“This letter is to inform you that the above passport has been cancelled and you are no longer permitted to use this document to travel to and from the United Kingdom. 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 Home Secretary considers that it is not in the public interest that you should hold a passport. You are a British National who is involved in terrorism-related activity. It is assessed that you are likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest. The passport remains the property of the Crown and will be retained. Her Majesty’s Passport Office requests that you return the passport to the police officer delivering this letter. It is open to you to apply for a passport at a later date. The issue of a passport will be determined on the circumstances at the time of any application. If you require any further information, please contact Her Majesty’s Passport Office, quoting the above reference number.”
“You are a British national involved in terrorism-related activity. It is assessed that you are an Islamist extremist. It is assessed that prior to the exercise of the Royal Prerogative you have been in possession of media concerning anti-American and Israeli propaganda and video clips in support of jihad and violence. It is assessed that prior to the exercise of the Royal Prerogative you may have maintained contact with associates assessed to be located in Syria where they were engaged in Islamist extremist activities. It is assessed that prior to the exercise of the Royal Prerogative you were likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities overseas would present a risk to the national security of the United Kingdom.”
“The Secretary of State was invited to exercise the Royal Prerogative to cancel the Claimant’s British passport on the grounds that his activities are undesirable for reasons of national security. She was provided with a written submission and supporting material which recommended that she agree that the public interest criteria for exercising the prerogative are met and that the passport should be cancelled, and that she should sign an authority for the passport to be retrieved from the Claimant. What follows is a summary of that submission; The Claimant is a British citizen, born in London in 1990 and currently residing there. He has a criminal record dating back to 2009, which includes offences such as theft and violence against a police officer. He is believed to be currently involved in criminal activity including dealing in stolen property and student loan fraud; The Claimant is an Islamist extremist. He may have maintained contact with associates assessed to be located in Syria where they are engaged in Islamist extremist activities, including fighting; he has repeatedly expressed a desire to travel overseas to participate in Islamist extremist activities; and he has been involved in activities in tangible and practical support of Syria-based Islamist extremist associates; The Home Secretary’s written ministerial statement of25 April 2013 sets out the criteria for exercising the Royal Prerogative on public interest grounds, and provided that 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 or other serious or organised criminal activity; The detail set out in the submission shows that the Claimant is intending to travel overseas to engage in terrorist related activity, likely to be related to Syria. His past, present and proposed activities if he should travel to Syria support the view that it would be contrary to the public interest for him to hold a British passport. The risk posed by the Claimant is assessed to be better managed if he were unable to travel overseas to Syria; Removal of the passport is necessary and proportionate to the threat the Claimant poses; other disruptive measures have been considered and rejected; Although there may be arrest opportunities, they are uncertain and it would not necessarily be the case that the Claimant would be required to surrender his passport as a condition of bail; There is no reason to believe that the Claimant has family overseas or any legitimate overseas travel plans; If there are compelling circumstances requiring the Claimant to travel within the EU and if the risk to national security could be adequately managed, it may be possible to consider issuing a single-use travel document; If following a decision to exercise the Royal Prerogative, the Claimant applied for a passport or a temporary travel document, or requested reconsideration of the cancellation of his passport, the assessment will be reviewed and further advice provided to the Secretary of State; There is written administrative guidance setting out the process by which the Secretary of State is invited to exercise her power under the Royal Prerogative to cancel a British passport on the grounds of national security. That process was followed in the case of this Claimant; The Secretary of State’s case against the Claimant is not based on his previous travel overseas.”
“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 Home Secretary considers that it is not in the public interest that you should hold a passport. You are a British national who is assessed to be supportive of the actions and ideology of the terrorist organisation known as Islamic State (also known as IS, ISIL and ISIS). It is assessed that you aspire to travel to Syria or Iraq in the future to engage in, and provide support for, terrorism-related activity on behalf of the Islamic State. It is assessed that these activities in Syria or Iraq would present a risk to the national security of the United Kingdom. You are therefore considered a person whose past, present or proposed activities, actual or suspected, are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest. The passport remains the property of the Crown and will be retained. It is open to you to apply for a passport at a later date. The issue of a passport will be determined on the circumstances at the time of any application. If you require any further information, please contact Her Majesty’s Passport Office, quoting the above reference number.”
