must be had to the nature of the proceedings in question. This is because certain types of proceedings fall outside the scope of Article 6 regardless of whether the decisions at issue may constitute substantial interferences with family life, or whatever.

Mr Squires advanced six propositions. Proposition 1 is that Convention rights are “civil rights”. The generality of that proposition is agreed. Proposition 2 is that where there is a dispute about the existence or scope of a civil right, and the proceedings will be “directly decisive” in relation to that right, Article 6 is engaged: see Regner v Czech Republic [2018] 66 EHRR 9, at para 99. That too is agreed. Proposition 3 is that these proceedings are “directly decisive” of C3’s and her children’s ECHR rights. The way this was developed by Mr Squires in oral argument was that Article 8 in particular imports a positive obligation on the State to repatriate C3 and her three children in certain circumstances, and these circumstances exist here. The only answer to this positive obligation is national security. Mr Squires submitted that there was a dispute about this, and that these proceedings will be dispositive of that dispute. As I have said, Ms Grange did not challenge Proposition 3 at the hearing. Proposition 4 is that the only way Article 6 rights would not be engaged is if the case falls within one of the “excluded categories” which should be envisaged as “residual” and restricted in character. Proposition 5 is that the present case does not fall within any of these excluded categories, and that there is no warrant for extending their scope: something that the ECtHR has not done for 20 years. Finally, Proposition 6 is that if Article 6 does apply, AF (No 3) disclosure is required in the circumstances of the present case.

The issues between the parties centre on Propositions 4-6.

Ms Eleanor Mitchell for the Interested Parties developed cogent and helpful submissions on Propositions 4 and 5 which I will summarise in the following way.

Ms Mitchell submitted that a review of the Strasbourg jurisprudence over the last 40 years demonstrates “a rising tide” of Article 6 encroachment over metaphorical sand which had previously been thought to be outside its scope, being essentially matters of private law: see, for example, Denisov v Ukraine, Application No 76639/11, a decision of the Grand Chamber published on 25 September 2018 (at para 51). The position had now been reached, she submitted, where there were just five categories of case (“the excluded categories”), all being in the nature of cases involving the application of public law as opposed to private law principles, where the ECtHR has held that Article 6 did not apply despite there being other relevant human (and civil) rights in play. The justification for these excluded categories varied across the field and no single, governing principle was discernible. This meant that it was not possible to draw from these various categories any overarching principle based on, for example, the concept of a “hard core of public-authority prerogatives”.

Before taking me to these “excluded categories”, Ms Mitchell invited me to consider Collins J’s decision in BC more closely. Collins J’s main reason for holding that rights such as Articles 8 and 10 of the Convention were “civil rights” for the purposes of Article 6 was that section 6 of the Human Rights Act 1998 had made them so: see In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10; [2002] 2 AC 291, per Lord Nicholls of Birkenhead at para 71, and R (McCann) v Crown Court at Manchester [2002] UKHL 39; [2003] 1 AC 787, per Lord Hope of Craighead at para 79. In the second of these authorities, Ms Mitchell pointed out that the making of ASBO engaged Article 10, and therefore Article 6, even though the Claimant had no right to behave in an anti-social manner. She submitted that there were two questions to be addressed: viz. (1) whether a claimant had a free-standing “civil right” which was directly involved in the decision under challenge, and (2) if not, whether the proceedings were in any event directly decisive of an underlying “civil right”. (I have slightly recast Ms Mitchell’s oral submission). Ms Mitchell submitted that on the facts of McCann the answer to the first question was clearly “no” (there is no right to behave in an anti-social manner), and the answer to the second question was “yes” (the ASBO proceedings were directly dispositive of underlying rights under Articles 10 and 11).

Ms Mitchell’s analysis was helpful in showing that a claimant may have two bites at the metaphorical cherry. When the case of QX comes to be analysed, that point will be made good. What Ms Mitchell was, I think, accepting was that on the facts of the present case, at the first stage of the analysis, C3 and the three children did not have a “civil right” they could invoke. This was because a claim for consular assistance is not a claim which entails the exercise of any “civil right”. Consular assistance is in the nature of being discretionary and is not akin to certain types of State benefits where, for example, the applicant does have an entitlement subject to certain factual preconditions being met. Ms Mitchell’s argument was that the present case engages the second stage of the analysis. Unless the present case falls within one of the “excluded categories”, it must follow that the determination of this judicial review application entails the determination of a “civil right” because it is directly dispositive of Article 8 and Article 3 rights.

