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

The Royal Prerogative power to withdraw a British passport remains available in terrorism-related cases. The existence of statutory powers under the Terrorism Prevention and Investigation Measures Act 2011 does not create an additional precondition to exercising that power. Their availability is relevant to whether withdrawal is necessary and proportionate.

A decision may stand where an irrelevant factor played no significant part, or where it is highly likely that the outcome would not have been substantially different. A review need not always be conducted by the original ministerial decision-maker. The question is one of degree. Restrictions on EU free movement caused by passport withdrawal must be necessary and proportionate, but the domestic policy was held to satisfy those requirements.

The claimant, a British national, challenged decisions taken in March and July 2015 withdrawing his passport under the Royal Prerogative on national security grounds. The decisions relied on assessments concerning his past association with proscribed extremist organisations, travel to Syria and the risk of future terrorism-related travel.

The claim alleged public law errors, incompatibility with EU free movement rights under Directive 2004/38/EC, and abuse of power because statutory powers under the Terrorism Prevention and Investigation Measures Act 2011 were available. The court also considered whether the review decision was invalid because a minister had taken the original decision and because one factual assessment had later been abandoned.

1. Disposition. The court granted permission for judicial review but dismissed the claim. The March and July 2015 decisions were lawful.
2. The court followed the reasoning in R (XH) v Secretary of State for the Home Department, including the Court of Appeal’s conclusion that the Royal Prerogative power to cancel a passport remained vested in the executive. The Passport Policy did not prohibit use of the prerogative whenever statutory powers were available. The availability of a TPIM was relevant only to necessity and proportionality.
3. On the March decision, the assessments of the claimant’s activities, associations and travel entitled the minister to conclude that passport withdrawal was necessary and proportionate. It was necessary because there was no other reliable way of preventing the claimant from leaving the country.
4. The abandoned assessment that the Prague trip was a border-security “dry run” did not invalidate the review decision. Applying the approach in R (FDA and others) v Secretary of State for Work and Pensions and section 31(2A) of the Senior Courts Act 1981, the court held that the factor played no significant part and that it was highly likely, almost inevitable, that the same decision would have been reached without it.
5. There was no rule requiring every later decision in the same case to be referred to a minister. Whether personal reconsideration was required depended on the significance of the new information. The abandoned assessment was insufficiently important to require ministerial reconsideration.
6. Passport withdrawal engaged EU free movement rights because it substantially impeded travel. However, the requirements of Article 27 of Directive 2004/38/EC, including necessity, proportionality and effective judicial review, added nothing material to the requirements of the Passport Policy in this case. Judicial review could examine facts where appropriate.

First-instance judicial review proceedings. The judgment records earlier proceedings before Ouseley J and related decisions in R (XH) v Secretary of State for the Home Department, but this claim was determined by the Administrative Court.