XH and AI, R (On the Application Of) v The Secretary of State for the Home Department

The royal prerogative to refuse or cancel a British passport is not impliedly abrogated merely because Parliament has enacted a statutory anti-terrorism regime which includes travel restrictions. Abrogation requires a necessary implication arising from the statute's express language and logic, read in context.

A TPIM travel measure creates personally served obligations backed by criminal sanctions. Passport cancellation instead concerns the validity of the document itself. The measures therefore serve materially different functions.

A passport cancellation that substantially interferes with EU free movement may nevertheless be proportionate where it is based exclusively on the individual's conduct and is strongly justified by a genuine, present and sufficiently serious national-security threat. Conventional judicial review, including review of the factual basis where appropriate, may provide an effective remedy.

XH and AI were British nationals whose passports were cancelled by the Secretary of State on national-security grounds. She assessed that each intended to travel to Syria or Iraq for terrorism-related activity.

The Divisional Court dismissed their judicial-review claims. Both appellants appealed on the common contention that the Terrorism Prevention and Investigation Measures Act 2011 had impliedly removed the prerogative power to cancel passports. XH also appealed on EU-law grounds concerning proportionality, the factual basis of the decision, disclosure, judicial review and the right to be heard.

The central issues were whether the TPIM statutory scheme displaced the passport prerogative, and whether the cancellation of XH's passport complied with the requirements of Directive 2004/38/EC and the Charter.

1. Appeals dismissed. The court held that the Terrorism Prevention and Investigation Measures Act 2011 did not impliedly abrogate or suspend the prerogative power to refuse or cancel a passport. A necessary implication is stricter than an implication that would be reasonable or sensible.

2. The statutory travel measure and passport cancellation were not materially identical. A TPIM imposes obligations on a person, takes effect only on personal service and is enforced by criminal sanctions. Passport cancellation concerns the continuing validity of the Crown's document, operates independently of the holder's compliance, and can address a risk where personal service cannot be achieved or the person is abroad. The territorial scope and two-year limit of a TPIM also meant that it would not necessarily be equally effective.

3. The cancellation substantially interfered with XH's EU free-movement rights. It was nevertheless proportionate under Article 27 because it was based on his own conduct and was strongly justified by the assessed risk that he would travel to engage in terrorism-related activity. The policy governing passport cancellation was also compatible with the Directive when read as a whole.

4. The Divisional Court had sufficient closed and open material to assess the factual basis and proportionality of the decision. EU law did not require the reviewing court to undertake primary fact-finding. In this national-security context, factual findings were part of a wider expert and evaluative judgment. Conventional judicial review could investigate the factual basis where appropriate and supplied an effective remedy.

5. The Secretary of State had disclosed the essence of the national-security grounds against XH. The underlying evidence could remain confidential where disclosure was not strictly necessary. Advance notice and a prior hearing were not required where they would risk defeating the purpose of cancellation; post-decision reasons, representations and judicial review were sufficient.

6. Permission to appeal was refused on the legal-professional-privilege and costs grounds. There was no evidence of an actual LPP infringement or chilling effect, and the Divisional Court's costs order was a proper exercise of discretion.

• Court of Appeal (Civil Division): dismissed both appeals in [2017] EWCA Civ 41.
• Divisional Court (High Court, Queen's Bench Division): dismissed the judicial-review challenges to the passport cancellations. During XH's proceedings it granted a closed-material declaration under section 6 of the Justice and Security Act 2013 in [2015] EWHC 2932 (Admin).