Ms Mitchell then turned her attention to the “excluded categories”. It is convenient to consider these at this stage. The first of these exclusions or exceptions is the deportation and exclusion of aliens. This was addressed by the ECtHR in Maaouia v France [2001] 33 EHRR 42. The ECtHR recognised that the deportation decision would have obvious impacts on M. Maaouia’s family life. However, Article 1 of Protocol 7 of the Convention accorded specific safeguards to aliens in the event of their intended expulsion, and:

“37.

The Court therefore considers that by adopting Article 1 of Protocol 7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention.

38.

In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject-matter of the present case, do not concern the determination of a “civil right” for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1).”

In his concurring opinion, Sir Nicholas Bratza went slightly further. He found only “some support” for the conclusion that Article 6(1) did not apply in Article 1 of Protocol 7. He also relied on what he called the “constant case law” of the Commission that was founded on “the substantial discretionary and public law element in such decisions.”

The next “excluded category” is disputes relating to the recruitment, careers and termination of service of civil servants. The scope of this category was considered by the ECtHR in Eskelinen v Finland [2007] 45 EHRR 43. The rationale for this category had been expressed in an earlier case, Pellegrin, in terms of civil servants exercising powers conferred by public law and therefore wielding “a portion of the State’s sovereign power” (para 44):

“The State therefore had a legitimate interest in requiring of these officials a special bond of trust and loyalty.”

In Eskelinen the ECtHR declined an invitation to extend the bounds of this exception.

Ms Mitchell addressed the issue of “political rights”. Historically, these fell outside the scope of Article 6(1), and the ECtHR reiterated that principle in Pierre-Bloch v France (Application No 24194/94, decision published on 21 October 1997). In my view, these rights may be seen as entirely sui generis.

Next, we come to tax proceedings. As the ECtHR explained in Ferrazzini v Italy [2002] 34 EHRR 45, although pecuniary interests are clearly at stake in tax proceedings, obligations owed by the taxpayer to the State are regarded as “belonging exclusively to the realm of public law” (para 25). The ECtHR’s essential reasoning was as follows:

“28 … rights and obligations existing for an individual are not necessarily civil in nature. Thus, political rights and obligations, such as the right to stand for election in the National Assembly, even though in those proceedings the applicant’s pecuniary interests were at stake, are not civil in nature, with the consequence that Article 6(1) does not apply. Neither does that provision apply to disputes between administrative authorities and those of their employees who occupy posts involving participation in the exercise of powers conferred by public law. Similarly, the expulsion of aliens …

29 In the tax field, developments which might have occurred in democratic societies do not, however, affect the fundamental nature of the obligation on individuals or corporations to pay tax. In comparison with the position when the Convention was adopted, those developments have not entailed a further intervention by the State into the “civil” sphere of the individual’s life. The Court considers that tax matters still form part of the hard core of public-authority prerogatives with the public nature of the relationship being predominant …” (emphasis supplied)

The Court also relied on the provisions of Article 1 of Protocol 1 which reserved to States the right to impose laws for securing the payment of tax.

The last of these “excluded categories” concerns restrictions on the reporting of court proceedings. The rationale in cases falling within this category is, as Ms Mitchell put it, “bespoke”, and relates to the public interest in imposing restrictions designed to protect the private rights of victims etc. In any event, Article 6(1) itself contains an express carve-out for reporting of court proceedings.

Ms Mitchell referred to domestic jurisprudence which I will address below.

Turning to the second issue (viz. if Article 6 is engaged, what does AF (No 3) disclosure require in the circumstances of this case?), Ms Mitchell’s short submission was that the consequences are so severe for the Interested Parties in particular that the instant case falls towards the upper end of the spectrum such that a high level of disclosure is required. The present case falls to be contrasted with cases such as Tariq v Home Office [2011] UKSC 35; [2012] 1 AC 452 where the stakes were so much lower.

