XH & AIt, R (On the Application Of) v Secretary of State for the Home Department

The Royal Prerogative to refuse or withdraw a British passport on national-security grounds was not abrogated by the Terrorism Prevention and Investigation Measures Act 2011. The statutory scheme and the prerogative had materially different scopes and purposes. Cancellation of a passport restricted EU free-movement rights, but the restriction could be justified on public-security grounds where it was necessary, proportionate and based on the individual’s personal conduct. Judicial review provided sufficient procedural protection because the decision involved a prospective risk assessment requiring judgment and expertise. There was no general duty to consult before cancellation where advance warning could undermine national security. The claims therefore failed.

XH and AI, British nationals, challenged decisions of the Secretary of State cancelling their passports under the Royal Prerogative because of suspected terrorism-related activity. They argued that the Terrorism Prevention and Investigation Measures Act 2011 had displaced or restricted the prerogative, that the policy lacked legal certainty, and that the decisions breached EU free-movement rights, the ECHR and procedural fairness.

XH also challenged the adequacy of disclosure, judicial review and protection of legal professional privilege. The central questions were whether the prerogative survived the statutory scheme and whether its exercise was lawful.

1. Royal Prerogative. The claims were dismissed. Applying Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 and R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, a prerogative power is excluded where Parliament has expressly or by necessary implication provided that the relevant act can thereafter be done only under statute. Necessary implication requires express language and logic, not merely what would be reasonable or sensible.
2. The Terrorism Prevention and Investigation Measures Act 2011 did not exclude the prerogative. The prerogative concerned the issue, refusal and invalidation of passports for a range of public-interest reasons. The Act mainly imposed temporary restrictions and requirements, including surrender of travel documents, within a wider terrorism-prevention scheme. There was no complete overlap, and the Act did not address the issue or refusal of passports. The prerogative therefore remained available.
3. The policy was sufficiently certain. It identified relevant categories, including travel abroad for terrorism-related activity, required decisions to be necessary and proportionate, and required careful consideration of past, present or proposed activities. A cancelled passport could be reconsidered or reapplied for at any time. Judicial review was available.
4. EU law was engaged because passport cancellation restricted free movement. Under Article 27 of the Free Movement Directive, however, a restriction could be justified on public-security grounds if proportionate and based on the individual’s personal conduct. Proof of completed misconduct was not required; a prospective, individualised risk assessment was permissible. The material disclosed to XH was sufficient in the circumstances.
5. Judicial review was a sufficient remedy. The decision involved a prospective risk assessment informed by policy, judgment and expertise. It was not a case requiring a full appellate fact-finding jurisdiction. Article 47 of the Charter of Fundamental Rights of the European Union did not require advance consultation. National-security concerns strongly militated against a general duty to give prior warning.
6. Article 8 ECHR was not engaged on the evidence. The claimed family visits, pilgrimage and short European trips did not establish real and significant interference with private or family life. The LPP challenge was speculative and fell within the exclusive jurisdiction of the IPT under section 65 of the Regulation of Investigatory Powers Act 2000, subject to the court’s ability to address abuse of its own process on specific facts.

• High Court (Administrative Court): the claims brought by XH and AI were dismissed. Earlier procedural orders included declarations under section 6 of the Justice and Security Act 2013; permission to appeal from those orders was refused.