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

The Secretary of State may maintain cancellation of a British passport under the Royal Prerogative where the decision is directed to national security and supported by a proportionate assessment of the individual’s continuing risk. A Family Court order permitting care proceedings to be withdrawn does not necessarily determine the underlying security allegations, particularly where the court made no adverse findings, the proceedings ended by concession, and the Secretary of State was not a party. The Secretary of State must engage with such an order, but need not treat it as binding or disclose sensitive material where the circumstances do not require disclosure. Proportionality requires consideration of whether the measure is suitable and no more onerous than necessary.

The claimant challenged the Secretary of State’s decision to maintain cancellation of his British passport after he had been stopped while travelling from Dover. The cancellation was based on an assessment that he intended to travel to territory controlled by Daesh for terrorism-related activity and might do so again.

Family proceedings concerning the claimant’s son were later withdrawn. The Family Court made no adverse findings against the parents and recorded that there were no day-to-day welfare concerns. The claimant argued that the order prevented the Secretary of State from relying on the same security concerns, or at least required a more substantial response. The central issues were the legal effect of the Family Court order, the need to disclose sensitive material, and the proportionality of maintaining passport cancellation.

1. Claim dismissed. The Secretary of State had considered the Family Court order and the surrounding proceedings when conducting the December 2016 review.
2. The Family Court and the Secretary of State were addressing fundamentally different questions. The Family Court’s paramount concern was the child’s welfare under the Children Act 1989. The Secretary of State was concerned with national security and public protection. The Family Court order did not determine whether the claimant had an aspiration to travel to Daesh-controlled territory.
3. The Family Court proceedings had been withdrawn on the Council’s application. The court was not invited to make adverse findings and made none. The hearing therefore did not produce relevant factual findings capable of binding the Secretary of State. The order’s provisions concerning restoration of property and disclosure of the order into passport proceedings likewise expressed no view on passport cancellation.
4. The Secretary of State was not required, in the circumstances, to disclose sensitive material to the Family Court or to treat the order as determinative. She was required to engage with it, and did so. Her conclusion was based on material available to her, including material not before the Family Court.
5. EU law was engaged. Proportionality required the court to consider whether passport cancellation was suitable to achieve the legitimate security aim and whether it was no more onerous than necessary where an equally effective alternative existed, applying the approach in R (Lumsdon) v Legal Services Board [2016] AC 697. The concern was not confined to one journey, and the suggested alternatives of a TPIM or a single-use travel document did not establish disproportionality.