Secretary of State for the Home Department v AT & Anor

A control-order decision is flawed where ministerial material creates a materially erroneous impression about a factor critical to the decision, unless the decision-maker’s evidence shows that the error did not affect the decision. The court must apply judicial-review principles, but the minister must make the statutory decision and must do so on a correct factual basis. Control orders require both necessity and proportionality. In assessing future risk, the Secretary of State may take a cautious view of a person’s capacity and connections, and need not prove a present intention to re-engage in terrorism-related activity. Procedural fairness requires sufficient open information to enable effective instructions to a special advocate. Individual obligations must be scrutinised separately and may require relaxation where less restrictive measures would suffice.

The Secretary of State made non-derogating control orders against AT and AW under the Prevention of Terrorism Act 2005. Both men were Libyan nationals and admitted former members of the Libyan Islamic Fighting Group. Each had convictions arising from terrorism-related activity and was subject to a review hearing under section 3(10), together with appeals against refusals to modify obligations.

AW argued that the material supplied to the Secretary of State misleadingly suggested that he had resumed terrorism-related activity after his release from prison. AT challenged the adequacy of the procedure, the necessity and proportionality of his order, and particular obligations. The central issues were whether the decisions were flawed, whether minimum procedural fairness had been provided, and whether the individual obligations remained necessary.

AW. The first open statement gave the misleading impression that AW had resumed providing false documents and funds after his release. The material showed only activities before his arrest. The Secretary of State had no evidence that she was not misled, so the court inferred that she decided on a materially erroneous basis. The error concerned deterrence following successful prosecution, a factor of critical importance.

The court applied the principle that a minister must know or be told enough to ensure that legally relevant matters are not omitted and that critical information is not misleading. The ordinary judicial-review power to uphold a decision despite procedural error did not justify the court in substituting its own judgment. The court was not satisfied that the Secretary of State would have made the same decision on the correct factual basis. AW’s control order was quashed.

AT. The information supplied about AT was accurate and was not misleading. The court therefore upheld the decision to make his order. AT had sufficient open information to give effective instructions to the special advocate. The closed material was not determinative of necessity, and the minimum procedural-fairness requirements were satisfied.

The order was necessary and proportionate. The court was entitled to rely on the Secretary of State’s cautious assessment of the continuing risk posed by a significant and influential LIFG member with the capacity to re-engage. A present intention to re-engage was unnecessary. Most challenged obligations were upheld, including the curfew, prohibited contacts, geographical boundary and study restriction. The visitor restriction required relaxation to permit spouses visiting together, and final wording was adjourned. The words requiring AT to submit to a personal search were quashed by deleting them.