Secretary of State for the Home Department v AR

In control-order proceedings, findings made in earlier proceedings between the same parties are not binding where the issues and statutory provisions differ. The court must reach its own conclusions, while checking them against earlier findings and explaining any significant divergence.

Procedural fairness depends on all the circumstances. There is no universal requirement to disclose an irreducible minimum of evidence, provided the controlled person knows the essential features of the case and has a fair opportunity, with the assistance of special advocates, to answer it.

Conduct cannot retrospectively become terrorism-related activity solely because an organisation is later proscribed. A control order nevertheless may be justified by reasonable grounds for suspecting continuing involvement in terrorism-related activity and by the necessity of proportionate restrictions.

AR, a Libyan national, was subject to a control order made under the Prevention of Terrorism Act 2005 after earlier asylum, deportation and Special Immigration Appeal Commission proceedings. The Court of Appeal had dismissed the Secretary of State’s appeal against SIAC’s decision that AR posed a real and direct threat to national security but could not safely be returned to Libya.

AR sought review of the decision to make the order under section 3(10) and appealed under section 10(3) against the refusal to modify specified obligations. The issues concerned the relevance of SIAC’s findings, procedural fairness and disclosure, abuse of process, reasonable suspicion of terrorism-related activity, necessity, and the proportionality of individual restrictions.

1. Earlier findings. SIAC’s findings were not binding by res judicata or issue estoppel because the issues and statutory contexts differed. Applying Secretary of State for the Home Department v AF [2008] EWCA Civ 117, the court had to make its own findings. It should nevertheless check those findings against SIAC’s conclusions and explain any significant difference.
2. Fairness. The court was bound by the majority conclusions in Secretary of State for the Home Department v AF, AM and AN [2008] EWCA Civ 1148. Fairness depended on all the circumstances, including the nature of the case, the open explanation of the allegations, any summary of closed material, the effectiveness of the special advocates, and the possible effect of further disclosure. AR knew the essential features of the case and had a fair opportunity to answer them.
3. Abuse of process. The proceedings were not an abuse. The statutory duties governing disclosure by the Security Service meant that information about AR’s alleged LIFG membership could not simply have been disclosed to the immigration authorities. The court therefore rejected the proposed stay.
4. Substantive and necessity issues. Conduct lawful when undertaken could not retrospectively found a control order merely because the LIFG was later proscribed. However, the evidence established reasonable grounds for suspecting that AR had been involved in terrorism-related activity and would resume senior LIFG activity or support terrorism-related activity. The making and continuation of the order were therefore not flawed.
5. Modification. Applying the guidance in Secretary of State for the Home Department v MB [2007] QB 415, the challenged restrictions were proportionate and not flawed. The court upheld the twelve-hour curfew, prohibited-contact and visitor conditions, the prohibition on a home computer and the mobile-phone restriction. It noted that changed circumstances, including employment, study or summertime conditions, might later affect the curfew assessment.
6. The control order and its obligations were upheld. The appeal against refusal to modify the order was dismissed.

The judgment records the following earlier stages:

• Special Immigration Appeal Commission: allowed AR’s appeal on 27 April 2007, finding that he posed a real and direct threat to national security but could not safely be returned to Libya.
• Court of Appeal: dismissed the Secretary of State’s appeal on 9 April 2008.
• High Court (Administrative Court): upheld the control order and dismissed AR’s appeal against refusal to modify it.