CA v Secretary of State for the Home Department

When assessing the proportionality of relocation under a non-derogating control order, the court must subject the measure to intense scrutiny and examine alternative means of achieving the protective objective. Deference is owed to the Secretary of State’s assessment of terrorism risk, but it does not displace the court’s duty to decide proportionality. Family circumstances may outweigh the security benefit of relocation where reunion would mitigate the risk, separation would materially increase it, and the measure would otherwise threaten the unity and welfare of the family.

The Secretary of State imposed a non-derogating control order on CA and modified it to require his relocation from Crawley to Ipswich. CA appealed under section 10(3) of the Prevention of Terrorism Act 2005. He accepted that the statutory grounds for maintaining a control order were established, but challenged relocation as disproportionate.

The central issue was whether, having regard to the terrorism risk, the effect of relocation on CA’s wife and children, and the availability of stringent alternative obligations, continued relocation was proportionate.

1. Appeal allowed. CA was permitted to return to Crawley, subject to stringent obligations to be notified by the Secretary of State within 14 days.
2. The determinative issue was proportionality. Applying the approach in SSHD v MB [2007] QB 415, the court accorded a degree of deference to the Secretary of State’s decision, but subjected the relocation measure to intense scrutiny and explored alternative means of achieving the same protective result.
3. Dispersion of suspected individuals was a legitimate means of minimising terrorism risk. Without CA’s particular family circumstances, relocation would have been upheld. The fact that the decision might have been defensible on Wednesbury principles did not answer the proportionality question.
4. The court accepted that the risk could not be wholly excluded and that curfews or restrictive boundaries could not remove it. However, full family reunion would mitigate the risk, while permanent separation created a substantial risk that the marriage would fail and that CA might become embittered and revert to extremist activity. It was not justifiable to secure the advantage of removal from Crawley at the price of this family’s unity and welfare.
5. CA’s request that the statutory review be discontinued meant that the review had to be discontinued under section 3(14) of the Prevention of Terrorism Act 2005. That did not prevent future challenges to the continuing necessity of the control order or to individual obligations.

CA exercised the statutory right of appeal against the Secretary of State’s modification of his control order requiring relocation from Crawley to Ipswich. The High Court allowed the appeal.