FD, R (on the application of) v The Secretary of State for the Home Department [2026] EWCA Civ 999

[2026] EWCA Civ 999Case No CA-2025-003111
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 3291 (Admin)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT
MR JUSTICE CONSTABLE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 July 2026
Before
LORD JUSTICE PETER JACKSONLORD JUSTICE LEWISSIR NICHOLAS UNDERHILL
Between
THE KING (on the application of FD)Claimant/THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/
Zane Malik KC and Joshua Yetman (instructed by the Treasury Solicitor) for AppellantManjit Gill KC and Tony Muman (instructed by J.M. Wilson Solicitors) for RespondentHearing Hearing date: 30 June 2026
Approved JudgmentThis judgment was handed down remotely at 4pm on 29 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This appeal concerns the proper interpretation of section 22(3) of the Counter-Terrorism and Security Act 2015 (“the 2015 Act”). Section 22(1) empowers the Secretary of State to make a scheme requiring a carrier to seek authority to carry persons on aircraft, ships or trains arriving in the United Kingdom. Section 22(2)(c) provides that a scheme must, amongst other things, specify or describe the classes of passengers in respect of whom authority to carry may be refused. Section 22(3) of the 2015 Act provides that:
“(3) An authority-to-carry scheme may specify or describe a class of persons under subsection (2)(c) only if it is necessary in the public interest.”
[2]The Secretary of State has made the Authority to Carry Scheme 2023 (“the Scheme”). Paragraph 14 of the Scheme specifies the persons in respect of whom authority to carry may be refused. The opening words of paragraph 14(f) include individuals “who are the subject of a deportation order”.[3]The issue in this appeal is whether the power to specify a class of persons for whom an authority to carry may be refused is limited to specifying individuals who pose a terrorist-related threat to the United Kingdom. Or does the power enable the Secretary of State to include individuals who are the subject of a deportation order?[4]The appeal arises in the following context. The respondent, FD, is a national of Jamaica but has lived for many years in the United Kingdom. He was made the subject of a deportation order in 2017. He made an asylum and a human rights claim. Those claims were treated by the Secretary of State as, essentially, an application to revoke the deportation order. For many years, that application remined undetermined and no steps were taken to deport FD. In December 2024, he was told by an official acting on behalf of the Secretary of State that he had indefinite leave to remain and he was invited to, and did, open an electronic visa account which showed him as being settled in the United Kingdom. He travelled to Turkey for a five-day holiday in September 2025. At the end of the holiday, he went to the airport in Turkey in order to fly back to the United Kingdom. He was informed that the Secretary of State had refused authority for the airline to carry him. He was unable to board the flight and was left in Turkey. He brought a claim for judicial review of the decision to refuse authority for the airline to carry him to the United Kingdom.[5]Constable J (“the judge”) decided that the power to specify classes of persons who could be refused authority to carry was limited to persons who were terrorists or posed a terrorist-related threat to the United Kingdom. FD was not such a person and so his inclusion in the class of persons for whom an authority to carry had to be obtained was unlawful. The judge further concluded that the particular decision to refuse authority in FD’s case was unlawful on domestic law grounds, notably that it was irrational, and breached FD’s rights under Article 8 of the Convention for the Protection of Human Rights (“the Convention”). Following that decision, FD was permitted to return to the United Kingdom.[6]The Secretary of State has permission to appeal against that decision on two grounds, namely, that the judge erred:(1) in holding that the Scheme, and in particular paragraph 14(f) of the Scheme, was limited in application to those persons who pose a terrorism or terrorism-related threat;(2) in failing to appreciate that because section 22(7) of the 2015 Act provides that the grant or refusal of an authority under the Scheme does not determine whether a person is entitled or permitted to enter the UK, FD could still return to the United Kingdom through other means.[7]Permission to appeal on grounds concerning the correctness of the judge’s conclusion that the individual decision was unlawful was refused by the Court of Appeal, as there was no realistic prospect of those grounds succeeding and because the issues were academic as FD had now returned to the United Kingdom: see R (FD) V Secretary of State for the Home Department [2026] EWCA Civ 320. Permission to appeal was granted in relation to the two grounds above as there was a realistic prospect of those grounds succeeding. The issue might still arguably be seen as academic, as far as FD is concerned, but if so it appeared that it might be appropriate to deal with the interpretation of the statute. This issue is dealt with below.[8]Finally, there is an application by the Secretary of State to admit the witness statement of Simon Watkin dated 19 December 2025. The respondent does not object to the admission of that statement. I would grant permission to admit that witness statement (save that I would not admit paragraph 26 which includes an extract of a statement made by a Minister in Parliament). The statement gives useful factual information about the numbers of person made subject to a refusal under the Scheme although I would give little or no weight to Mr Watkin’s opinion on the matters that fall to be decided in this appeal. THE LEGISLATIVE FRAMEWORK Background