“You are a British national who is assessed to have an extremist mind-set and who has published via social media a body of Islamist extremist material. You are assessed to be supportive of the actions and ideology of the terrorist organization known as the Islamic State (also known as IS, ISIL and ISIS). Your brother, Mohammed …, is currently located in Iraq, fighting with ISIL and has encouraged you to travel to ISIL controlled territory. It is therefore assessed that you aspire to travel to Syria or Iraq in the future in order to engage in, and provide support for, terrorism-related activity likely on behalf of ISIL. It is assessed that these activities in Syria or Iraq would present a risk to the national security of the United Kingdom.”
“The grant of United Kingdom passports is a Royal prerogative exercised through Her Majesty’s Ministers and in particular the Foreign Secretary. No United Kingdom citizen has a legal right to a passport and in theory the Foreign Secretary has the power to withhold or withdraw a passport at his discretion, although in practice such power is exercised only in exceptional cases”. (2) In response to a question by Viscount Stansgate in 1958, the Earl of Gosford described the policy as follows: “The Foreign Secretary has the power to withhold or withdraw a passport at his discretion, although in practice such power is exercised only very rarely and in very exceptional cases. First, in the case of minors suspected of being taken illegally out of the jurisdiction; secondly, persons believed on good evidence to be fleeing the country to avoid prosecution for a criminal offence; thirdly, persons whose activities are so notoriously undesirable or dangerous that Parliament would be expected to support the action of the Foreign Secretary in refusing them a passport or withdrawing a passport already issued in order to prevent their leaving the United Kingdom; and fourthly, persons who have been repatriated to the United Kingdom at public expense and have not repaid the expenditure incurred on their behalf.” (3) The policy has been restated and amended on a number of occasions since 1958 - see, for example, Hansard, HC Deb,15 November 1974 , Vol 881, col 265W; HC Deb,22 January 1981 , Vol 997, cols 234-235W; and HL,25 July 2002 , col WA107. (4) On25 April 2013 , the Secretary of State announced, in a Written Ministerial Statement (“WMS”), the latest version of the policy in relation to the exercise of the Royal Prerogative in the present context. This represents current policy and the policy in force at the time of the decisions in the Claimants’ cases: “There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative. This Written Ministerial Statement updates previous statements made to Parliament from time to time on the exercise of the Royal Prerogative and sets out the circumstances under which a passport can be issued, withdrawn, or refused. It redefines the public interest criteria to refuse or withdraw a passport. A decision to refuse or withdraw a passport must be necessary and proportionate. The decision to withdraw or refuse a passport and the reason for that decision will be conveyed to the applicant or passport holder. The disclosure of information used to determine such a decision will be subject to the individual circumstances of the case. The decision to refuse or to withdraw a passport under the public interest criteria will be used only 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 to 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 or other serious or organised criminal activity. This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the United Kingdom, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil. The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world Operational responsibility for the application of the criteria for issuance or refusal is a matter for the Identity and Passport Service (IPS) (now HM Passport Office) acting on behalf of the Home Secretary. The criteria under which IPS (now HM Passport Office) can issue, withdraw or refuse a passport is set out below. Passports are issued when the Home Secretary is satisfied as to: i. the identity of an applicant; and ii. the British nationality of applicants, in accordance with relevant nationality legislation; and iii. there being no other reasons—as set out below—for refusing a passport. IPS may make any checks necessary to ensure that the applicant is entitled to a British passport. A passport application may be refused or an existing passport may be withdrawn. These are the persons who may be refused a British passport or who may have their existing passport withdrawn: i. a minor whose journey was known to be contrary to a court order, to the wishes of a parent or other person or authority in whose favour a residence or care order had been made or who had been awarded custody; or care and control; or ii. a person for whose arrest a warrant had been issued in the United Kingdom, or iii. a person who was wanted by the United Kingdom police on suspicion of a serious crime; or a person who is the subject of: • a court order, made by a court in the United Kingdom, or any other order made pursuant to a statutory power, which imposes travel restrictions or restrictions on the possession of a valid United Kingdom passport; or • bail conditions, imposed by a police officer or a court in the United Kingdom, which include travel restrictions or restrictions on the possession of a valid United Kingdom passport; or • an order issued by the European Union or the United Nations which prevents a person travelling or entering a country other than the country in which they hold citizenship; or • a declaration made undersection 15 of the Mental Capacity Act 2005 . iv. 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 has been repatriated from abroad at public expense and their debt has not yet been repaid. This is because the passport fee supports the provision of consular services for British citizens overseas; or • 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. • There may be circumstances in which the application of legislative powers is not appropriate to the individual applicant but there is a need to restrict the ability of a person to travel abroad. The application of discretion by the Home Secretary will primarily focus on preventing overseas travel. There may be cases in which the Home Secretary believes that the past, present or proposed activities—actual or suspected—of the applicant or passport holder should prevent their enjoyment of a passport facility whether overseas travel was or was not a critical factor.”
