CF v Secretary of State for the Home Department

On an appeal concerning variation of terrorism prevention and investigation measures, the court must review the necessity and proportionality of each challenged measure by applying judicial review principles. The court must assess the position both when the Secretary of State made the decision and at the date of the appeal. Deference to national security expertise does not displace intense scrutiny, particularly where a measure is intrusive. The court must consider less restrictive alternatives and cannot rely on material whose substance has not been sufficiently disclosed to enable an effective response. A measure may remain necessary yet require variation where its practical effect imposes an unjustified restriction on ordinary education and social interaction.

CF appealed against the Secretary of State’s refusal to vary measures in a TPIM notice. The requested variations concerned overnight residence, electronic communication devices, work or studies, reporting, and association. The TPIM had been extended for a further year, and its underlying necessity was not challenged in this appeal.

CF was undertaking a university degree in London. He argued that the measures interfered disproportionately with his studies, religious observance, employment prospects, family life and university relationships. The central questions were whether the individual measures remained necessary and proportionate, and whether the association requirements should be varied to permit limited social contact with fellow students on campus.

1. Applicable approach. On an appeal under section 16 of the Terrorism Prevention and Investigation Measures Act 2011, the court applies judicial review principles. It does not revisit the Secretary of State’s belief concerning condition A. Its principal task is to review the necessity and proportionality of each challenged measure. The court must assess the position both when the decision was made and at the date of the appeal.
2. The court must give intense scrutiny to the evidence while allowing appropriate weight to the expertise and judgments of the Security Service and the Secretary of State. Necessity means more than usefulness, reasonableness or desirability. Each measure must be examined individually. The proportionality inquiry requires a sufficiently important objective, a rational connection between the measure and that objective, and no greater impairment of the relevant right than necessary. The more serious the impact, the stronger the justification required.
3. The disclosure obligation derived from AF (No3) [2010] 2 AC 269 applied not only to the national security case but also to the necessity of each measure. The court could not rely on reasons or evidence whose substance had not been sufficiently disclosed to permit an effective response.
4. The overnight residence, electronic communication, work or studies, and reporting measures remained necessary and proportionate. The applications to vary those measures were therefore refused.
5. The association requirements were necessary to protect national security, but their application to ordinary informal contact with fellow students on the university campus was disproportionate. The requirements created an artificial and isolating restriction on participation in university life without an apparent corresponding security benefit. The appeal was upheld to that extent. The parties were invited to agree an appropriate variation, with written submissions and further directions if agreement could not be reached. Otherwise, the appeal was dismissed.

The judgment states that Lord Justice Lloyd Jones had previously upheld the national security case, the necessity for a TPIM notice and the specific measures in proceedings under section 9. The present court nevertheless had to reach its own decision on the current necessity and proportionality of the challenged measures.