THE LEGISLATIVE FRAMEWORK

[9]The power to make arrangements requiring a carrier to obtain authority to carry a passenger to the United Kingdom was first enacted in section 124 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). That section provided that regulations made by the Secretary of State may authorise him to require a carrier to pay a penalty if the carrier brought a passenger to the United Kingdom and the carrier was required to, but did not, have authority to carry the passenger under an authority to carry scheme operated by the Secretary of State. Section 124(3) required the Secretary of State to specify the class of carriers, and the class of passengers, to which an authority to carry scheme applied. There was no equivalent provision to section 22(3) of the 2015 Act. The Secretary of State first made an authority to carry scheme in 2012. The 2015 Act[10]The long title to the 2015 Act is as follows:
“An Act to make provision in relation to terrorism; to make provision about retention of communications data, about information, authority to carry and security in relation to air, sea and rail transport and about reviews by the Special Immigration Appeals Commission against refusals to issue certificates of naturalisation; and for connected purposes.”
[11]It had seven parts. Part 1 dealt with temporary restrictions on travel. Part 2 dealt with terrorism and investigative measures. Part 3 dealt with the retention of data. Part 4, which contains section 22, is headed “Aviation, Shipping and Rail”. Part 5 includes provisions dealing with the risk of persons being drawn into terrorism and Part 6 includes amendments to the Terrorism Act 2000. Part 7 contains miscellaneous provisions.[12]Part 4 deals with the power to make authority-to-carry schemes. Section 22(10) removes section 124 from the 2002 Act. Section 22 then contains the power to make an authority-to-carry scheme. Such a scheme must specify, amongst other things, the classes of passengers in respect of whom authority to carry may be refused. A class may only be specified if that is “necessary in the public interest” (section 22(3)). The scheme must also include a process by which carriers may request authority to carry. Section 22(5) makes it clear that the Secretary of State has a discretion to grant or refuse a request for an authority to carry. The fact that a person falls into one of the classes specified in the authority to carry scheme enables, but does not require, the Secretary of State to refuse authority. The Secretary of State has a discretion as to whether to refuse authority.[13]Section 22 of the 2015 Act is in the following terms: “22. — Authority-to-carry schemes(1) The Secretary of State may make one or more schemes requiring a person (a “carrier”) to seek authority from the Secretary of State to carry persons on aircraft, ships or trains which are— (a) arriving, or expected to arrive, in the United Kingdom, or (b) leaving, or expected to leave, the United Kingdom. A scheme made under this section is called an “authority-to-carry scheme”.(2) An authority-to-carry scheme must specify or describe— (a) the classes of carrier to which it applies (which may be all carriers or may be defined by reference to the method of transport or otherwise), (b) the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise), and (c) the classes of passengers or crew in respect of whom authority to carry may be refused.(3) An authority-to-carry scheme may specify or describe a class of person under subsection (2)(c) only if it is necessary in the public interest.(4) The Secretary of State may make different authority-to-carry schemes for different purposes and in particular may make different schemes for different types of carrier, journey or person.(5) An authority-to-carry scheme must set out the process for carriers to request, and for the Secretary of State to grant or refuse, authority to carry, which may include— (a) a requirement for carriers to provide specified information on passengers or crew by a specified time before travel; (b) a requirement for carriers to provide the information in a specified manner and form; (c) a requirement for carriers to be able to receive, in a specified manner and form, communications from the Secretary of State relating to the information provided or granting or refusing authority to carry.(6) Information specified under subsection (5)(a) may be information that can be required to be supplied under paragraph 27, 27B or 27BA of Schedule 2 to the Immigration Act 1971, section 32 or 32A of the Immigration, Asylum and Nationality Act 2006 or otherwise.(7) The grant or refusal of authority under an authority-to-carry scheme does not determine whether a person is entitled or permitted to enter the United Kingdom.(8) So far as it applies in relation to Scotland, an authority-to-carry scheme may be made only for purposes that are, or relate to, reserved matters (within the meaning of the Scotland Act 1998).(9) So far as it applies in relation to Northern Ireland, an authority-to-carry scheme may be made only for purposes that are, or relate to, excepted or reserved matters (within the meaning of the Northern Ireland Act 1998).(10) In the Nationality, Immigration and Asylum Act 2002 omit section 124 (authority to carry).” (a) the classes of carrier to which it applies (which may be all carriers or may be defined by reference to the method of transport or otherwise), (b) the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise), and (c) the classes of passengers or crew in respect of whom authority to carry may be refused. (a) a requirement for carriers to provide specified information on passengers or crew by a specified time before travel; (b) a requirement for carriers to provide the information in a specified manner and form; (c) a requirement for carriers to be able to receive, in a specified manner and form, communications from the Secretary of State relating to the information provided or granting or refusing authority to carry.[14]Section 23(1) provides that an authority to carry scheme comes into force “in accordance with regulations made by the Secretary of State by statutory instrument”. A draft of the regulations and the scheme must be laid before Parliament and approved by a resolution of each House before the Secretary of State may make the regulation (see section 23(2) of the 2015 Act).[15]Section 24 provides power for the Secretary of State to make regulations imposing penalties for breaching the requirements of an authority to carry scheme.[16]Section 25 is headed “Aviation, maritime and rail security” and provides that Schedule 5 “makes amendments to do with aviation, maritime and rail security”.

