BF v Secretary of State for the Home Department

On an appeal against a TPIM extension, the court reviews whether the statutory conditions were met by applying judicial-review principles, including proportionality and intense scrutiny of each measure. Earlier terrorism-related conduct remains relevant, but does not by itself establish present necessity. The court must assess the evidence as a whole, including subsequent conduct, current associations, the assessed risk of travel and the effect of existing restrictions. Measures may remain necessary where they reduce the risk of absconding and subsequent terrorism-related activity, even after prolonged compliance and progressive relaxation. The Secretary of State is entitled to a degree of respect in assessing operational risk, but the court must examine each measure individually and consider alternative means of achieving the same protection.

BF had previously been subject to control orders and, from January 2012, a TPIM. McCombe J upheld the TPIM in 2012. In January 2013 the Secretary of State served a notice extending it for one further year under the Terrorism Prevention and Investigation Measures Act 2011.

BF accepted that condition A was satisfied but challenged conditions C and D. The issues were whether continuing measures were necessary to protect the public from a risk of terrorism and whether the specified measures were necessary to prevent or restrict his involvement in terrorism-related activity.

1. Outcome. The challenge to the TPIM extension was rejected. Conditions C and D were satisfied when the extension notice was made and remained satisfied at the date of judgment.
2. Under section 16 of the Terrorism Prevention and Investigation Measures Act 2011, the court reviews the Secretary of State’s decisions by applying judicial-review principles. Necessity involves proportionality. The court must give intense scrutiny to each obligation and explore alternative means of achieving the same protective result. A degree of respect is due to the Secretary of State because of the executive assessment of terrorism risk, but that does not displace independent judicial scrutiny.
3. Earlier terrorism-related conduct is a relevant factor but cannot, without more, establish present necessity. The court adopted the earlier findings concerning BF’s conduct and considered cumulatively the absence of any clear renunciation of extremist views, assessments concerning his wife and continuing associations, the opportunity for an Islamist extremist to travel to Syria and engage with Al Qaeda-linked elements, and the assessment that BF would travel abroad to engage in terrorism-related activity if restrictions were removed.
4. For condition D, the court examined the individual measures and the package as a whole. The requirement to report from BF’s home or his wife’s home supplied reassurance beyond GPS monitoring, reduced the time available for absconding and deterred absconding. It was therefore necessary and proportionate. Compliance with previous conditions, repeated dispensations and the progressive relaxation of restrictions did not make the remaining measures unlawful.
5. The court also considered the Supreme Court’s guidance in Bank Mellat v Her Majesty’s Treasury on explaining in an open judgment what closed material had contributed to the reasoning, and revised the open judgment after inviting observations from the parties and special advocates.

The judgment describes earlier control-order and TPIM decisions in the same proceedings, including the 2011 judgments of Davis J and the 2012 judgments of McCombe J. The present challenge was determined by the Administrative Court against the Secretary of State’s TPIM extension notice served in January 2013.