England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/03/2017

Lord Justice Bean:

1. This is the judgment of the Court to which we have both contributed. Like R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] 2 WLR 583 it concerns the use of the Royal Prerogative. But there the resemblance ends.
2. The Claimant is a British national. He has lived in the UK since the age of two. He acknowledges in his witness statement that in the period from 2008 to early 2011 he had some involvement with two organisations now proscribed under the Terrorism Act 2000, Al Muhajiroun ("ALM") and Muslims Against Crusades ("MAC"); he describes MAC as having been affiliated to ALM. He also accepts that he was "dubbed the spokesperson for MAC" and that he made various public appearances in association with MAC under the pseudonym Abu Rayah. He states that "while I remain religious, my views are mainstream and moderate. I regret my past association and the publicity I had engaged in."
3. From September 2011 to October 2012 the Claimant worked in the National Health Service. After this he had difficulty in finding a job. He states that at the end of 2013 he decided to try to set up his own business; and that on the advice of a friend who had a wholesale confectionery business he explored options in that field.
4. The Claimant travelled to Turkey on 11 February 2014. He claims this was to investigate the possibility of setting up a confectionery business. He accepts that he did not establish any companies while he was there. Rather, he states, after a two week family holiday, he used the trip to research the market.
5. The Claimant had entered Turkey on a visa valid for 90 days. On 26 June 2014, the Claimant was arrested in Turkey for overstaying his visa. He opted to be removed to Sweden rather than to the UK. After a few days in Sweden, he travelled to Egypt, where he states that he was married to a British woman (his previous marriage having broken down while he was in Turkey). He and his new wife then went to Greece, and from there drove to Bulgaria.
6. On 14 November 2014, the Claimant was deported from Bulgaria on national security grounds. He was advised by the British Consulate that he had been banned from Turkey for 10 years. On his return to the UK he was interviewed at the airport under Schedule 7 to the Terrorism Act 2000.
7. On 9 February 2015, the Claimant travelled to Prague. He states that this was to investigate the possibility of investing in a business there. On his return to the UK he was again interviewed under Schedule 7.
8. On 18 March 2015, he travelled to Warsaw. He states that this was to inspect potential sites for storage, and potential companies to export goods to expand the business. On his return, he was served by the Police with a letter from HM Passport Office dated 19 March 2015, which cancelled his passport. It stated, so far as is relevant:

"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). On behalf of the Home Secretary, the Minister of State for Immigration and Security 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 future in order to engage in terrorism-related activity. You were deported from Bulgaria to the UK on national security grounds in November 2014. It is assessed that these activities 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 Her Majesty's Passport Office requests that you return the passport to the police officer delivering the 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."

9. A letter before claim was served on 1 June 2015. After some preliminary correspondence the Defendant's solicitor wrote on 24 June 2015 to say that the Defendant was carrying out a review of the decision to cancel the Claimant's passport.
10. The result of that review, communicated by letter dated 27 July 2015, was that HM Passport Office upheld the decision to cancel the Claimant's passport, for the reasons previously given. This review decision was taken not by a Minister but by Mr Nick Toogood, head of the Counter Terrorism Pursue Unit in the Office for Security and Counter Terrorism within the Home Office.
11. On 5 October 2015 these proceedings were issued seeking judicial review of both the March 2015 and July 2015 decisions.
12. On 24 March 2016 Cranston J gave directions in the case. One of these, made by consent of both parties, was an order pursuant to section 6(2) of the Justice and Security Act 2013. Special advocates were duly appointed. Part of the hearing before us was conducted under the closed material procedure provided for under the 2013 Act and Part 82 of the Civil Procedure Rules, and is the subject of a separate, closed, judgment. Cranston J also ordered by consent that there was to be a "rolled-up" hearing before a Divisional Court. We grant permission for judicial review.
13. On 29 July 2016 a document containing the gist of the Defendant's case was served on the Claimant's solicitors and is appended to this judgment.

HMG Policy on the Issuing, Withdrawal or Refusal of Passports

14. A Written Ministerial Statement (referred to as "the WMS" or "the Passport Policy") laid before both Houses of Parliament on 25^th April 2013 states as follows:-

"The Secretary of State for the Home Department (Theresa May): The British passport is a secure document issued in accordance with international standards set by the International Civil Aviation Organisation. The British passport achieves a very high standard of security to protect the identity of the individual, to enable the freedom of travel for British citizens and to contribute to public protection in the United Kingdom and overseas.