Ms Grange submitted that the key question here was the correct characterisation of the nature of these judicial review proceedings. Although there may be substantial repercussions for the family, the subject matter of these proceedings is not the determination of a “civil right” but the lawfulness of a decision to refuse consular assistance. Ms Grange relied in this context on the decision of the Court of Appeal in the Guantanamo Bay case (R (oao Abassi) v SSFCA [2002] EWCA Civ 1598; [2003] 3 LRC 297). She also relied on passages in cases such as QX which demonstrate that litigation touching on a right of abode does not entail the determination of a “civil right”, as well as other ECtHR jurisprudence dealing with passports.

As for the “excluded categories”, Ms Grange submitted that the concept of a “hard core of public-authority prerogatives” is a constant theme of the ECtHR jurisprudence and that the present case is an exemplification of that theme. She relied on a number of domestic authorities to make good that submission.

Ms Grange then turned to Issue 2 but only on the premise that she was wrong about Issue 1. Here, she relied on the analysis of the IPT (Singh LJ presiding) in Lee and another v Security Service [2024] 4 All ER 421, and submitted that the instant case falls at the lower end of the relevant spectrum: see, for example, Tariq v Home Office [2011] UKSC 35; [2012] 1 AC 452. The factors she relied on were the non-exercise of a discretion, the fact that the FCDO has no direct control over the camp, the fact that the national security issue can only be reviewed and not appealed on the merits, the fact that the Special Advocates are well-placed to avail C3 and the Interested Parties in CLOSED, and that if full AF (No 3) disclosure were ordered, the FCDO would be put to a very difficult election, analogously with the position in Tariq.

There is no Strasbourg authority directly on point. Accordingly, the quest must be for a principle or principles capable of being drawn from both ECtHR and domestic authority which, in relation to the first of the issues I have to determine, may guide me to the correct answer.

In the context of that first issue, the first matter to be addressed is whether the nature of the decision taken by the FCDO means that Article 6 does not apply because no relevant “civil right” is engaged. C3 and the Interested Parties prefer to describe this issue in the terms of whether the present case falls within an “excluded category”, implying that the burden of persuasion falls on the FCDO to show that it does. The FCDO baulk at this terminology, and submit that the burden falls on C3 and the Interested Parties to demonstrate that the nature of the FCDO’s decision engages Article 6.

In my judgment, it is not particularly helpful to speak in terms of a burden of proof. Nor do I think that the suggested taxonomy of “excluded category” reflects the way in which the tide has moved in Strasbourg in favour of the recognition of rights in the sphere of public law as “civil rights”. It would be surprising, and unprincipled, if the moving forward of the tide has somehow left categories or classes of case which are neatly defined. From my perspective, the first question to be answered is whether it is possible to discern a common, underlying characteristic of the various ECtHR authorities where Article 6 was held not to apply. The second question is whether the present case possesses that characteristic.

I cannot accept Ms Mitchell’s submission that there is no common theme or characteristic. In QX (see below) both the Court of Appeal and the Supreme Court used the label, “hard core of public-authority prerogatives”. I note that was the terminology Mr Squires himself used in argument before the Court of Appeal in QX (see [2023] KB 472, at 478B/C). It was also the analysis of the Privy Council in Imperium Trustees (Jersey) Ltd v Jersey Competent Authority and another [2025] UKPC 28; [2025] 1 WLR 3225, at para 42 (per Lord Lloyd-Jones), although slightly different language was deployed:

“In its case law the ECtHR has recognised that disputes concerning the exercise of certain categories of public authority prerogatives falls outside the scope of Article 6(1). Prominent examples are disputes relating to tax, deportation, political rights and public sector employment. The fact that disputes falling within such a category may incidentally engage other Convention rights will not normally have the effect of bringing the proceedings within the protection of Article 6(1).”

Thus, the issue to be determined is not whether the present case falls four-square within an existing “excluded category” or exception, but whether it possesses features or characteristics which indicate that the Strasbourg Court would hold that Article 6(1) does not apply because the nature of the decision made is the exercise of a public authority prerogative. To be clear: the present case does not fall four-square within an existing “excluded category”, assuming that is the correct approach. The deportation and expulsion of aliens is miles away from the treatment (I use a neutral term) of British citizens. However, it is in my opinion incorrect to state that in order to succeed the FCDO must, therefore, create a new and separate “excluded category”. Strasbourg can only decide the cases that come before it, and a case such as the present is entirely novel. The correct approach, as I have said, involves the application of a broad principle to a new factual pattern, taking into account all the salient features of the case under consideration.

