R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett (Everett, Ex parte)

An exercise of prerogative power is not immune from judicial review merely because of its source. Reviewability depends on the power’s subject matter and justiciability. Refusal or non-renewal of a passport is an administrative decision affecting individual rights and freedom of travel, and is therefore reviewable.

Where a passport is refused because an arrest warrant is outstanding, fairness generally requires disclosure of when and where the warrant was issued and the alleged offence. The applicant should also be given an opportunity to advance compassionate or other special grounds for an exception to the policy. Judicial review remains discretionary, and relief may be refused where any procedural deficiency caused no prejudice and an order would produce no practical result.

The Secretary of State appealed from Mann J’s order of 2 December 1987 quashing the refusal to renew the respondent’s passport. The respondent, who lived in Spain, had been refused a standard passport because a United Kingdom arrest warrant was outstanding. He was offered an emergency passport permitting a single journey to the United Kingdom.

The respondent sought certiorari and mandamus, alleging procedural unfairness and an attempt to circumvent extradition arrangements. Mann J held that the prerogative discretion was reviewable and that the Secretary of State should have enquired whether there was any reason not to apply the general policy against issuing passports to persons subject to arrest warrants.

The central issues were whether a prerogative decision concerning a passport was justiciable, what fairness required when the policy was applied, and whether relief should have been granted despite the information subsequently received by the respondent.

1. Appeal allowed unanimously. The order for judicial review was refused. O’Connor LJ gave the principal judgment. Nicholls and Taylor LJJ agreed, and the appeal was allowed with costs.

2. Per O’Connor and Taylor LJJ, the refusal, withdrawal or non-renewal of a passport is amenable to judicial review. The G.C.H.Q. case [1985] A.C.374 established that the prerogative source of an administrative power does not itself exclude review. Reviewability depends on the subject matter and whether the issue is justiciable. Decisions involving treaties and other matters of high policy may fall outside judicial scrutiny, but passport decisions are ordinary administrative decisions affecting individual rights and freedom of travel.

3. The Secretary of State was entitled to maintain a general policy of refusing passports to persons for whose arrest a United Kingdom warrant had been issued. The policy nevertheless had to leave room for the exercise of the discretion in an individual case.

4. Per O’Connor LJ, with Nicholls LJ concurring, fair implementation generally required the applicant to be told when and where the warrant was issued and the offence alleged. This information would enable the applicant to challenge, for example, whether the warrant related to him. The precise requirements remained sensitive to the circumstances, including whether the applicant already possessed the necessary information.

5. Fairness also generally required the notification to indicate that compassionate or other special reasons for departing from the policy could be submitted and would be considered. The Secretary of State was not required to seek representations before the initial refusal. It was sufficient to give the material reasons and a genuine opportunity to put forward exceptional grounds.

6. The refusal letter did not provide all the information which fairness required. By the hearing before Mann J, however, the respondent knew the date, place and substance of the warrant, was legally represented, and had identified no error in the warrant or exceptional circumstance supporting the issue of a passport. Judicial review is discretionary. Since no injustice had resulted and reconsideration could produce only a barren result, relief should not have been granted.

7. There was no evidence supporting the allegation of a veiled extradition. Leave to cross-appeal on that issue was refused.

1. Court of Appeal: In [1988] EWCA Civ 7, the Secretary of State’s appeal was allowed unanimously with costs and the order for judicial review was refused.

2. High Court, Queen’s Bench Division: Mann J quashed the Secretary of State’s refusal to issue a passport and required the application to be reconsidered. No citation is stated in the judgment.