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) acting on behalf of the Home Secretary. The criteria under which IPS 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:

[…]

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."

[emphasis added]

Grounds of Claim

15. Martin Chamberlain QC and Tom Hickman for the Claimant challenge the decisions of March and July 2015 (describing both as "the Decision") for the following reasons:-

"1. First, the reasons that have been given for the Decision in a "gist" disclosed to [MR] in July 2016 show that the decision was flawed on public law grounds. It was illogical, not properly supported by evidence and made without reference to relevant considerations. Furthermore, the reasons given for the Decision show that it is not in conformity with the Passport Policy itself in that the withdraw of [MR]'s passport has not been shown to be "necessary and proportionate" as required by the policy…...

2. Second, the Decision represents a serious restriction on [MR]'s rights as an EU citizen, in particular the rights conferred by Directive 2004/38/EC on the right of citizens of the Union and their family members to reside freely within the territory of the Member States ("the Citizen's Rights Directive"), as well as Treaty rights of free movement. The Decision must be justified under Article 27 of the Citizen's Rights Directive. These requirements of justification were elaborated in Case C-430/10 Gaydarov [2011] ECR I-11637 and associated case law ("the Gaydarov criteria"). The Decision fails to conform to the Gaydarov criteria because:

(1) The Decision is not based on a genuine, present and sufficiently serious threat to the fundamental interests of society.

(2) The Decision goes beyond what is necessary and proportionate in particular in light of its indefinite nature.

(3) The Decision is not subject to effective judicial review of the factual basis for the decision.

3. Third, the Decision is an abuse of power because,

(1) The Passport Policy prohibits use of the prerogative power unless it would be inappropriate to use applicable statutory powers. The Secretary of State has not demonstrated that it would be inappropriate.

(2) The Decision circumvents statutory protections for the individual."

16. The statutory powers to which Mr Chamberlain's third ground of claim refers are those contained in the Terrorism Prevention and Investigation Measures Act 2011 ("the TPIM Act"). Shortly before the oral hearing in this case the lawfulness of using the prerogative in a case where the Secretary of State could exercise TPIM powers was considered by this court (Hamblen LJ and Cranston J) in R (XH) v SSHD [2016] EWHC 898 (Admin). The court held (at paragraph 67):-

"… we are in no doubt that it is not to be implied that Parliament intended to abrogate the Royal Prerogative power in relation to terrorism related activities when it enacted the TPIM Act."

The court also held that the WMS on the use of the Prerogative to withdraw or refuse a passport does not infringe the principle of legal certainty: see paragraphs 70-71.

17. Decisions of one Divisional Court are technically not binding on another; but Mr Chamberlain QC realistically accepted, while reserving his position should the present case go further, that he would not succeed in persuading us to depart from such a recent and fully reasoned decision of this court. In the course of the oral hearing before us on 1 and 2 December 2016 we were informed that XH's appeal to the Court of Appeal was to be heard on 13 and 14 December 2016. We therefore decided to reserve judgment until after the Court of Appeal decision in XH was handed down and to give the parties to the present case the opportunity to make further submissions in writing in the light of that decision.
18. The Court of Appeal (Sir Terence Etherton MR, Lloyd Jones and Sales LJJ) handed down judgment in XH on 2 February 2017 ([2017] EWCA Civ 41) dismissing the Claimants' appeal. They held at paragraph 88 that "it is clear that there remains vested in the executive the prerogative power to cancel a passport as described in the WMS".
19. Mr Chamberlain and Mr Hickman submit that the Court of Appeal in XH did not consider the argument that the WMS itself prohibits use of the prerogative power to withdraw a passport unless the Secretary of State can demonstrate in the individual case that it would be inappropriate to use the statutory powers under TPIM. This point, which does not appear to have been raised by any of the experienced advocates appearing for XH and AI, is not one which we can accept. The WMS does not contain such a prohibition. The sentence stating that "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" is a statement of fact: it does not impose an additional hurdle for the Secretary of State to surmount. We accept the submission on behalf of the Defendant that the availability of other statutory powers is relevant, but only to the assessment of whether withdrawal of the passport could be considered necessary and proportionate. We also note that in XH the Court of Appeal (at paragraph 117) noted that a TPIM would not have been equally effective because of the two year limit on its duration and the need for evidence of new terrorism-related activity before a further order could then be made.