In my view, the following features of the present case, taken together rather than individually, lead me to conclude that it does fall within Lord Lloyd-Jones’ “categories of public authority prerogatives” or the Ferrazzini/QX formulation, “hard core of public-authority prerogatives”. These features, none of which is decisive, are as follows.

First, decisions to provide consular assistance are discretionary and will usually touch on sensitivities pertaining to engagement with foreign powers and other diplomatic matters: see Abbasi, at paras 69 and 99 in particular. Where certain criteria are satisfied, HMG will “consider” coming to the assistance of a British citizen overseas. Although there is an obvious difference between “prerogative” in the Strasbourg sense and the “Royal Prerogative”, and as Abbasi itself recognised the latter is justiciable on standard public law principles, the decision-making at issue here is close to the non-justiciable end of the spectrum.

Some decisions relating to consular assistance do not impinge on family life, personal property or whatever, but others obviously do. In my view, it is the nature of the proceedings which matters and not the strength of any underlying claim to a human right. The approach to consular assistance must be the same in this context regardless of the consequences to the individual.

Secondly, a right of abode is not a civil right, and consular assistance is often linked to the enjoyment of a right of abode. The Supreme Court in QX determined the right of abode issue on various bases. In particular, Lord Reed pointed out that Article 6(1) must be construed in the light of the entire Convention system (para 83). Article 3(2) of Protocol 4 states that no citizen shall be deprived of the right of entry. Lord Reed was accordingly of the view that Article 6(1) did not apply to such a situation because the implication must be that Member States did not intend that proceedings concerning the right of individuals to enter the country of which they are nationals should fall within its scope (para 84).

Thirdly, proceedings to enforce one’s right to a passport or to citizenship do not engage Article 6: see, for example, Smirnov v Russia (App. No. 14085/04, 6 July 2006).

Fourthly, in R (BEL) v Foreign Secretary [2025] EWHC 1970 (Admin), Chamberlain J held that the grant of entry clearance did not impose an obligation on the FCDO to grant consular assistance in order to make that grant effective: see para 101.

Overall, I have no doubt but that the Strasbourg Court, if confronted with the unusual facts of the instant case, would hold that a claim for consular assistance is almost a paradigm case of the exercise of a public authority prerogative.

At this juncture, I address Ms Mitchell’s submission that Ms Grange’s analysis fails to follow the two-stage approach I summarised under §31 above. Ms Mitchell’s submission was that all proceedings involving Convention rights fall within the scope of Article 6(1) unless they come within an “excluded category”. On my understanding, Ms Mitchell’s argument is that the two-stage approach applies to all situations unless they come within an existing “excluded category”, not least because ECtHR would not wish to turn back the tide. Ms Grange’s main answer to that submission, and one which I have accepted, is that there is no such thing as “excluded categories” and the focus must always be on the nature of the proceedings under consideration. In a case which falls within the principle of “public-authority prerogative”, Ms Mitchell’s two-stage approach is inapposite.

Ms Grange also had an alternative submission which is set out under paras 38ff of her skeleton argument but was not repeated orally. Her contention was that not all Convention rights are “civil rights” for the purposes of Article 6(1).

In my judgment, this alternative submission needs careful analysis in light of QX.

Collins J in BC clearly thought that all Convention rights are civil rights regardless of the circumstances. The key Strasbourg authorities on this issue are Maaouia and Ferrazzini. My reading of paras 36-38 of the ECtHR’s judgment in Maaouia, and para 29 of its judgment in Ferrazzini, is that in expulsion and tax cases Article 6 did not apply at all even though there were incidental major repercussions on family and private life. If that reading is right, Collins J would be incorrect in holding that Convention rights are always “civil rights”. Lord Hoffmann’s reading of Maaouia in RB (Algeria) v SSHD [2009] EWCA Civ 290; [2010] 2 AC 110, at paras 177-178, was the same as mine. Collins J’s interpretation of both these authorities was that “the potential violation of the articles in question will be incidental”: see para 39. With respect, I think that para 178 of Lord Hoffmann’s speech has been misunderstood:

