QX v Secretary of State for the Home Department

Article 6(1) applies to a review of a temporary exclusion order where permitted obligations interfere with civil rights and the imposition review will substantially influence the review of those obligations. The reviews must be assessed in substance, not treated as isolated statutory procedures.

The right of abode is not itself a “civil right” within article 6(1). Its domestic source and method of enforcement do not determine its autonomous Convention classification. Nevertheless, where the order provides the legal basis for intrusive obligations, and undisclosed evidence in the imposition review may establish findings affecting the obligations review, article 6(1) applies to both. Fairness therefore requires appropriate disclosure at the imposition review as well as the obligations review.

QX, a British citizen who had lived in Syria, was made subject to a temporary exclusion order under the Counter-Terrorism and Security Act 2015. After his return to the United Kingdom, he was required to report daily to a police station and attend mentoring appointments. He applied under section 11 to review the order, the statutory conditions supporting it, and the obligations.

The High Court held that article 6(1) applied to the obligations review but not the imposition review. The Court of Appeal allowed QX’s appeal, holding that the imposition review was potentially decisive of the article 8 rights affected by the obligations: [2022] EWCA Civ 1541; [2023] KB 472.

The Secretary of State appealed. The issue was whether article 6(1) applied to the review of the decisions that conditions A and B were met when the order was imposed and that condition B continued to be met.

1. Appeal dismissed unanimously. Lord Reed gave the judgment, with which Lord Lloyd-Jones, Lord Hamblen, Lord Burrows, Lord Stephens, Lady Rose and Lady Simler agreed. Article 6(1) applied to the imposition review in the circumstances of this case. Disclosure required by article 6(1) concerning the Syria allegation had to be provided at that review as well as at the obligations review.

2. The right of abode of a British citizen remains a fundamental common law right, notwithstanding the Immigration Act 1971. However, whether a domestic right is a “civil right” under article 6(1) depends on its substantive nature within the autonomous Convention meaning. It does not depend on whether the right originates in common law or statute, or on how domestic law permits its enforcement.

   The reasoning in Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20 went further than European authority justified in treating the right to enter and remain as a civil right. In particular, extradition authority and article 3 of Protocol No 4 indicated that the European Court would not regard the right of abode as a civil right. The Supreme Court expressed no view on whether the result in Pomiechowski could be supported on other grounds.

3. Proceedings which do not themselves determine a civil right may nevertheless attract article 6(1) where their outcome is capable of substantially influencing or determining civil rights in linked proceedings. The inquiry is practical and context-sensitive. Relevant matters include the dispositive capacity of the first proceedings, the closeness of the link, whether the proceedings have the same object, and any countervailing policy considerations.

4. The temporary exclusion order and its obligations were effectively two components of a single protective mechanism. The obligations depended legally on a valid order, endured only while it remained in force, and would fall if it were quashed. The imposition and obligations reviews also overlapped in their substance, evidence and likely procedure.

5. If article 6(1) did not apply to the imposition review, the Secretary of State could rely there on closed evidence which QX could not fairly challenge. Findings made from that evidence would then materially affect the obligations review, where the court would not proceed with a clean slate. The imposition review would therefore have a substantial influence on the determination of the civil rights affected by the obligations.

6. The Court of Appeal had not decided that the specific disclosure standard in AF (No 3) necessarily applied to the imposition review. That question remained open. Independently of article 6, the common law right to a fair trial applies to every section 11 review and does not depend on classifying the interests at stake as civil rights.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was dismissed unanimously. The court upheld the conclusion that article 6(1) applied to the imposition review in the circumstances: [2024] UKSC 26.
2. Court of Appeal: QX’s appeal was allowed because the High Court had erred in holding that article 6(1) did not apply to the imposition review. The Secretary of State’s cross-appeal concerning an order for witness evidence was also allowed: [2022] EWCA Civ 1541; [2023] KB 472.
3. High Court: Farbey J held that article 6(1) applied to the obligations review but not to the imposition review, and that QX was not entitled to AF (No 3) disclosure for the latter: [2022] EWHC 836 (Admin). Her earlier judgments addressed the application of article 6 and disclosure in the obligations review: [2020] EWHC 1221 (Admin); [2021] QB 315; and [2020] EWHC 2508 (Admin).