AE v Secretary of State for the Home Department

When reviewing obligations imposed by a control order, the court must make its own findings and subject each obligation to intense scrutiny. A degree of deference is nevertheless owed to the Secretary of State, particularly concerning national security, resources and alternative measures. The court must consider whether the obligation is necessary and proportionate and should explore less intrusive means of achieving the protective objective.

Practical education may be refused where the evidence shows that it would materially increase a person’s ability, confidence or opportunity to engage in terrorism-related activity. The proportionality inquiry includes the importance of the protective objective, rational connection and whether the measure goes no further than necessary.

AE, who was subject to a control order under sections 2 and 3 of the Prevention of Terrorism Act 2005, appealed against the Secretary of State’s refusal to permit him to attend AS-level Chemistry and Human Biology courses. The refusal was based on national security concerns arising from the practical training, confidence and access to materials that the courses would provide.

The court considered AE’s asserted previous medical and scientific education, the terrorism-related value of the courses, the existing restrictions imposed by his control order, proportionality, and whether the use of closed material infringed article 6 of the ECHR.

1. Appeal dismissed. The court also held that AE’s article 6 rights had not been infringed.
2. Applying MB v Secretary of State [2007] 1 QB 415, the court made its own findings of fact while allowing a degree of deference to the Secretary of State on national security, resources and alternative measures. Each obligation required intense scrutiny, including consideration of less intrusive alternatives.
3. AE had failed to provide corroboration or meaningful detail for his assertion that he had previously studied medicine and the relevant subjects in Iraq. The court rejected that assertion and treated the expert evidence relying upon it as materially undermined. The reasoning in S v Secretary of State (SC/25/2003-27 July 2004), as applied in Secretary of State for the Home Department v E [2007] HRLR 472, provided additional support for attaching no weight to unsupported general assertions where open material could have been answered.
4. The Chemistry course would increase AE’s practical knowledge, confidence and ability to handle explosive substances. It would also create an opportunity to obtain concentrated sulphuric acid. The Human Biology course would similarly increase his ability and confidence to handle and produce pathogens.
5. The court applied the proportionality approach in De Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69. Preventing or restricting terrorism-related activity was sufficiently important to justify limiting access to education. Refusal of the courses was rationally connected to that objective and went no further than necessary. The existing control order reduced, but did not eliminate, the remaining opportunities to transfer information or use the acquired skills.
6. The refusal was proportionate whether AE sought to attend both courses or either course separately. The appeal was therefore dismissed. The court’s conclusion was supported by further closed material, but the open material independently sufficed to establish that article 6 had not been infringed.

First-instance appeal to the High Court (Administrative Court) against the Secretary of State’s decision of 18 September 2007. The appeal was dismissed.