“(1) The Secretary of State may by notice (a “TPIM notice”) impose specified terrorism prevention and investigation measures on an individual if conditions A to E in section 3 are met. (2) In this Act “terrorism prevention and investigation measures” means requirements, restrictions and other provision which may be made in relation to an individual by virtue of Schedule 1 (terrorism prevention and investigation measures). (3) In this section and Part 1 of Schedule 1 “specified” means specified in the TPIM notice.”
“(1) Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity (the “relevant activity”). (2) Condition B is that some or all of the relevant activity is new terrorism-related activity. (3) Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual. (4) Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual. (5) Condition E is that – (a) the court gives the Secretary of State permission under section 6, or (b) the Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission. (6) In this section “new terrorism-related activity” means – (a) if no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act); (b) if only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; or (c) if two or more TPIM notices relating to the individual have been in force, terrorism-related activity occurring after such a notice came into force most recently.” (a) the court gives the Secretary of State permission under section 6, or (b) the Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission. (a) if no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act); (b) if only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; or (c) if two or more TPIM notices relating to the individual have been in force, terrorism-related activity occurring after such a notice came into force most recently.”
“act” and “conduct” include omissions and statements; “act of terrorism” includes anything constituting an action taken for the purposes of terrorism, within the meaning of theTerrorism Act 2000 (see section 1(5) of that Act); … “terrorism” has the same meaning as in theTerrorism Act 2000 (see section 1(1) to (4) of that Act);”
“1. Terrorism: interpretation. (1) In this Act “terrorism” means the use or threat of action where– (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it– (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied. (4) In this section– (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” (1) In this Act “terrorism” means the use or threat of action where– (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it– (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied. (4) In this section– (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”
“(1) The Secretary of State may impose restrictions on the individual leaving a specified area or travelling outside that area. (2) The specified area must be – (a) the United Kingdom, or (b) any area within the United Kingdom that includes the place where the individual will be living. (3) The Secretary of State may, in particular, impose any of the following requirements- (a) a requirement not to leave the specified area without the permission of the Secretary of State; (b) a requirement to give notice to the Secretary of State before leaving that area; (c) a requirement not to possess or otherwise control, or seek to obtain, any travel document without the permission of the Secretary of State; (d) a requirement to surrender any travel document that is in the possession or control of the individual. (4) “Travel document” means – (a) the individual’s passport, or (b) any ticket or other document that permits the individual to make a journey by any means – (i) from the specified area to a place outside that area, or (ii) between places outside the specified area. (5) “Passport” means any of the following – (a) a United Kingdom passport (within the meaning of theImmigration Act 1971 ); (b) a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom, or by or on behalf of an international organisation; (c) a document that can be used (in some or all circumstances) instead of a passport.”
“The constitutional principle is that when the power of the executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the executive no longer derives its authority from the Royal prerogative of the Crown but from Parliament, and that in exercising such authority the executive is bound to observe the restrictions which Parliament has imposed in favour of the subject.”
