QX v Secretary of State for the Home Department

Post-return obligations imposed under a temporary exclusion order are legally distinct from immigration conditions controlling entry. Although qualification of a British citizen’s right of abode falls within the state’s immigration prerogative, onerous obligations imposed after return may directly interfere with private life and determine civil rights for the purposes of article 6(1).

Where such obligations restrict freedom of movement to the extent of virtual imprisonment, the AF (No 3) disclosure standard applies. The person must receive sufficient information about the allegations to give effective instructions. General assertions will not suffice where the case depends solely or decisively on closed material.

QX, a British citizen returned to the United Kingdom under a temporary exclusion order, challenged daily police reporting and compulsory weekly sessions with a mentor and theologian. He sought review under section 11(2)(d) of the Counter-Terrorism and Security Act 2015.

The preliminary issues were whether article 6(1) applied, whether the disclosure standard in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28 applied, whether existing disclosure was sufficient, and whether further specified material should be disclosed.

1. Article 6(1). The qualification of the right of abode by a temporary exclusion order was an immigration measure within the hard core of public-authority prerogatives. It therefore did not itself attract article 6 procedural guarantees. The post-return obligations were different. They were imposed after return, required separate executive action, and pursued the national-security purpose associated with control orders and TPIMs rather than immigration control.
2. The obligations were sufficiently onerous, in combination, to interfere directly and materially with QX’s article 8 rights. Daily reporting and four hours of compulsory appointments each week circumscribed his movements and exposed him to criminal sanction. The court declined to decide whether every section 9 obligation would engage article 8.
3. The review would decisively determine whether the challenged obligations were necessary and lawful, or whether relief should be granted. QX’s article 8 rights were therefore civil rights determined by the proceedings, so article 6(1) applied.
4. Disclosure. Article 6 requires a context-sensitive assessment. The obligations were comparable to virtual imprisonment. The AF (No 3) standard therefore applied: QX had to receive sufficient information about the allegations to give effective instructions. The open case gave him enough information to address his alleged travel to Syria and alignment with al-Qaeda, but further closed information might affect necessity and proportionality. The Secretary of State was directed to clarify her case before a final ruling on breach.
5. The principal requests concerning the DDP, providers, qualifications, decision-making and records would, after disclosure, leave QX able to instruct the special advocates. The broad request for complaints by other DDP subjects was an untargeted fishing exercise and was rejected.
6. The data-processing argument did not attract the AF (No 3) standard. Data protection interests fell at the lower end of the relevant spectrum and did not directly impinge on personal freedom and liberty.