Was the decision to withdraw the Claimant's passport flawed on public law grounds?

20. We deal first with the original decision taken in March 2015. The principal reasons set out in the gist can be summarised as follows:- (a) the Defendant assessed that the Claimant may continue to maintain a close association with members of ALM and may continue to play a significant role within that group; (b) the Defendant also assessed that between his arrival in Turkey in February 2014 and his arrest in June 2014 he travelled to Syria to engage in terrorism-related activity "likely including fighting"; (c) he may have associated with other ALM members while in Syria; (d) he was deported from Turkey and later from Bulgaria in 2014; (e) it was assessed at that stage that the Claimant's trip to Prague in 2015 was a "dry run" to conduct reconnaissance of UK border security; (f) it was assessed that should his passport be returned he may travel to engage in terrorism-related activity in Syria and may use his contacts with Islamist extremists interested in that country.
21. We cannot agree with Mr Chamberlain's submission that the decision of March 2015 was illogical, or not properly supported by evidence, or made without reference to relevant considerations; nor that it failed to conform with the policy set out in the 2013 WMS by being anything other than "necessary and proportionate". We consider that in the present case the Minister of State was entitled to take the view that given the assessment of the Claimant's activities, association and travel (to Syria and elsewhere) and the perceived risk of his seeking to travel to Syria again the withdrawal of his passport was a proportionate step, and was also necessary in the sense that there was no other reliable way of preventing him from leaving the country.

Was the review decision of July 2015 flawed on public law grounds?

22. Mr Chamberlain has two linked arguments with which to attack the review decision which do not apply to the original decision. The first is that the assessment placed before the Minister in March 2015 that the Claimant's trip to Prague the previous month had been a "dry run" to test border security was no longer maintained. The second is that since the original decision was made personally by a Minister the review decision should similarly have been taken by a Minister, particularly in view of the abandonment of reliance on the dry run argument.
23. As to the first point, we were referred to R (FDA and others) v Secretary of State for Work and Pensions [2013] 1 WLR 444. Lord Neuberger of Abbotsbury MR said at paragraphs 67-68:-

"Where a decision-maker has taken a legally irrelevant factor into account when making his decision, the normal principle is that the decision is liable to be held to be invalid unless the factor played no significant part in the decision-making exercise……. Thus, in Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P & CR 306, 325–326, Purchas LJ (with whom the other two members of the Court of Appeal agreed) approved an observation of Forbes J in R v Rochdale Metropolitan Borough Council, Ex p Cromer Ring Mill Ltd [1982]  3   All ER  761, 770, explaining that a decision would not be set aside where the irrelevant factor was "insignificant or insubstantial", as opposed to a case where the irrelevant factor's "influence was substantial.

Even where the irrelevant factor played a significant or substantial part in the decision-maker's thinking, the decision may, exceptionally, still be upheld, provided that the court is satisfied that it is clear that, even without the irrelevant factor, the decision-maker would have reached the same conclusion. Thus, in the Simplex case 57 P & CR 306, 326, Purchas LJ approved the following passage in the judgment of May LJ in R v Broadcasting Complaints Commission, Ex p Owen [1985]  QB  1153, 1177:

"Where the reasons given by a statutory body for taking … a particular course of action are not mixed and can clearly be disentangled, but where the court is quite satisfied that even though one reason may be bad in law, nevertheless the statutory body would have reached precisely the same decision on the other valid reasons, then this court will not interfere by way of judicial review.

In R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR  3315, para 10 (a different) May LJ said this:

"Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision."