The Scheme

[17]The Secretary of State made the Scheme in 2023. It was brought into force by the Authority to Carry and Civil Penalties Regulations 2023. Paragraphs 1 to 4 of the Scheme set out the context in which the Scheme was made and would operate. Paragraph 2 says that:
“2. Operating an authority to carry scheme is an important element of the UK’s border security, aviation security and wider transport security arrangements. The threat from terrorism is real and ongoing. There is a need to prevent or disrupt the exit from, entry to or return to the UK of individuals who pose a terrorism-related threat, or other threat to the UK or its interests. This includes mitigating the threat of an attack on aircraft operating to the UK (or onward from the UK) or an attack on a ship or international train operating to the UK.”
[18]Paragraph 4 explains that the use of a visa regime can be used as a means of preventing a person travelling to the United Kingdom if he poses a threat to the United Kingdom. It notes, however, that it will not always be apparent that a visa has been cancelled.[19]Paragraph 6 set out the purpose of the Scheme in the following terms:
“6. The purpose of this Scheme is to prevent certain individuals from travelling to or from the UK when that it is necessary in the public interest.”
[20]Paragraphs 7 to 13 specify the classes of carrier, and the classes of passenger, to which the Scheme applies. Paragraph 14 deals with the person in respect of whom an authority to carry may be refused. It provides, so far as material to this appeal, that: “14. Authority to carry to the UK may be refused in respect of the following persons: ….. f) Individuals who are the subject of a deportation order or whom the Secretary of State in the process of making the subject of a deportation order under the Immigration Act 1971 or who were subject to deportation proceedings but left the UK before those proceedings concluded; ..…”. f) Individuals who are the subject of a deportation order or whom the Secretary of State in the process of making the subject of a deportation order under the Immigration Act 1971 or who were subject to deportation proceedings but left the UK before those proceedings concluded; ..…”.[21]Paragraph 14(f) specifies three distinct groups of individuals who may be refused authority to carry. This appeal concerns only the first group, namely individuals “who are the subject of a deportation order”.

