QX v Secretary of State for the Home Department

The court held that a review under section 11(2)(d) of the Counter-Terrorism and Security Act 2015 of post-return obligations imposed under section 9 engages article 6(1) of the European Convention on Human Rights where those obligations give rise to a directly material interference with private life under article 8. The judge found that the right of abode is a matter of immigration control and part of the hard core of public-authority prerogative, but that section 9 post-return obligations are legally distinct from statutory conditions of entry and instead operate as discrete national security controls akin to control orders or TPIMs.

Given the frequency and duration of the reporting and attendance obligations in this case, the court concluded that the AF (No 3) standard of disclosure applies: the controlee must be given sufficient information about the allegations to enable effective instructions to be given, subject to the protections of the closed material procedure. The court also held that data-protection concerns arising from the mentoring programme did not require AF (No 3) disclosure.

The judge directed the Secretary of State to clarify and finalise her closed material case and made procedural directions; she declined to order broad untargeted disclosure of material that did not assist the controlee and accepted that the special advocates could deal with much of the material in closed session.

Background and parties: QX is a British national who returned to the United Kingdom pursuant to a permit under a Temporary Exclusion Order. On return he was served with a Notice of Obligations under section 9 of the Counter-Terrorism and Security Act 2015 requiring, among other things, daily reporting to police and weekly multi-hour appointments with a Home Office mentor and a theologian. QX applied under section 11(2)(d) for judicial review of two of those obligations (daily reporting and the mentoring/theologian appointments). The proceedings included open and closed sessions and involvement of special advocates.

Nature of the application / relief sought: QX sought a review of the lawfulness of the specified section 9 obligations and, in particular, disclosure of material relating to the mentoring and theological sessions so as to challenge necessity and proportionality under article 8.

Issues before the court:

• Whether article 6(1) applies to a review under section 11(2)(d) of the 2015 Act;
• If article 6(1) applies, whether the AF (No 3) disclosure standard is engaged;
• Whether the disclosure already provided met that AF (No 3) standard;
• Whether specific documents about mentoring, theologian appointments, procurement and complaints should be disclosed.

Court’s reasoning and findings: The court held that the qualification of the right of abode by a Temporary Exclusion Order is an immigration measure within the hard core of public-authority prerogative, and therefore in that narrow respect article 6 does not apply. However, the post-return obligations under section 9 are discrete, imposed after return, and serve the same protective national-security purpose as control orders or TPIMs. On the facts of this case the combination of daily reporting and four hours per week of mandated appointments substantially restricted the claimant’s freedom and interfered with his article 8 private-life rights. Because the proceedings will determine whether those restrictions are necessary and proportionate, article 6(1) applies.

Applying the AF (No 3) test and the case-law spectrum, the judge concluded that the obligations in this case are comparable to a state of "virtual imprisonment" and that full AF (No 3) disclosure principles therefore apply in substance: the claimant must be given sufficient information about the allegations so that he can give effective instructions. The court considered the closed material and concluded that some of it, if relied on, could breach article 6(1) unless the Secretary of State clarified and limited her case. The judge directed further clarification and disclosure steps rather than ordering broad procedural discovery. Requests for wide-ranging, untargeted disclosure (for example wholesale complaints about the Desistance and Disengagement Programme) were rejected as fishing and not necessary for AF (No 3) compliance. Finally, the court held that data-protection issues did not require AF (No 3) disclosure.

Procedural outcome: The court determined the preliminary legal issues, applied the AF (No 3) standard to the facts, and made directions for the Secretary of State to clarify material in closed session; the final substantive determination on the continued imposition of the obligations remains for the substantive hearing.

This is a first-instance decision in which the court held that article 6(1) applies to a section 11(2)(d) review of section 9 post-return obligations where those obligations amount to a direct and material interference with private life under article 8. The right of abode remains an immigration prerogative, but section 9 obligations are legally discrete and can engage civil rights. On the facts, the obligations were sufficiently onerous to engage AF (No 3) disclosure. The court required the Secretary of State to clarify her closed case and directed further disclosure steps; it refused broad untargeted disclosure requests and held that data-protection rights did not attract AF (No 3) disclosure.