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QX v Secretary of State for the Home Department
Factual and Procedural Background
The Claimant, a British citizen who resided in Syria between 2014 and 2018, became subject to a Temporary Exclusion Order (“TEO”) issued by the Defendant under the Counter-Terrorism and Security Act 2015. The TEO was initially granted ex parte by the High Court on 26 November 2018, relying on intelligence that the Claimant had aligned with an al-Qaeda-affiliated group (“the Syria allegation”). After the Claimant’s forced return to the United Kingdom in January 2019, the Defendant imposed three principal obligations under section 9 of the 2015 Act: daily reporting to a police station, residence notification, and mandatory attendance at mentoring/theological sessions.
The TEO expired on 25 November 2020, but the Claimant had already been convicted (March 2021) of three breaches of the daily reporting obligation. In November 2019 he applied under section 11(2)(d) for review of the reporting and appointments obligations, asserting they violated Article 8 ECHR. Disclosure disputes prevented a merits hearing and generated three interim rulings by Judge Farbey. She held that Article 6 applied to the “obligations review” but not to the “imposition review” (i.e., review of whether conditions A and B for the TEO were met or continued).
The Court of Appeal reversed that aspect of Judge Farbey’s decision, finding Article 6 applicable to the imposition review as well. The present appeal by the Defendant to the Supreme Court concerned only that question. The Supreme Court considered only open material, not the closed national-security evidence.
Legal Issues Presented
- Whether Article 6(1) ECHR applies to a section 11 imposition review of the Defendant’s decisions that (a) conditions A and B were met when the TEO was imposed and (b) condition B continued to be met during its currency.
- If Article 6(1) does apply, whether the disclosure standard set out in Secretary of State v AF (No 3) must be satisfied in the imposition review as well as in the obligations review.
Arguments of the Parties
Claimant's Arguments
- The imposition review is “directly decisive” of the lawfulness of the section 9 obligations, which admittedly interfere with the Claimant’s Article 8 rights; therefore Article 6(1) governs both reviews.
- Without AF (No 3)-compliant disclosure at the imposition stage, the Claimant cannot fairly contest the Syria allegation that underpins both the TEO and the obligations.
Defendant's Arguments
- The right of abode is not a “civil right” under Article 6; thus Article 6 is not automatically engaged by the TEO itself.
- The imposition review is only “potentially” decisive of the obligations: quashing the TEO would end the obligations, but upholding it would not itself determine their lawfulness, which is separately reviewed under section 11(2)(d). Accordingly, Article 6 need not apply to the imposition review.
- If Article 6 is inapplicable, the stringent disclosure duties of AF (No 3) do not bind the Defendant at the imposition stage, permitting reliance on closed material not shared with the Claimant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Secretary of State v AF (No 3) [2009] UKHL 28 | Minimum disclosure required for a fair hearing where national-security evidence is withheld. | Adopted as the disclosure benchmark whenever Article 6 applies to a section 11 review. |
| Pomiechowski v District Court of Legnica [2012] UKSC 20 | Treated right of abode as a civil right; Article 6 applied to extradition of a citizen. | Re-examined; majority reasoning doubted but distinguished on facts. |
| Ferrazzini v Italy (2001) 34 EHRR 45 | “Hard-core” public-authority prerogatives fall outside Article 6. | Used to contrast TEO obligations (which are not hard-core) with imposition of the TEO itself. |
| Maaouia v France (2000) 33 EHRR 42 | Immigration measures concerning aliens do not engage Article 6 civil rights. | Considered but distinguished when assessing citizens’ rights. |
| R (G) v Governors of X School [2012] 1 AC 167 | Article 6 may extend to earlier proceedings if their outcome substantially influences later determination of civil rights. | Framework for analysing whether imposition review and obligations review are “sufficiently linked.” |
| Ruiz-Mateos v Spain (1993) 16 EHRR 505 | Constitutional proceedings fall within Article 6 if capable of affecting later civil proceedings. | Analogy supporting inclusion of imposition review under Article 6. |
| MB [2008] 1 AC 440 | Common-law right to a fair trial independently of Convention rights. | Cited to underline domestic fairness principles. |
| Bancoult (No 2) [2009] 1 AC 453 | Recognition of common-law right of abode. | Referenced in debate over nature of the right of abode. |
Court's Reasoning and Analysis
The Supreme Court, per Judge Reed, assessed whether the imposition review is “directly decisive” of the Claimant’s civil rights engaged by the section 9 obligations.
- Right of Abode Issue: After surveying domestic and Strasbourg jurisprudence, the Court doubted but did not overturn the conclusion in Pomiechowski that the right of abode is itself a civil right; instead, it proceeded on the alternative ground below.
- Functional Link: The TEO is a prerequisite for, and in practice inseparable from, the obligations. Because quashing the TEO would automatically eliminate those obligations, the imposition review has a “substantial influence or effect” on the Claimant’s Article 8 rights.
- Procedural Fairness: If Article 6 did not apply at the imposition stage, the Defendant could rely on closed evidence to uphold the TEO, thereby fixing the factual matrix for the obligations review while withholding that evidence from the Claimant. Such asymmetry would undermine the fairness of the entire composite procedure.
- Applying the principles in Ruiz-Mateos and R (G), the Court held that the two reviews are “so interrelated that to deal with them separately would be artificial,” engaging Article 6 for both.
- Disclosure Standard: Because Article 6 applies, the AF (No 3) minimum-core disclosure requirement extends to the imposition review, ensuring the Claimant receives sufficient information about the Syria allegation to give effective instructions.
Holding and Implications
Appeal DISMISSED.
The Supreme Court affirmed that Article 6(1) ECHR governs a section 11 imposition review whenever the related section 9 obligations interfere with civil rights. Consequently, the Defendant must provide AF (No 3)-compliant disclosure of the evidence supporting the Syria allegation in both the imposition and obligations reviews. The decision reinforces the indivisibility of fair-trial guarantees across interlinked national-security proceedings but does not create new precedent on whether the right of abode is inherently a “civil right.”
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