24. Counsel were agreed that these well known observations now have to be read in the light of section 31(2A) of the Senior Courts Act 1981, which came into effect on 13 April 2015. This provides that the High Court must refuse to grant relief on an application for judicial review if it appears to the court "to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
25. We consider that, looking at the contents of the gist as a whole, the trip to Prague did not play a significant or substantial part in the Minister's thinking and that it is highly likely, indeed almost inevitable, that even without the reference to it the decision would have been the same. It is part of the narrative but, in our view, only a very minor part.
26. For the same reason we do not consider that it was necessary for Mr Toogood to refer the case back to the Minister of State or the Secretary of State before upholding it on review. There is no rule that where a Minister has taken a decision in an individual's case every future decision in the same case must be referred back to a Minister. We suggested to Mr Chamberlain, and he agreed, that it is a question of degree. The Secretary of State or Minister of State, like any other senior decision maker at the head of a large and busy organisation, has to make decisions with the assistance of submissions and recommendations from junior officials. If new information comes to light which suggests that the previous submission was significantly misleading or that it has been falsified by subsequent events, then it may be necessary for the senior decision maker (or his or her successor) to reconsider the original decision personally. But that is not the case here. Mr Toogood took the view, we think entirely reasonably, that the "dry run" issue was not so significant as to require a further ministerial decision in the Claimant's case. It was not unlawful for that view to be taken.

Did either the March or July decision infringe the claimant's rights of free movement in EU law?

27. The Divisional Court in XH held that there was no breach of EU law in any of the respects put forward in that case; and the Court of Appeal have now taken the same view: see paragraphs 115-119. Mr Chamberlain, however, raises a line of authority in support of a point not argued in XH.
28. Before coming to the new point we should note that it was originally argued for the Defendant in the present case that since the withdrawal, cancellation of revocation of a passport by the use of the Royal Prerogative does not amount in law to a ban on travel, EU law is not engaged at all. This issue was raised in an interlocutory hearing in the present case before Ouseley J (R (MR) v Secretary of State for the Home Department [2016] EWHC 1622 Admin), in which he said:-

"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"."

29. This passage, with which we entirely agree, was cited with approval by the Divisional Court in XH. The Court of Appeal in XH took the same view, observing (at paragraph 118) that:

"….the whole purpose of the cancellation of the passport is to prevent XH from leaving the United Kingdom. The interference with XH's freedom of movement in the EU, if not absolute, is near absolute. A compelling justification is required for such interference."

30. Mr Chamberlain relied on the decision of the Fourth Chamber of the CJEU in Case C-430/10 Gaydarov v Director na Glavna direktsia "Ohranitelna politsia" pri Ministerstvo na vatreshnite raboti [2011] ECR I-11638. Mr Gaydarov, a Bulgarian national, was convicted in Serbia of the offence of unlawful transport of narcotic drugs. It cannot have been the most serious offence of this kind, because he was sentenced to nine months' imprisonment. On his release from prison in Serbia he returned to Bulgaria where he was served with notice of a police decision prohibiting him from leaving the country or holding a passport for two years. He challenged the decision on free movement grounds.
31. Article 27 of EU Directive 2004/38 (generally known as the Citizen's Directive) provides:-

"(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."

32. In its judgment the CJEU, having stated in the usual way that it would be for the referring court to make the necessary findings of fact, said at paragraph 40:-

"When making such an assessment, the referring court will have also to determine whether that restriction on the right to leave is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it. According to Article 27(2) of Directive 2004/38 and the Court's settled case law, a measure which restricts the right of freedom of movement may be justified only if it respects the principle of proportionality…."

33. The court went on in paragraph 41 to emphasise that "the person to whom such a measure is applied must have an effective judicial remedy" which "must permit of a review of the legality of the decision at issue as regards matters of both fact and law".
34. Mr Chamberlain drew our attention to the fact that Article 27(2) of the Directive requires restrictions of freedom of movement on the grounds of public policy or public security to be based "exclusively on the conduct of the individual concerned", as well as to the requirement of proportionality, and that the court in its judgment held that restrictions must be appropriate to ensure the achievement of the objective it pursues and must not go beyond what is necessary to obtain it. "Necessary", he submits, is a high threshold. As for the requirement for decisions to be based solely on personal conduct, the EFTA court in Wahl v Icelandic State [2014] 1 CMLR 29 held at paragraph 89 that :-

"… present association with an organisation associated with organised crime can only be taken into account insofar as the circumstances of the membership are evidence of personal conduct constituting a genuinely, present and sufficiently serious threat to one of the fundamental interests of society."