THE FACTUAL BACKGROUND AND THE JUDGMENT BELOW

[22]The facts are set out fully in paragraphs 6 to 23 of the judgment of the judge. For the purposes of this appeal, it is sufficient to set out paragraph 2 which summarises the facts and the grounds of challenge in the following terms:
“2. FD is a long-term resident of the UK. FD was subject to a deportation order made in 2017. This revoked his prior indefinite leave to remain (“ILR”). In December 2024, FD was provided with a communication from SSHD which FD contends, as a minimum, gave rise to a legitimate expectation that he had ILR, and was invited to apply for a UKVI account through which to obtain an eVisa. The application was successful, and his status recorded on the eVisa as “settled”
. FD travelled to Turkey on holiday in September 2025 believing he would be entitled to return. On 23 September 2025 SSHD refused to grant authority to an airline to carry FD back to the UK, relying on the Authority to Carry Scheme 2023 (“the ATC Scheme”). Shortly thereafter, on 29 September 2025, FD’s access to his eVisa was removed. On 2 October 2025 SSHD notified her refusal of FD’s outstanding asylum and human rights claim, which had been lodged in 2019 (“the 2019 Claim”). The circumstances in which the various decisions were made are considered further below. FD contends that these decisions, individually and collectively, were unlawful, procedurally unfair, and in breach of his rights under the Immigration Act 1971 and article 8 of the European Convention on Human Rights (“ECHR”).”[23]The first part of ground 1 of the judicial review claim asserted that the Scheme was inapplicable in circumstances where, as was not in dispute on the facts, there was no suggestion that FD was in any way a terrorist or posed a terrorism-related threat.[24]The judge set out the relevant provisions of the 2015 Act. He referred to the Explanatory Notes to the 2015 Act and provisions of the Scheme. He considered the submissions of the parties, noting that the Secretary of State submitted that it was not necessary for the refusal of authority to relate in some way to any terrorist threat. He said that:
“31. This analysis rests fundamentally on construing the words “only if it is necessary in the public interest” within section 22(3) of the 2015 Act broadly, so as to include anything which may be deemed, in any way, necessary in the public interest. 32. The competing construction is that the words “only if it is necessary in the public interest” are to be construed within section 22(3) as referring to necessity in the public interest insofar as relates to terrorism-related threats. 33. Contrary to the forceful and eloquent submission of Mr Yetman [counsel for the Secretary of State], it is clear from the 2015 Act itself, the Explanatory Notes and the ATC Scheme as set out further below that the whole object of the introduction of broad and intrusive powers provided to SSHD pursuant to the 2015 Act is the prevention of terrorism-related threats. As a matter of statutory construction, it is in the context of this clear object that the meaning of necessity in the public interest must be viewed.”

The judge concluded that:

“41. It is overwhelmingly clear that the provision of significant powers to the State pursuant to the 2015 Act was very specifically targeted at dealing with the threat of terrorism. The powers are broad. For example, as Mr Yetman rightly pointed out in submissions, paragraph 14(f) of the ATC includes in the class of people who may be refused authorisation to travel not just people who are actually subject to a deportation order, but those in relation to whom no deportation has in fact even yet been made. Both parliamentarians and the public alike would no doubt have been reassured by the passages referred to above that such broad powers only arose from, were justified by, and would be exercised pursuant to the public interest in meeting the stated “real and ongoing threat from terrorism”. 42. It is in light of this clear object that the words “only if it is necessary in the public interest” used section 22(3) of the 2015 Act must be construed. 43. It follows that the decision to invoke the ATC Scheme to prevent FD, a person who poses no terrorism-related threat, from returning to the UK was an unlawful one, and should be quashed.”

The judge’s order provides at paragraph 3 that:

“(1) Ground 1: allowed to the extent that the notice of refusal of authority to carry the Claimant issued to the airline on 23 September 2025 was unlawfully made because the Authority to Carry Scheme 2023 was inapplicable to the Claimant”
.