“If the whole ground of something which could be done by the prerogative is covered by statute, it is the statute that rules. On this point I think the observation of [Swinfen Eady MR] is unanswerable. He says: ‘What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative.”
“It is quite obvious that it would be useless and meaningless for the legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the legislature (in the absence of compelling words) an intention so absurd. It was suggested that when a statute is passed empowering the Crown to do a certain thing which it might theretofore have done by virtue of its prerogative, the prerogative is merged in the statute. I confess I do not think the word ‘merged’ is happily chosen. I should prefer to say that when such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same – namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal prerogative may theretofore have been.”
“The Legislature, by appropriate enactment, can deal with such a subject-matter as that now in question in such a way as to abate such portions of the prerogative as apply to it. It seems also to be obvious that enactments may have this effect, provided they directly deal with the subject-matter, even though they enact a modus operandi for securing the desired result, which is not the same as that of the prerogative. If a statute merely recorded existing inherent powers, nothing would be gained by the enactment, for nothing would be added to the existing law. There is no object in dealing by statute with the same subject-matter as is already dealt with by the prerogative, unless it be either to limit or at least to vary its exercise, or to provide an additional mode of attaining the same object.”
“...it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute … The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body. The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them. But under the principle in Attorney-General v. de Keyser's Royal Hotel Ltd. [1920] A.C. 508, if Parliament has conferred on the executive statutory powers to do a particular act, that act can only thereafter be done under the statutory powers so conferred: any pre-existing prerogative power to do the same act is pro tanto excluded.”
“45 It is accepted that the statute does not contain any express words that abrogate the taxpayer's common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect. A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions[2000] 2 AC 428 , 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”
“When one looks at the Act of 1971 and its elaborate code in relation to licensing and the other matters entrusted to the Authority, can it be said that where the Authority, in pursuance of statutory powers expressly granted by Parliament, has granted to the plaintiffs a valuable commercial asset in the form of an air transport licence to operate a service from Stansted to New York (a licence which the Authority can be directed by the Secretary of State to revoke in circumstances falling within section 4 of the Act but not otherwise, and certainly not, as we have held, by the giving of the guidance already considered) a licence granted after a full and careful hearing before the Authority in the express expectation of the obtaining of reciprocal rights from the United States Government under the Bermuda Agreement, a prerogative power nevertheless survives in the Crown to nullify that licence by withdrawing the plaintiffs' designation under the Bermuda Agreement with its attendant advantages, the securing of which was one of the avowed purposes of the Authority when it granted the plaintiffs that licence?”
“I do not think that the Attorney-General's argument that the prerogative power and the power under the municipal law can march side by side, each operating in its own field, is right. The two powers are inextricably interwoven. Where a right to fly is granted by the Authority under the statute by the grant of an air transport licence which has not been lawfully revoked and cannot be lawfully revoked in the manner thus far contemplated by the Secretary of State, I do not see why we should hold that Parliament in 1971 must be taken to have intended that a prerogative power to achieve what is in effect the same result as lawful revocation would achieve, should have survived the passing of the statute unfettered so as to enable the Crown to achieve by what I have called the back door that which cannot lawfully be achieved by entry through the front. I think Parliament must be taken to have intended to fetter the prerogative of the Crown in this relevant respect. I would therefore dismiss this appeal.”
“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give effect to them.”
“Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.”
“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. 3. 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.”
