QX v Secretary of State for the Home Department

In a review of temporary exclusion orders, the court must apply judicial review principles and respect the Secretary of State’s institutional competence and democratic accountability in national security matters. It must not substitute its own assessment of whether the claimant engaged in terrorism-related activity or whether a temporary exclusion order was necessary.

That restraint does not make the review automatic. The court must scrutinise the evidence and ensure procedural fairness. Where article 6 applies to onerous in-country obligations, fairness may require oral evidence and cross-examination of a national security witness on matters relevant to the necessity and proportionality of those obligations. The witness evidence need not extend to the underlying conditions for imposing or continuing the temporary exclusion order where article 6 does not apply.

The claimant, a British citizen who had returned from Syria to the United Kingdom under a permit to return, was made subject to a temporary exclusion order and in-country obligations under the Counter-Terrorism and Security Act 2015. The order and obligations later expired.

He sought review of the order and obligations, arguing that article 6 required further disclosure and that a national security witness should provide evidence and be available for cross-examination. The preliminary issues were whether article 6 applied to the challenge to the order, whether the court could direct oral evidence, and whether fairness required such evidence in relation to the reporting and appointments obligations.

1. Review of the temporary exclusion order. The statutory review distinguishes the conditions for imposing or continuing a temporary exclusion order from the necessity and proportionality of in-country obligations. The court must apply judicial review principles and must not substitute its own assessment for that of the Secretary of State.
2. In national security cases, substantial restraint is required because of the Secretary of State’s institutional competence, access to specialist intelligence and democratic accountability. The court must nevertheless scrutinise the evidence and may intervene where the Secretary of State’s view cannot reasonably be entertained on public law grounds. Reasonable suspicion is not the same inquiry as proving facts to a standard of proof. The court reviews whether the material reasonably supported the suspicion, rather than deciding the truth of the underlying allegation.
3. Article 6 did not apply to the claimant’s challenge to the imposition of the temporary exclusion order or to the continuing necessity of the order. The statutory scheme qualified the claimant’s right of abode and concerned public-authority prerogatives. The claimant was therefore not entitled to the AF (No 3) disclosure standard in relation to Conditions A or B.
4. The court had power, including under CPR 3.1(2)(m), to direct witness evidence and cross-examination where required for fairness. However, oral evidence in judicial review is exceptional. On the facts, the absence of a national security witness did not make the review of the temporary exclusion order unfair. Cross-examination on Conditions A and B was refused.
5. Section 9 obligations. Article 6 applied to the review of the onerous reporting and appointments obligations. The court had a heightened duty to scrutinise closed material carefully because the Special Advocates could not obtain instructions on it. Deference to the Secretary of State remained high, but did not amount to simple acceptance.
6. Fairness required the national security case to be tested by oral evidence to the extent that it was relevant to the necessity and proportionality of the section 9 obligations. The Secretary of State was directed to provide a witness statement adopting the existing open and closed material as evidence in chief, with the maker available for cross-examination at the final hearing. Cross-examination was confined to the section 9 issues. The application was allowed to that extent.

This was a first-instance preliminary judgment in ongoing Administrative Court proceedings. The judgment refers to earlier preliminary rulings in the same proceedings, including [2020] EWHC 1221 (Admin) and [2020] EWHC 2508 (Admin).