Secretary of State for the Home Department v AH

In closed-material control-order proceedings, procedural fairness requires disclosure of the essential features of the Secretary of State’s grounds so that the controlled person can give meaningful instructions to the Special Advocates. There is no exception merely because the person may have no conceivable answer.

Whether restrictions amount to deprivation of liberty under Article 5 is an objective, fact-sensitive judgment. The length of the curfew is the starting point, but social isolation and the concrete situation of the controlled person are also important. A fourteen-hour curfew is not, by itself, determinative. The court must assess the combined effect of all relevant measures.

AH, an Iraqi national subject to a non-derogating control order under the Prevention of Terrorism Act 2005, challenged the order’s making, renewal and continuance. The order imposed a curfew, residence and geographical restrictions, monitoring requirements and other obligations.

The challenges concerned procedural fairness in the use of closed material, whether AH had been involved in terrorism-related activity, whether the restrictions engaged Article 5, and whether the order remained necessary and proportionate. The proceedings included a review of the original order and appeals concerning its renewal and the refusal to revoke it.

1. Procedural fairness. The court applied the approach stated in Secretary of State for the Home Department v AN [2008] EWHC 372 (Admin). At a minimum, the controlled person must know the essential features of the grounds for suspicion and be able to give instructions enabling the Special Advocates to challenge them. The possible exception for a person with no conceivable answer did not exist, following the reasoning in Secretary of State for the Home Department v AF (Number 2) [2008] EWHC 689 (Admin). That minimum standard was satisfied for the three determinative grounds.
2. Reasonable suspicion. The court found that AH knew or believed that BC was an Islamist extremist, had displayed security-conscious behaviour, and had assisted persons travelling to Pakistan for terrorism-related purposes. Findings that AH had suppressed the truth and lied were based on the totality of the open and closed material. The Secretary of State therefore had reasonable grounds to suspect involvement in terrorism-related activity.
3. Article 5. The court applied the principles identified in Secretary of State for the Home Department v JJ [2007] 3 WLR 642 and the linked cases. The assessment was objective and concerned the impact of the measures on a person in AH’s situation. The fourteen-hour curfew was the starting point, but the significant social isolation, unfamiliar residence, electronic tag, searches and criminal enforceability also required consideration. Prior detention, mental-health impact, employment and study difficulties, and the separate refusal of his wife’s entry were not material, or were relevant only to Article 8. The case was close to the borderline, but the order restricted liberty rather than deprived AH of it.
4. Articles 8 and 3. Article 8 was engaged, but the interference was justified by national-security requirements. Article 3 was not arguably engaged or breached.
5. Necessity. Giving appropriate deference to the Secretary of State’s assessment, as required by Secretary of State for the Home Department v MB [2007] QB 415, the court held that the making, renewal and continuance of the order were not flawed. The proceedings challenging the original and renewed order were dismissed, and the refusal to revoke the order was upheld.

The judgment records that AH had previously appealed to the Special Immigration Appeals Commission against deportation and had been acquitted of terrorism offences at Woolwich Crown Court. The present proceedings were first-instance review and appeal proceedings concerning control orders under the Prevention of Terrorism Act 2005.