EB v The Secretary of State for the Home Department

In TPIM proceedings, a statutory appeal against refusal to vary measures must remain a meaningful right, but its timing may be managed against the need for a fair and properly informed determination. The court must consider the nature and degree of interference with the right, balance competing interests, and apply the Overriding Objective. Where a variation appeal substantially overlaps with the statutory review of the TPIM notice, and both depend on the same open and closed material, fairness may require them to be heard together. Disclosure is governed by Civil Procedure Rules 1998 Part 80, not the ordinary disclosure regime.

EB was subject to a TPIM notice imposed under the Terrorism Prevention and Investigation Measures Act 2011. He had a statutory right under section 16 to appeal against the Secretary of State’s refusal to vary relocation, association and financial measures. Separately, the TPIM notice was due to undergo review under section 9.

EB applied for his section 16 appeal to be heard immediately rather than with the section 9 review. He also sought disclosure for the review and directions for its conduct. The court had to determine whether joinder would unlawfully undermine the section 16 right, what disclosure procedure applied to material withheld from EB, and what directions were appropriate.

1. Timing of the appeal. A right may become illusory through practical delay. The court must assess interference according to the nature and degree of the right affected. It must also balance competing rights and interests and apply the Overriding Objective, including the interests of all parties and the public interest.
2. Although EB’s section 16 appeal was important because success could reduce restrictions on his liberty, it could not fairly be determined in isolation. There was substantial overlap with the section 9 review, including the relocation issue, and the court was not yet fully informed by the relevant open and closed material. Hearing the appeal separately risked either an unduly precautionary decision adverse to EB or insufficient scrutiny of the Secretary of State’s case.
3. The section 16 appeal was therefore directed to be heard with the section 9 review. The delay made EB’s right less perfect than it might otherwise have been, but did not deprive it of reality.
4. Disclosure. The special disclosure regime for TPIM proceedings applies. Under paragraphs 3 and 4 of Schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011 and Part 80 of the Civil Procedure Rules 1998, the Secretary of State must file closed material, reasons for withholding it, and any possible summary with the court, and serve it on the special advocate. The court must then decide in closed proceedings whether disclosure is contrary to the public interest and whether the material enables the proceedings to be properly determined.
5. The Secretary of State was obliged to verify the accuracy of the probe transcripts. The parties’ agreed directions for the forthcoming review were approved, with the outstanding probation report application to be dealt with on the papers.