35. This line of case law (also including Byankov v Glaven sekratar na Ministerstvo na vatreshnite raboti: CJEU case C249/11) does not appear to have been cited to the Divisional Court in XH (though Gaydarov is briefly cited in the judgment of the Court of Appeal). We infer that the reason for this is these European authorities do not add anything to the requirements of the Defendant's Passport Policy itself. This states expressly that "a decision to refuse or withdraw a passport must be necessary and proportionate". As we have already stated, we consider that in this case it was.
36. We have noted that this court and the Court of Appeal in XH rejected the argument that the statutory powers available to the Secretary of State under the TPIM Act were an equally effective but less restrictive measure and that it was an abuse of power in domestic law terms for the Secretary of State to rely on the prerogative. Mr Chamberlain, however, referred us to the UK Supreme Court decision in R (Lumsdon) v Legal Services Board [2016] AC 697, which was not cited in XH. Lumsdon concerned the lawfulness of a proposed Quality Assessment Scheme for Advocates. By the time the case reached the Supreme Court, the remaining issue was whether the introduction of the scheme contravened EU law on free movement and the provision of services. Lord Reed and Lord Toulson cited the decision of the CJEU in Case C-55/94 (reference for a preliminary ruling from the Consiglio Nazionale Forense): Reinhard Gebhard v. Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, where the court said:-

"National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner. They must be justified by imperative requirements in the general interest. They must be suitable to securing the attainment of the objective which they pursue and they must not go beyond what is necessary to obtain it."

37. Lord Reed and Lord Toulson went on to say that the last two of the four requirements set out in Gebhard correspond to the two limbs of the proportionality principle. They added at paragraph 55 that in relation to these conditions "the court must determine whether the measure is suitable to achieve the legitimate aim in question and must then determine whether it is not more onerous than is required to achieve that aim if there is a choice of equally effective measures." At paragraph 61 they said that "the court has tended to examine closely (again depending somewhat on the context) the question whether other measures could have been equally effective but less restrictive of the freedom in question".
38. With respect to Mr Chamberlain, who put the case concisely and with his usual eloquence, these passages simply restate the requirements of necessity and proportionality. The objective which the defendant sought to obtain in the present case was that of preventing the claimant from travelling to Syria. The withdrawal of his passport did not go beyond what was necessary to obtain this objective. Once the argument of principle that the availability of a TPIM under the 2011 Act renders use of the prerogative unlawful is rejected, as the Divisional Court and Court of Appeal in XH held that it should be, the arguments based on EU law as interpreted either by the CJEU or by the UK Supreme Court in Lumsdon in truth add nothing.
39. Mr Chamberlain also drew our attention to the EU law requirement for a citizen whose passport is withdrawn to have an effective means of challenge both as to the law and as to the facts. The Divisional Court in XH considered and rejected (at paragraph 110) an argument that judicial review failed to satisfy this test because the Administrative Court does not generally find facts. The court, referring to Bubb v Wandsworth LBC [2011] EWCA Civ 1285, emphasised at paragraph 107 that "judicial review is a flexible process and the court can examine the facts in an appropriate case". The Court of Appeal agreed: [2017] EWCA Civ 41 at 135-147.
40. Mr Chamberlain had a different point, which is a complaint that on a judicial review application the court only considers decisions taken before the issue of proceedings and expressly challenged in the claim form in those proceedings. He referred us to Case C-482/01 Orfanopoulos v Land Baden-Wurttemberg (C-482/01) European [2004 ECR I-5257; [2005] 1 CMLR 18, in which the Fifth Chamber of the CJEU held that EU law "precludes a national practice whereby the national courts, in reviewing the lawfulness of the expulsion of a national of another Member State, may not take into consideration factual matters which occurred after the final decision of the competent authorities, which may point to the cessation or substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy."
41. Again, it is doubtful whether this decision takes the Claimant further than domestic law. In Secretary of State for the Home Department v MB [2007] QB 415 a Court of Appeal comprising the Lord Chief Justice, Master of the Rolls and President of the Queen's Bench Division referred to and agreed with these observations of Schiemann LJ in R v Secretary of State for the Home Department ex p Turgut [2001] 1 All ER 719:

"If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision."

42. In practice the Administrative Court and Divisional Court often do take into account matters which have occurred since the issue of proceedings without requiring the issue of a new claim, at any rate when that can be done without disruption to the litigation. But it is unnecessary to say more about this in the present case since there have been no developments favourable to the Claimant since the issue of proceedings which have been brought to our attention.