THE APPROPRIATENESS OF DEALING WITH THE APPEAL

[27]The issue in the present appeal concerns the proper interpretation of a statutory provision, namely section 22(3) of the 2015 Act. In one sense, that issue may be academic, so far as FD is concerned, as the refusal to grant authorisation for him to return to the United Kingdom has been quashed and, perhaps even more significantly, he has now returned to the United Kingdom. Nonetheless, there is in place an order which provides that the Scheme does not apply to FD as he is not a person suspected of being a terrorist or concerned in terrorism-related activity. Furthermore, even if the issue were academic, this Court has a discretion in an appropriate case to hear appeals involving questions of public law even where the issue is academic as between the parties to the appeal: see R v Secretary of State for the Home Department ex p. Salem [1999] 1 AC 450 as applied by this Court in R (AY) v Vale of Glamorgan Council [2025] EWCA Civ 671, especially at paragraphs 42 to 45, and R (L) v Devon County Council [2021] EWCA Civ 358, at paragraph 50. I am satisfied that this is an appropriate case in which the Court should hear and determine the appeal for the following reasons.[28]First, this case concerns an issue of statutory interpretation, namely the proper scope of section 22(3) of the 2015 Act. Secondly, the issue is an important one of general significance to the operation of authority-to-carry schemes. Thirdly, the issue is likely to arise in relation to a number of cases in future. Fourthly, the issue here is being decided against a background of actual, not hypothetical, facts. Fifthly, both parties are represented by counsel and there has been full argument on the issue.[29]Sixthly, and of particular significance in this case, unless the issue is resolved in these proceedings there may well be a difficulty in resolving it authoritatively in future cases. A refusal to allow an airline to carry an individual is likely to be overtaken by events and a refusal may not be the subject of judicial review proceedings. A deportation order invalidates any existing leave to enter the United Kingdom (and, if for some reason, leave has been granted after the making of the order, that leave is also likely to be cancelled). Any challenge in relation to the cancellation of leave to enter would be likely to proceed by way of an appeal in the First-tier Tribunal against a refusal of a human rights claim made by the individual not by way of a claim for judicial review of a refusal of authority to carry. If the issue is not determined in these proceedings, therefore, there may be difficulty in resolving it authoritatively in future cases.[30]That was a factor that arose in R (Brooks) v London Borough of Islington [2016] PTSR 389. That case concerned the proper interpretation of provisions in Part 7 of the Housing Act 1996 imposing an interim duty on a local housing to provide temporary accommodation. By the time that the claim for judicial review came to court for a hearing, the local housing authority had reached a final decision on whether a duty to secure housing was owed. The issue of the existence of an interim duty to secure accommodation was, therefore, academic as between the parties. The High Court allowed the claim to proceed as the time during which any interim duty was owed was likely to be relatively short and in most, perhaps all, cases the question of enforcement of the interim duty would have ceased to be a live issue before the matter could be brought before a court by way of judicial review. A similar situation is likely to arise in relation to decisions refusing authority to carry a person under the Scheme.[31]Mr Gill KC for FD indicated that there may be a problem as any decision of this Court would not be binding. First, the decision (as is the case with any decision of this Court) is binding on the parties. The appeal will either set aside paragraph 3(1) of the order of the judge below or will uphold that order. Secondly, and in any event, whether strictly binding or not, the courts have consistently recognised that it has a discretion in an appropriate case to hear an appeal which raises questions of public law even if they are academic as between the parties. GROUND 1 – WHETHER THE POWER TO MAKE THE SCHEME IS LIMITED TO THOSE WHO POSE A TERRORIST OR TERRORIST-RELATED THREAT Submissions[32]Mr Malik KC, with Mr Yetman, for the Secretary of State, submitted that the appeal depends upon the meaning of the words “necessary in the public interest” in section 22(3) of the 2015 Act. He submitted that there was nothing in those words to indicate that the public interest was limited to the public interest in countering terrorist-related threats. On its natural and ordinary meaning, the phrase “necessary in the public interest” was capable of encompassing situations where a person was the subject of a deportation order whatever the basis on which that order was made. Further, when Parliament intended to restrict the exercise of the power to circumstances involving terrorism or terrorism-related threats, it did so expressly, as with sections 1 and 2 of the 2015 Act. There was no basis for reading in words so that section 22(3) was to be read as meaning necessary in the public interest “for the prevention of terrorism”.[33]Mr Gill KC, with Mr Muman, for FD submitted that the words “necessary in the public interest” had to be read in context. The context here was the 2015 Act which was concerned with measures to address the risk presented by terrorism. That was the context in which it had to be “necessary in the public interest” to exercise the powers conferred by section 23 of the 2015 Act.

