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United Kingdom / Court of Appeal, Civil Division / T3/2016/3471 & 3931

R. (on the applications of XH and AI) v Secretary of State for the Home Department

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Type:
Decision
Decision date:
02/02/2017

Key facts of the case: 

The case concerns the appeals of XH and AI, British nationals, against a decision upholding the Secretary of State's decision to use prerogative powers to cancel their passports on the grounds that she suspects that they plan to travel to Syria to be involved in terrorism-related activity. The issues were whether: 1) the exercise of powers under the prerogative was invalid because those powers had been impliedly abrogated by the Terrorism Prevention and Investigation Measures Act 2011 (“TPIM Act”) which has imposed demanding procedural protections; and 2) cancellation of the passports infringed EU law rights (including the Charter and Directive EC/2004/38) because it was disproportionate and there were insufficient procedural safeguards.

Outcome of the case: 

The appeal was dismissed. On ground 2) (relevant to fundamental rights) the Court of Appeal held that: i) The grounds relied on by the Secretary of State demonstrated a genuine, present and sufficiently serious threat to a vital national interest. ii) There was a sufficient basis for the decision as the Divisional Court had been in possession of sufficient material to permit a proper assessment of proportionality. iii) Special advocates were in place who had examined whether the essence of the grounds for the decision had been disclosed and whether anything else could be disclosed to the appellants. iv) In making her decision the Secretary of State is obliged under domestic public law to act fairly, and the court on judicial review can quash her decision if she does not, and the Divisional Court adhered to conventional standards of judicial review which met the needs of this particular case. v) Assuming that Article 41 applied in this case, it was not breached. The Court of Appeal held that, in circumstances where there are national security objections to giving advance notice and to providing detailed information to the person affected by the decision, the adoption of a closed procedure in any court proceedings to challenge that decision can be justified. Therefore, in the circumstances of the case, the failure to afford an opportunity to make representations before the cancellation of the passport was not an infringement of EU law: representations before reconsideration was sufficient to satisfy the right to good administration and the observance of the rights of the defence.