“Engagement/breach of Directive 2004/38 15. As I have said, Mr Eadie did not really pursue what had at one time been the SSHD’s primary argument, that the cancellation of the passport did not engage the rights under Articles 4 and 27 of the Directive. It is obvious that they do. There is no relevant distinction between “engaging” and “breaching” here. Unless justified within the terms of the Directive, the cancellation of the passport breaches it. 16. After all, the avowed aim of the cancellation was to make it very difficult for MR to travel abroad and it is clear that it would have that effect. Although an identity card or other means of proving nationality can be used, the UK does not issue identity cards for the purpose of proving nationality; and a UK citizen relying on other means of proving nationality than a passport will encounter difficulties in air and Eurostar travel, as Mr Chamberlain QC for the Claimant demonstrated by his researches on the internet for what airlines and Eurostar required.Case C-215/03 Oulane v The Netherlands Minister for Aliens and Integration[2005] QB 1055 ECJ, at [22-28], which affirms that where nationality can be proved unequivocally by means other than a passport or identity card it has to be recognised for the purposes of Directive 2004/38, also points out that the requirement for a passport or valid identity card is aimed at simplifying the resolution of problems relating to the right of residence for citizens and national authorities, and at establishing a maximum which Member States can require. 17. The language of the Directive is not confined to barring a legal prohibition on departure from the country of nationality, unless the derogation in Article 27 is made out. The right is to reside and move freely. There is an obligation to issue a passport to nationals but it may be “restricted”; Article 27. It is restriction and not only prohibition which engages the derogation in Article 27. Some CJEU authorities refer to “prohibition” but that is because that is the nature of the restriction with which it was dealing; the Court was not confining “restriction” to “prohibition”.”
“... the concept of public policy in the context of the Community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of movement for workers, must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community. Nevertheless, the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another, and it is therefore necessary in this matter to allow the competent national authorities an area of discretion within the limits imposed by the Treaty.”
“Article 30 …. (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.”
“24. It is important to recall that para 65 is concerned with disclosure of the grounds on which the decision was based. The judgment moves on to consider the question of disclosure of the related evidence. It states in para 66 that the weighing up of the right to effective judicial protection against the necessity to protect national security, on which the conclusion set out in para 65 is founded, “is not applicable in the same way to the evidence underlying the grounds”
“Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.”
“Article 31 Procedural safeguards 1. The person 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 decision 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.”
“The judicialisation of dispute procedures, as guaranteed by article 6(1), is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind.”
“54. As the court said in Tsfayo’s case, para 46, the issues in cases such as Runa Begum’s case[2003] 2 AC 430 required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. That was not so here, as no specialist knowledge was required to determine the issue whether or not the letters were received by the applicants. 55. The way the reviewing officers approached their task in these cases shows very clearly how the scheme works in practice. For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined. An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation’s suitability. It was, as Lord Bingham put it in Runa Begum’s case[2003] 2 AC 430 , para 9(2), a staging post on the way to a much broader judgment that had to be made. These cases are quite different from Tsfayo’s case 48 EHRR 457, where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered. In these circumstances I would hold that the ratio of the decision in Runa Begum’s case should be applied and that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).”
“76. Both the Commission and the court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” (“plaine jurisdiction” in French) will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it (see, amongst many authorities, Zumtobel v Austria (A/268-A)(1994) 17 EHRR 116 at [31]-[32]; Bryan, cited above at [43]-[47]; Miller v Austria (26507/95,23 November 1999 ; and Crompton v United Kingdom (42509/050)27 October 2009 at [71] and [79] 77. In adopting this approach the Convention organs have had regard to the fact that in administrative-law appeals in the Member States of the Council of Europe it is often the case that the scope of judicial review over the facts of a case is limited and that it is the nature of review proceedings that the reviewing authority reviews the previous proceedings rather than taking factual decisions. It can be derived from the relevant case law that it is not the role ofart.6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by the administrative authorities on grounds of “expediency” and which often involve specialised areas of law (for example, planning- Zumtobel at [31] and [32], and Bryant at [47], both cited above; environmental protection- Alatulkkila v Finland (33538/96) at [52]. [28] July 2005; regulation of gaming- Kingsley v United Kingdom (35605/97) at [32] ECHR 2002-IV).”
“Article 41 Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: - the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; ….”
“… But the judge came to the conclusion that the fair application of the policy required that if a passport was refused because a warrant was outstanding against the applicant, inquiry had to be made of the applicant before refusing a passport, as to whether he had anything to say. In my judgment the judge fell into error in concluding that that was required for the fair exercise of his discretion. It seems to me that the Secretary of State, in the fair exercise of his discretion, was entitled to refuse the passport but to give his reason for so doing, and the fair giving of the reason, if the reason be that there is a warrant for the applicant’s arrest outstanding, was to tell him when the warrant was issued and what offence was charged. Once he has done that he has all but discharged his duty, but he should, when notifying the applicant that that was the reason for refusing the passport, tell him that if there were any exceptional grounds which might call for the issue of a passport, he would consider them.”
