BX v Secretary of State for the Home Department

On an appeal against a non-consensual modification of a control order, the court must determine whether the Secretary of State’s decision was flawed, applying judicial review principles as modified by the governing authority. A relocation requirement may be necessary to prevent or restrict terrorism-related activity, but necessity under the statutory scheme does not by itself satisfy Article 8. The court must separately consider whether the interference with private and family life is lawful, non-arbitrary and proportionate. The family rights of a spouse and children must be included in that assessment. A short period of residence in London to attend a child’s birth may still be refused where the risks of absconding or renewed terrorism-related activity make the interference proportionate.

The appellant was subject to a non-derogating control order under the Prevention of Terrorism Act. The Secretary of State modified the order to require relocation from London to the West of England, while relaxing some other restrictions. The appellant appealed, arguing that relocation was unnecessary and disproportionate, particularly because it disrupted his family life and would prevent him attending the birth of his son.

The court accepted for the purposes of the appeal that the control order had been properly made and that the appellant was properly suspected of involvement in terrorism-related activity. The central issues were whether relocation was necessary for the statutory purpose and, if so, whether it breached Article 8 of the ECHR.

1. The appeal was dismissed. Relocation to the West of England was properly regarded as necessary for purposes connected with preventing or restricting the appellant’s involvement in terrorism-related activity. Distance from London would make meetings and operational arrangements with London-based extremist associates more difficult.
2. Under sections 10(5) and 10(6) of the Prevention of Terrorism Act, the court applied the principles applicable on judicial review, as explained in Secretary of State for the Home Department v MB [2007] QB 415. The court had to assess for itself whether the obligation was necessary and, where Convention rights were engaged, whether it breached the relevant Convention right.
3. Relocation interfered with the appellant’s and his family’s rights under Article 8. Necessity under the Act was highly material but did not itself establish compliance with Article 8(2). The interference had also to be lawful, non-arbitrary and proportionate. The wife’s and children’s rights required separate consideration, although the seriousness of the terrorism-related risk was a powerful factor.
4. The appellant’s wife’s concerns about moving, including her pregnancy, cultural expectations, and possible loss of her council accommodation, did not make relocation disproportionate. The proposed attendance at the birth of the appellant’s son required special consideration, but the risk that even a short return to London would facilitate absconding or contact with associates outweighed the resulting interference with family life.
5. The judge’s earlier suggestion in Secretary of State for the Home Department v BH that judicial review was the appropriate route was considered wrong. The proper route was a statutory appeal, with interim relief available only in exceptional circumstances. The relocation requirement therefore remained in force.

The judgment records that the appellant appealed against the Secretary of State’s modification of the control order under section 10(1)(b) of the Prevention of Terrorism Act. The court also noted a pending Court of Appeal challenge concerning interim relief and procedure, but that decision was not the decision under review in this judgment.