B & Anor v Secretary of State for the Home Department

The Royal Prerogative power to cancel a British passport may be exercised where the holder’s past, present or proposed activities are reasonably suspected to be so undesirable that continued passport facilities would be contrary to the public interest. The decision must be necessary and proportionate and must comply with the Citizens Directive, including its requirement for a genuine, present and sufficiently serious threat based on the individual’s personal conduct.

Judicial review involves careful examination of the facts and legality of the decision, but does not ordinarily make the court the primary fact-finder. Procedural fairness does not generally require advance disclosure of the detailed case where disclosure may frustrate the power’s purpose or is impracticable because of national-security and time constraints.

Two British citizens challenged decisions made on behalf of the Secretary of State cancelling their passports under the Royal Prerogative. They had been stopped while intending to join a humanitarian convoy travelling towards Syria, and their passports had initially been retained under statutory counter-terrorism powers.

The claimants had permission to pursue challenges alleging that cancellation was unnecessary and disproportionate and procedurally unfair. They sought permission to advance further grounds alleging an unfair and unbalanced ministerial briefing and that the statutory scheme had displaced the Royal Prerogative. The central issues were whether the decisions were lawfully justified on the evidence, whether prior representations were adequate, and whether the power remained available.

1. Grounds 1 and 2 dismissed. Permission to advance Grounds 3 and 4 was refused. The claims were dismissed.
2. The cancellation of a passport substantially interferes with freedom of movement. It therefore requires a strong or compelling justification and must be necessary and proportionate. Under Article 27(2) of Directive 2004/38/EC, the measure must be based exclusively on the individual’s personal conduct and that conduct must represent a genuine, present and sufficiently serious threat affecting a fundamental interest of society.
3. Reasonable suspicion of relevant past or proposed conduct can be sufficient. The statutory and EU-law framework required a forward-looking assessment of the threat posed if the claimants retained their passports. The court’s task was fact checking rather than primary fact finding, although judicial review could involve intense examination of the factual basis of the decision.
4. The evidence, including the assessments concerning the claimants’ proposed travel, previous activities, association with Anaya Aid and intended onward travel, was sufficient to support the Minister’s conclusions. The cancellation of each passport was necessary and proportionate.
5. The claimants had an opportunity to make representations before cancellation and their representations were considered. The law did not require advance disclosure of the detailed case against them. The reasoning in R (XH) v Secretary of State for the Home Department applied. Disclosure issues were lengthy and the statutory maximum period for police retention of the passports was approaching expiry.
6. The briefing material was not unfair or unbalanced. Officials had latitude as to the material included and its presentation, provided the report was fair and balanced overall. The alleged omissions and disputed descriptions did not make either briefing unlawful.
7. The argument that the Royal Prerogative had been displaced by Terrorism Prevention and Investigation Measures Act 2011 was not reasonably arguable in light of the binding decision in R (XH) v Secretary of State for the Home Department.