“46. As I have noted above, part of Mr Southey’s submissions as to the disclosure which should have been made to the claimant prior to the refusal of a travel document, was dependent on him making good the other procedural ground of challenge. In short, he argued, if the claimant is entitled to further information as to the SSHD’s national security case as part of his right to an effective judicial challenge, that further detail should have been supplied in advance of the administrative decision-making. I am about to turn to consider that second procedural challenge now, but for reasons which I give, it is not successful. Accordingly, it can give the claimant no further for this first procedural challenge. In my judgment, on the contrary, it further undermines the first procedural challenge, If, as I conclude, the SSHD is entitled to withhold material whose disclosure would harm the interests of national security from the claimant in the course of this litigation, it would be illogical if she was obliged to disclose that same information to the claimant in advance of taking the decision. Fayed demonstrates that the common law does not require such a conclusion. Article 41 allows the EU institutions to withhold access to the file if this is necessary to respect the legitimate interests of confidentiality and of professional and business secrecy. I agree with Mr Blake that, so far as article 41 embodies a general principle of good administration that must be followed by member states, they must likewise be permitted to withhold disclosure which would harm national security.”
“The task of the court is the familiar one of evaluating whether the decision was one open to the Secretary of State on the information available to her, or otherwise considering conventional pubic law grounds of challenge. That is not to say that the fact that an individual has previously been issued with a British passport is not important in evaluating whether the decision reached was a rational one, in public law terms. It is unhelpful in this context to speak in terms of burdens of proof. The reality is that, having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences. No less would be required to satisfy a rationality test.”
“59. Where does that leave us? Firstly, that there may be material obtained and used by the Security Service or other agencies which represents an incursion on LPP is simply not new. Secondly, we fully accept the importance of legal professional privilege for the reasons we have indicated. Nevertheless we accept that it is of particular importance in SIAC, given the nature of this jurisdiction. We accept that the safeguards must be rigorous. 60. Nevertheless, we consider that proceedings which represent a direct challenge to the procedures and safeguards, including the successive policies now revealed within the Security Service, are for the IPT, not for us. 61. However, that does not preclude an application in SIAC for an abuse of process, where such application is founded in the specific facts revealed to SIAC. SIAC must have the power to protect itself from abuse. If, on the facts, it could be shown in a given case that information was obtained in breach of the safeguards, obtained deliberately in an unlawful manner, then that might well be a relevant matter for SIAC in an abuse of process application. But, provided that the material is not sought to relied on, the only form of abuse which would be relevant would be what is describes as Bennett/Mullen abuse after the well known cases of R(Bennett) v Horseferry Road Magistrates [1994] 1AC A2 and R v Mullen[1999] 2 Cr.App.R. 143 . Where material is not relied on, and cannot therefore affect the outcome on the evidence which is relied on, it would only be when misconduct by the authorities was so bad or so blatant that Bennett/Mullen abuse arose, that SIAC could consider evidence bearing on the obtaining of information not sought to be deployed. 62. SIAC’s principal concern must be to ensure that its own process is protected from the use of material obtained by an incursion on LPP. We accept there exists a hypothetical risk that material gained in breach of LPP might be used to gain a tactical advantage, although not introduced into evidence. As it was put by Mr Southey, it might be an expression of concern about the strength of this or that part of an appellant’s position, which he says might stimulate those who represent the Secretary of State to mount an argument or to raise a point. We have considered that with some care but we find it a tenuous proposition. If it was demonstrated, then, of course, it might be the basis for an appropriate application. But in order for it to arise, in practice, the intercepted material would need to be brought before the lawyers with conduct, then, of course, all sorts of other difficulties would arise. It is precisely to avoid that risk that the policies that we have seen appear to have been drafted. The alternative is that tactical suggestions based on the LPP material might cross the barrier to those with conduct. That is a theoretical risk, but no more.”