Discussion

[34]This appeal depends upon the proper interpretation of section 22(3) of the 2015 Act. That involves considering the words of the statutory provision, read in their statutory context and having regard to the purpose underlying the statute, and bearing in mind any legitimate aids to statutory interpretation. As words in a statute derive their meaning from their context, it may be necessary to read the words in the context of the section and in the wider context of the statute as a whole. It is the words which Parliament has chosen to use which are the primary source by which its meaning is ascertained. See, generally, R (O) v Secretary of State for the Home Department [2023] AC 255, paragraphs 29–31.[35]Section 22(1) provides a power for the Secretary of State to make a scheme requiring a carrier to seek authority to carry persons on an aircraft, ship or train coming to or going from the United Kingdom. The scheme “must” specify or describe, amongst other things, the classes of passengers in respect of whom authority to carry may be refused (see section 22(2)(c) of the 2015 Act). Section 22(3) provides that the power to specify a class of persons is exercisable only where that is “necessary in the public interest”.[36]There is nothing in the words of section 22(3), or of section 22 read as a whole, which indicates that the power is limited to one aspect of the public interest, namely to address the risk posed by persons who pose a terrorism-related threat travelling to the United Kingdom. Giving the words their ordinary and natural meaning, the words “in the public interest” are capable of encompassing a wide range of circumstances where action to control the travel of persons to and from the United Kingdom is considered necessary.[37]That conclusion is reinforced by a consideration of other provisions in the 2015 Act. Where Parliament intended a power to be exercisable only where that was considered necessary to deal with terrorism-related concerns, it expressly says so. Section 1 of, and Schedule 1 to, the 2015 Act, for example, makes provision for the seizure and temporary retention of travel documents “where a person is suspected of intending to leave Great Britain or the United Kingdom in connection with terrorism-related activity”. Similarly, section 2 confers a power to make a temporary exclusion order excluding someone from the United Kingdom if certain conditions are satisfied. One of the conditions is that the Secretary of State “reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom”. By contrast the power in subsections 22(1), (2)(c) and (3) to specify a class of persons in respect of whom an authority to carry is required is not expressed to be exercisable only in circumstances involving persons who are involved in terrorism-related activity.[38]The conclusion that the power conferred by section 22 is not confined to circumstances involving terrorism-related activity is further confirmed by the long title, and the structure, of the 2015 Act itself. The long title is set out at paragraph 10 above. It is an Act to make provision for three matters, as appears from a careful reading of the long title itself, namely(1) terrorism(2) the retention of communications data, information, authority-to-carry and security in relation to air, sea and rail transport and certain reviews of certificates of naturalisation and(3) connected purposes.[39]The structure of the 2015 Act is summarised at paragraph 12 above. In essence, certain parts of the 2015 Act are addressed to the risk posed by terrorism-related activities, such as Parts 1, 2, 5 and 6. Part 3 (now repealed) dealt with amendments to a statute dealing with the retention of communications data in cases involving national security and serious crime (not merely terrorism). Part 4 deals with aviation, rail and shipping. Sections 22 to 25 deal with the making and operation of authority-to-carry schemes. Section 26 deals with amendments to statutes concerning the security of aviation, rail and shipping. There is nothing in the long title of the Act, nor its structure, to suggest that its sole object was to address the risk connected with terrorism.[40]That view is confirmed by, or at least consistent with, the legislative history. It is not suggested that the legislative history is directly relevant to the proper interpretation of subsections 22(1), (2)(c) and (3) of the 2015 Act. The history does, however, provide the context in which Part 4, and section 22, of the 2015 Act was enacted. The operation of an authority-to-carry scheme was first recognised in section 124 of the 2002 Act. That was an Act to make provision, amongst other things, for immigration and nationality. Section 124 appeared in Part 6 of the 2002 Act which was concerned with immigration procedures. Section 22(10) of the 2015 Act provides that section 124 was to be omitted from the 2002 Act. Part 4 of the 2015 Act makes provision, in different terms, for the making of authority-to-carry schemes. That indicates that Part 4 of the 2015 Act was not simply dealing with the risk presented by terrorist-related activity but, rather, was a replacement for the previous provisions governing authority-to-carry schemes as an aspect of immigration procedure.[41]For those reasons, the judge was wrong to conclude that the powers conferred by section 22 of the 2015 were enacted to meet the real and continuing threat from terrorism. He was wrong, therefore, to conclude that the words “only if necessary in the public interest” had to be construed in that context. Rather, the power in section 22(2)(c) could be exercised only if it were necessary in the public interest. On a proper interpretation of section 22(3), the public interest includes, but is not limited to, the prevention of terrorist-related activity.[42]The next question is whether the public interest is broad enough to encompass the specification of persons subject to deportation orders among the class of passengers for whom an authority to carry is required. A person is liable to deportation if that is deemed conducive to the public good (see section 3(5) of the Immigration Act 1971 (“the 1971 Act”)). In the case of foreign criminals, that is non-British citizens convicted of an offence in the United Kingdom and sentenced to at least one years’ imprisonment, deportation is deemed to be conducive to the public good and the Secretary of State must make a deportation order unless one of the statutory exceptions apply (see sections 32(4) and (5), and 33 of the UK Borders Act 2007). A person subject to a deportation order is required to leave the United Kingdom and it is a criminal offence for that person to enter the United Kingdom in breach of the order (see sections 5 and 24(A1) of the 1971 Act). In those circumstances, it is open to the Secretary of State to conclude that it is necessary in the public interest to specify that persons subject to a deportation order are to be included in the class of persons for whom an authority to carry is required. I would emphasise again that we are only considering the position of persons subject to deportation orders on this appeal. I express no view on the question of whether the Secretary of State could lawfully specify other persons including those who are, or have been, subject to the process of the making of a deportation order, as requiring an authority to carry.[43]For those reasons I would allow the appeal on ground 1. GROUND 2 – THE RELEVANCE AND MEANING OF SECTION 22(7) OF