“The same is a fortiori true of the claims of a potential violation of articles 5, 6 and 8. It was suggested that the effect of the Human Rights Act 1998 was to convert all claims of infringement of Convention rights into civil rights within the meaning of article 6. If the proceedings had been an action in tort for a breach or threatened breach of article 3, they would certainly be asserting a civil right and article 6 would be engaged … [S]imilarly for violations of article 8. But these proceedings are not of that nature. They are a challenge to the validity of deportation orders. As I have said, it is the nature of the proceedings which decides whether article 6 is engaged or not.”

C3 and the Interested Parties rely on recent authority which they say is to a contrary effect. In QX in the Court of Appeal ([2022] EWCA Civ 1541; [2023] KB 472), Elisabeth Laing LJ stated:

“118 It is not necessary for me to decide this point [the right of abode point], however. In judgment 1, the Judge referred to the decision of Collins J in BC that the HRA made Convention rights into civil rights. The Secretary of State had not argued otherwise. I consider that approach is right in principle.

119 The making of a TEO, in isolation, may well be an act which falls “within the hard core of public-authority prerogatives”. But that is only the starting point …”

These passages need to be unpicked. Elisabeth Laing LJ was not required to analyse how BC should operate in a situation which fell within the hard core. This was because, although the making of the Temporary Exclusion Order probably fell within the hard core, no one was suggesting that the reporting and appointments obligations imposed on QX under a separate statutory power also did so. The nexus between the imposition of the TEO and the imposition of the obligations was such that, although Article 6(1) did not apply to the former seen in isolation, because it fell within the hard core, it did apply to the latter. The link between the former and the latter meant that Article 6(1) applied to the former as well.

When QX arrived at the Supreme Court, the main argument was about whether a right of abode is a “civil right” for the purposes of Article 6. That involved what Ms Mitchell would call her first stage. Lord Reed PSC gave the sole reasoned judgment and held that it was not a “civil right”. However, QX could succeed via a different route, and Lord Reed addressed that at para 87 of his judgment:

“It is common ground between the parties that the reporting and appointments obligations imposed upon the claimant in the present case were sufficiently intrusive to constitute interferences with his rights under Article 8 of the Convention, as given effect in domestic law by the HRA. It is also common ground that these rights are “civil rights” within the meaning of Article 6(1). Since the review of the decision to impose those obligations will determine whether the interference with those rights was lawful, and will therefore be decisive of the claimant’s civil rights, it is undisputed that Article 6(1) applies to the obligations review in this case.”

In my opinion, this paragraph has to be seen in its proper context. The Secretary of State was not arguing that the reporting and appointments obligations fell with the sphere of a public authority prerogative. It followed on that premise that there was space for this different, alternative approach: what Ms Mitchell would call her two-stage approach. QX did not have a “civil right” not to be required to report and attend appointments. However, if those obligations impinged on his Article 8 rights, then Article 6(1) nonetheless applied.

The Supreme Court was not being asked by the Secretary of State to apply its mind to the possibility that the reporting and appointments obligations also fell within a public-authority prerogative. As in the Court of Appeal, that submission was made only in relation to the imposition of the TEO. Had, quod non, the reporting and appointments obligations also been caught by the public authority prerogative, para 87 of Lord Reed’s judgment would not have been written in the way we see it.

My conclusion on Ms Grange’s alternative submission is that it may only avail her in a case which does fall within the hard core of public-authority prerogatives principle. In other words, the alternative submission collapses into the main submission. The logic of this conclusion is that if, and only if, I am wrong about the present case falling within this “prerogative”, Ms Mitchell’s two-stage approach would apply and the first issue would have to be answered in favour of C3 and the Interested Parties. If, on the other hand, I am right about the present case falling within the “prerogative”, Ms Mitchell’s two-stage approach cannot avail C3 and the Interested Parties. Either (per Lord Hoffmann in RB (Algeria)) in such situations there is no human right in play at all (my preferred analysis), or (per Collins J in BC, and per Lord Lloyd-Jones in Imperium Trustees) any human (or, even, civil) right is incidental. On either approach it is the nature of the decision under scrutiny which removes a case from the reach of Article 6(1). That is the answer to Ms Mitchell’s complaint, made at the beginning of her reply submissions, that Ms Grange’s submissions failed to deal with this two-stage approach.

