MR, R (on the application of) v Secretary of State for the Home Department

Cancellation of a British passport can restrict an EU citizen’s freedom of movement even where it does not legally prohibit departure. Article 27 of Directive 2004/38 therefore applies to restrictions which hinder or make movement less attractive, not merely to formal prohibitions.

Where that Directive applies and national security is relied on, the person must be informed of the essence of the allegations. Context affects the practical assessment, but it does not create an intermediate standard consisting of a hint or pointer, nor does it remove disclosure where disclosure may risk national security.

MR sought judicial review of the Secretary of State’s decisions in March and July 2015 cancelling his British passport under the Royal Prerogative. The decisions relied on alleged terrorism-related activity and national security concerns.

MR argued that cancellation engaged his EU free-movement rights and that he had been given insufficient information about the case against him. The Secretary of State argued that cancellation restricted, but did not prohibit, travel and that the disclosure approach in ZZ (France) v SSHD was context-specific. The immediate issue was whether the Directive required disclosure of the essence of the allegations.

1. EU-law engagement. Cancellation of a passport engaged Articles 4 and 27 of Directive 2004/38 because its purpose and effect were to make travel to other Member States materially more difficult. The Directive protects movement from hindrance and measures making its exercise less attractive, not merely from legal prohibition.
2. Scope of Article 27. Article 27 permits restrictions only within its terms, including public policy or public security grounds, proportionality and a genuine, present and sufficiently serious threat based on personal conduct. Article 4(3), requiring passports to be issued in accordance with national law, did not authorise a derogation from the Directive.
3. Disclosure standard. Applying ZZ (France) v SSHD and ZZ (France) v SSHD (No. 2), the essence of the allegations had to be disclosed. Evidence could be withheld where disclosure would damage national security, but the grounds could not be reduced to no disclosure, a hint, or a pointer.
4. Context. Context and the individual circumstances affect disclosure under EU law and the ECHR. That explains differences between Tariq v Home Office, Kiani v SSHD, Bank Mellat v HM Treasury and SSHD v AF (No. 3). It did not justify an intermediate disclosure test where Articles 27, 30 and 31 applied. The disclosure already ordered, apart from outstanding matters, satisfied the applicable standard.

First-instance judicial review judgment. The judgment records earlier procedural orders concerning disclosure, including a declaration by consent under section 6(2) of the Justice and Security Act 2013, but does not state a prior merits decision.