Secretary of State for the Home Department v GG

In determining the lawfulness of a control order, the court must assess all relevant evidence, including evidence unavailable to the Secretary of State when the decision was made. The court must make the necessary factual findings, but cannot substitute its own view for that of the Secretary of State unless the statutory decision fails the Wednesbury standard. Article 6 requires sufficient disclosure to enable effective instructions to a special advocate. However, the absence of such disclosure at the original hearing does not require quashing where compliant disclosure has subsequently been provided and could have been provided earlier. Restrictions affecting family life may contribute to a deprivation of liberty under Article 5, but their overall effect must be assessed. A relocation obligation must be necessary in the particular circumstances, including its impact on family life and less restrictive alternatives.

The Secretary of State sought determination of the lawfulness of a control order imposed on GG in July 2006 and renewed annually until its revocation in June 2010. GG appealed against a renewal and against a modification requiring him to live in Cardiff.

The original proceedings had been set aside following the House of Lords decision in AF (No 3) v Secretary of State for the Home Department [2010] 2 AC 209, which required further disclosure for an Article 6-compliant hearing. The issues were whether the order and renewals were lawfully based on reasonable suspicion and necessity, whether the restrictions breached Article 5, and whether the Cardiff relocation was a lawful and necessary modification.

1. Control order and renewals. The Secretary of State had established reasonable grounds for suspecting that GG had been involved in terrorist-related activity. His extremist views, associations and influence on others justified the imposition of the order and its renewal in July 2009. The order and renewals were therefore lawful.
2. Effect of subsequent disclosure. The court had to reconsider the factual findings in light of the disclosure required by AF (No 3) v Secretary of State for the Home Department [2010] 2 AC 209. The principle in AN, AE and AF v Secretary of State for the Home Department [2010] EWCA Civ 869 did not require quashing. That case concerned circumstances in which compliant disclosure had not, and would not, be given. Here, compliant disclosure had been given and could have been given earlier.
3. Evidence and judicial review. The court was required to consider all evidence placed before it, whether or not known to the Secretary of State. It had to decide whether the order or obligation could reasonably have been imposed, while respecting the statutory judicial-review standard and not substituting its own view for that of the Secretary of State.
4. Article 5. Applying Secretary of State for the Home Department v AP [2011] 2 AC 1, the restrictions, including the curfew, relocation and practical difficulties concerning family visits, did not cumulatively amount to a deprivation of liberty.
5. Cardiff relocation. GG had not truly consented to the move. The Secretary of State had failed to give sufficient weight to the effect on his wife and children, the practical consequences of removing the family from Derby, the limited remaining life of the control order and GG’s willingness to accept stricter conditions in Derby. The Cardiff obligation was not necessary and was quashed.

The original decision had been appealed to the Court of Appeal and remitted by consent on 16 March 2012 for redetermination in accordance with AF (No 3) v Secretary of State for the Home Department [2010] 2 AC 209. This judgment constituted the remitted determination.