QX v Secretary of State for the Home Department

This appeal considered the procedural and disclosure rights of a British citizen subject to a temporary exclusion order (TEO) under the Counter‑terrorism and Security Act 2015, in particular the interaction of article 6(1) ECHR and the closed material procedures. The court held that a challenge to a TEO (and hence a successful challenge to Conditions A or B) can be decisive for civil rights (notably Article 8 rights affected by post‑return obligations) and therefore article 6(1) applies to such a challenge. As a consequence a person bringing such a challenge may be entitled to disclosure in accordance with the principles in AF (No 3). By contrast, where the statutory scheme confines the court to a judicial‑review style review of the Secretary of State’s national security assessment (as enacted in the 2015 Act), the court will generally not supersede the Secretary of State’s fact‑finding role; in that context ordering cross‑examination of a national security witness on whether Conditions A and B were met would exceed the court’s function.

Background and procedural posture:

• The appellant (QX), a British citizen, was subject to a TEO imposed under the Counter‑terrorism and Security Act 2015 after return from Syria; a section 9 notice imposed reporting and appointment obligations after return. QX brought review proceedings in the High Court and the matter proceeded through three preliminary hearings before Mrs Justice Farbey, producing three judgments. The case reached the Court of Appeal by permission of the judge.

The issues before the Court of Appeal included whether article 6(1) ECHR applied to challenges to the Secretary of State’s decisions that Conditions A (reasonable suspicion of involvement in terrorism‑related activity abroad) and B (necessity to protect the public) were met, whether such challenges attracted AF (No 3) disclosure, and whether the judge had power (and should) to order cross‑examination of a national security witness on those questions.

The court's findings (concise):

1. The court held that a successful challenge to the Secretary of State’s decision to impose a TEO would be decisive for civil rights because quashing the TEO would ordinarily remove the post‑return obligations interfering with Article 8. Accordingly article 6(1) applies to such challenges and disclosure complying with AF (No 3) may be required.
2. The court took the view that it was unnecessary to decide whether and how Pomiechowski binds the court in this context; instead it concluded on the facts that Article 6 applies because the decision would be decisive for civil rights.
3. The court distinguished earlier judicial treatment of control orders under the Prevention of Terrorism Act 2005: the 2015 Act’s scheme assigns the substantive national security decision‑making role to the Secretary of State and confines the court to a judicial‑review style review. Accordingly the judge was right to refuse to order cross‑examination of a national security witness on whether Conditions A and B were met, as that would have required the court to make the primary factual assessment reserved to the Secretary of State.

Relief sought and issues framed:

• (i) QX sought review and quashing of the TEO and of post‑return obligations and appropriate disclosure/review procedure; (ii) the Secretary of State sought to resist expanded disclosure and resisted compulsion to call national security witnesses.

Reasoning (concise):

1. The court analysed the statutory scheme of the 2015 Act and compared it with the 2005 Act and the control‑order cases; it concluded that although AF (No 3) applies where article 6(1) is engaged, the court’s procedural powers under the 2015 Act do not permit re‑taking the Secretary of State’s national security assessment and so do not justify ordering cross‑examination on the primary Conditions A and B findings.
2. The court therefore allowed the appeal on the disclosure point (ground i) and dismissed the ground seeking cross‑examination on Conditions A and B (ground ii); it also allowed the Secretary of State’s cross‑appeal quashing the judge’s case‑management direction that compelled the Secretary of State to call a national security witness in circumstances where she did not wish to do so.

Appeal allowed in part. The court held that a judicial review challenge to a TEO (and to the Secretary of State’s decisions that Conditions A and/or B are met) can be decisive of civil rights and therefore article 6(1) applies so that disclosure in accordance with AF (No 3) may be required; but the 2015 Act confines the court to a judicial‑review style function in relation to the Secretary of State’s national security assessments, so the judge was right not to order cross‑examination of a national security witness on whether Conditions A and B were met. The judge’s order compelling the Secretary of State to call a national security witness was beyond her powers and was quashed on cross‑appeal.

Appeal from the High Court (Farbey J) following preliminary and case‑management hearings (three judgments referred to as judgment 1, judgment 2 and judgment 3). The order under challenge was made for reasons given in the judgment dated 7 April 2022 in the High Court (PTA/10/2019). The present judgment of the Court of Appeal is [2022] EWCA Civ 1541.