For all these reasons, I conclude that the first issue must be determined in the FCDO’s favour.

I cannot leave this first issue without at least nodding metaphorically to a submission advanced in the FCDO’s Detailed Grounds of Defence which, as I have said, was not developed before me in the context of the present application. In HF and others v France [2022] 75 EHHR 31 the Grand Chamber considered the obligations of the French Republic in relation to its nationals held in Syria. The Grand Chamber held that Article 3 of Protocol 4 might place a positive obligation on States to issue travel documents (para 252). That by itself would be insufficient for the purposes of C3 and the three children. It also held that there was no consensus at European level or customary international law that nationals had to be repatriated, and insofar as there was a right to consular assistance, that applied only to EU nationals with no national representation and was a facet of EU rather than ECHR law (paras 258 and 259). Indeed, in the specific terms of the ECHR relevant to the instant case, it “does not guarantee the right to diplomatic or consular protection” (para 201).

In BEL, Chamberlain J held that the grant of entry clearance did not impose an obligation on the FCDO to grant consular assistance in order to make that grant effective: see para 101. Further, at para 82 of his judgment, Chamberlain J held, applying para 201 of HF, that Article 8 does not require positive action in the form of diplomatic or consular assistance. His reasoning was that if the express wording of Article 3 of Protocol 4 did not leave room for a right of diplomatic or consular protection, it is difficult to see how that result could be achieved via the indirect route of Article 8.

It would be wrong for me to express a concluded view as to whether these authorities have the effect suggested by the FCDO. In any event, Chamberlain J’s decision is persuasive only at this level. I leave the matter there, recognising that C3 and the Interested Parties have not had the opportunity to deal with it.

My conclusion on the first issue is dispositive of this application: AF (No 3) does not apply. However, in deference to Counsels’ submissions, I should address the second issue. I am able to do so briefly. Although I reject the notion that the FCDO is in some way responsible for the detention of C3 and the three children, I entirely agree with Ms Mitchell that the consequences to the family, including AB, of their not being afforded consular assistance are immense. One could not imagine a case further away from Tariq. I cannot accept any of Ms Grange’s submissions on this issue. The discretionary nature of the decision, highly relevant to the first issue, is not relevant to the second. The fact that the FCDO have no control over the camp as such does not mean that their decision not to offer consular assistance has no bearing at all on the continuing detention, by others, of C3 and the Interested Parties. Furthermore, the presence of the Special Advocates in CLOSED affords some safeguard (and the Special Advocates in CLOSED are doing an excellent job) but they are hampered by the absence of instructions from C3. Whereas it is correct that ordering disclosure under AF (No 3) might place the FCDO in the same sort of position in which the Home Office found itself in Tariq and which the Supreme Court absolved them from, that is often the dilemma that arises when AF (No 3) applies to its full extent. It is also a reason why, in fairness to Government, the Court must be sedulous in determining exactly where on the spectrum a particular case falls. The present case lies at the top end.

The application for AF (No 3) disclosure must be refused.

In my CLOSED judgment I have addressed further submissions from the Special Advocates on the law. I have also considered AF (No 3) disclosure de bene esse on the premise that I might be wrong on the issue of principle. C3 and the Interested Parties should know that, had I come to a different conclusion, I would have ordered further disclosure under AF (No 3) although no decision has yet been made as to what that disclosure should be.

There are further issues in CLOSED that I will address on 16 January 2026. After that CLOSED hearing, I will determine on the papers C3’s application for a review under s. 7 of the JSA 2013.

Finally, I appreciate that Mr Squires and his team have not been given much time to consider the ramifications of this judgment. They will need to weigh various factors, including the obvious possibility that any application for permission to appeal would have the tendency to derail the February hearing. It is certainly not my intention to place any further pressure on the open representatives, but it would be helpful to know before 16 January whether they intend to make an application for permission to appeal. If they make it to me (and they need not wait for the drawing up of a court order formalising the refusal of the AF (No 3) application), I will determine it as quickly as possible.