Conclusion

43. For these reasons we dismiss the application for judicial review.

"Gist" served on 29 July 2016

a) On 10 March 2015, the Secretary of State was invited to exercise the Royal Prerogative to cancel the Claimant's British passport on the grounds that he aspired to travel to Syria to engage in terrorism related activities. The decision was subject to review in July 2015 following correspondence from the Claimant's open representatives, The outcome of this review was that the decision was maintained.

b) 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.

c) 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.

d) This submission was discussed with colleagues. There were no dissenting views. OSCT finance colleagues agreed that exercising the Royal Prerogative in cases such as this has no immediate affordability impact.

e) The paragraphs below contain a summary of that submission:

f) The Claimant is a British national with access to Bangladeshi citizenship, born in Bangladesh in 1982, who currently resides in London.

g) The Claimant is believed to have an intention to travel to Syria for undesirable purposes and that there a national security need to disrupt such travel. The Claimant travelled to Turkey in February 2014 in connection with this aim.

h) Following his travel to Turkey in February 2014, the Claimant was subsequently arrested there in June 2014. It is assessed that between his arrival in Turkey and his arrest, the Claimant travelled to Syria to engage in terrorism-related activity, likely including fighting on behalf of an Islamist extremist group.

i) At the time of the decision to exercise the Royal Prerogative, the Claimant was assessed to have maintained (and may continue to maintain) a close association with members of the proscribed Islamist extremist group, Al Muhajiroun (ALM) for a significant period, notably a close, ongoing relationship with Anjem Choudary. It is also believed that the Claimant had previously played and may continue to play a significant role within ALM.

j) It is believed that members of ALM have travelled to ISIL controlled territory in Syria. Some of them are believed to have engaged in terrorism-related activity including fighting alongside ISIL and encouraging others to do so, and openly calling for attacks in the UK. For example:

Abu Rahin Aziz who travelled to Syria in March 2014. Aziz stated on his Twitter account in February 2015 that he was a "Citizen & Soldier of the Islamic State";

Haroon Ahmed Khurshid and Mohammed Haroon Saleem, who travelled to Istanbul, Turkey in November 2013. It is believed that Khurshid and Saleem travelled onward to Syria;

Siddhartha Dhar who left the UK while on bail following his arrest on 25 September 2014 and travelled to ISIL-controlled territory. Recent media reporting has stated that Dhar is the masked individual in an ISIL propaganda video released on 3 January 2016 depicting the murder of five individuals and threatening attacks in the UK;

Mohammed Rezaul Haque who, media reporting has indicated, travelled to Turkey in January 2014 and onwards to Syria. Furthermore, media reporting has stated that Hague may be one of the masked individuals alongside Dhar in the ISIL propaganda video released on 3 January 2016.

Omar All Hussain who travelled to Syria in December 2013 and joined ISL. On 20 August 2014, an interview with Hussain appeared on BBC Newsnight. During the interview, Hussain commented that he had been involved in the beheading of at least three or four individuals in Syria. Furthermore, Hussain has called on British Muslims to "rise up" against their own country;

k) Due to his association with ALM and his assessed travel to Syria between February and June 2014, the Claimant may have associated with other ALM members whilst located in Syria and shared in their activities; which may have included Aziz, Khurshid, Salaam, Hussain and/or Hague.

l) The Claimant was deported from Turkey to Sweden in June 2014, then travelled to Egypt, Greece and Bulgaria.

m) In October 2014, it is believed that the Claimant travelled to Bulgaria and intended to enter Turkey for onward travel to Syria to engage in terrorism-related activities.

n) In November 2014, the Claimant was deported from Bulgaria on national security grounds of which the Defendant did not have sight of.

o) The Claimant was interviewed under Schedule 7 of TACT upon his return from Bulgaria on 14 November 2014. The Claimant's account in his TACT interview on 14 November 2014 is not accepted. The Secretary of State considers that the Claimant deliberately withheld the fact of his travel to Syria.

p) It was previously assessed, however no longer assessed, that the Claimant's trip to Prague in 2015 was a dry run to conduct reconnaissance of UK border security. This runs counter to the assessment that the Claimant was planning to travel to Syria.

q) It is assessed that should his passport be returned, the Claimant may travel to engage in terrorism-related activity in Syria.

r) It is assessed that the Claimant has maintained an association with Islamist extremists interested in Syria. Should the Claimant seek to travel to Syria, he may use these contacts to re-engage in Islamist extremist activities.