The 2015 Act

[44]Against that background, I can deal shortly with ground 2. That alleges that the judge erred in failing to appreciate that FD could still return to the United Kingdom as section 22(7) of the 2015 Act provided that the grant or refusal of an authority to carry under the Scheme did not determine whether a person was entitled or permitted to enter the United Kingdom.[45]First, there is no indication that the judge did fail to appreciate the meaning of section 22(7). Secondly, in any event, subsection 22(7) does not cast any light on the proper interpretation of subsections 22(1), (2)(c) and (3) of the 2015 Act. The subsection provides, essentially for the avoidance of doubt, that decisions to grant or refuse an authority to carry does not affect an individual’s immigration status. In other words, such a decision does not, of itself, affect a person’s existing leave to enter or remain in the United Kingdom. That does not assist in determining the scope of the powers conferred by section 22. I would add, however, that it is unrealistic to assume that a person would be able to return to the United Kingdom if an authority to carry was refused. The reality, as was accepted by the Secretary of State in argument, is that authority to carry would continue to be refused if the person continued to attempt to travel to the United Kingdom. There was discussion about the possibility of a person flying to the Republic of Ireland and seeking to cross into the United Kingdom by land. That prospect, although theoretically available, does not appear to reflect the reality for most, if not all, of those in respect of whom authority to carry is refused. In any event, it is unrealistic to suggest that that possibility affects the proper interpretation of the powers conferred by section 22(2)(c) or the meaning of “necessary in the public interest” in section 22(3) of the 2015 Act. I would dismiss ground 2.

CONCLUSION

[46]I would allow the appeal on ground 1 and set aside paragraph 3(1) of the order made by the judge. The power to specify the class of persons for whom an authority to carry is required is not limited to persons suspected of involvement in terrorist-related activity. The power is broader. The Secretary of State was entitled to conclude that persons subject to a deportation order should be included in the class of persons for whom an authority to carry could be refused.

SIR NICHOLAS UNDERHILL

[47]I agree. LORD JUSTICE PETER JACKSON[48]I also agree.