QX v Secretary of State for the Home Department

The Supreme Court held that the right to a fair hearing under Article 6(1) of the European Convention on Human Rights applies to an application under section 11 of the Counter-Terrorism and Security Act 2015 to review the Secretary of State’s decision to impose a temporary exclusion order where the in-country obligations imposed under section 9 are sufficiently intrusive and are inextricably linked to the order. The court accepted that Article 6(1) already applied to an obligations review because the reporting and appointment obligations interfered with the claimant’s Article 8 rights. It concluded that, where the validity of those obligations depends on the validity of the order and evidence relied on at the imposition stage would materially influence the obligations review, Article 6(1) must also apply to the imposition review so that the affected person has a fair opportunity to challenge the national security case. The consequence is that disclosure principles established in AF (No 3) are required to be applied at the imposition review in such cases.

Background and parties:

• The claimant, QX, a British citizen who had lived in Syria, was the subject of a temporary exclusion order (TEO) imposed under the Counter-Terrorism and Security Act 2015. The Secretary of State imposed in-country obligations under section 9 (reporting and attendance at appointments).
• QX applied under section 11 for review of the Secretary of State’s decisions both to impose the TEO (and that conditions A and B were met) and to impose the permitted obligations; the proceedings involved contested issues of disclosure and closed material.

Procedural history:

• High Court judgments addressed disclosure and the applicability of Article 6(1) ([2020] EWHC 1221 (Admin); [2020] EWHC 2508 (Admin); [2022] EWHC 836 (Admin)). The Court of Appeal allowed the claimant’s appeal on Article 6(1) applying to the imposition review ([2022] EWCA Civ 1541; [2023] KB 472). The Secretary of State appealed to the Supreme Court.

Nature of the claim and issues:

• QX sought review under section 11 of the lawfulness of (a) the Secretary of State’s decisions that conditions A and B were met when the TEO was imposed, and that condition B continued to be met, and (b) the decision to impose obligations under section 9.
• The principal issues were whether Article 6(1) applies to the imposition review (in addition to the obligations review) and, if so, whether disclosure rules exemplified by AF (No 3) apply to the imposition review.

Court’s reasoning:

• The court analysed the autonomous meaning of "civil rights" under Article 6(1), the legislative scheme (sections 2–11 of the 2015 Act and Schedule 3), and the procedural rules in CPR Part 88.
• Although a TEO and permitted obligations are conceptually distinct, in practice they are closely connected: obligations can be imposed only while a TEO is in force, obligations are devised and implemented as part of a single administrative process, and quashing a TEO quashes accompanying obligations.
• Where obligations interfere with "civil rights" (for example, Article 8 rights) and where evidence relied on to justify the TEO at the imposition review would materially influence or determine the obligations review, fairness requires Article 6(1) protection at the imposition review. Otherwise the obligations review would be conducted against findings made on the basis of evidence the claimant had no fair opportunity to challenge.
• Accordingly, the court dismissed the Secretary of State’s appeal and required that disclosure of the evidence underpinning the Syria allegation be given at the imposition review in accordance with the standards required by Article 6(1).

Wider context: the court emphasised the role of section 11 reviews in securing fairness where orders are imposed without prior hearing and the need to apply Article 6(1) pragmatically so that fair trial guarantees are not rendered illusory.

Appeal dismissed. The Supreme Court held that Article 6(1) ECHR applies to a section 11 imposition review of a temporary exclusion order where the in-country obligations imposed under section 9 interfere with civil rights and the imposition review is sufficiently linked to those obligations so that evidence relied on at the imposition stage would materially influence the obligations review. For that reason the disclosure principles exemplified in AF (No 3) must be applied to the imposition review in such cases.

High Court (Farbey J): preliminary and substantive rulings on disclosure and Article 6 ([2020] EWHC 1221 (Admin); [2020] EWHC 2508 (Admin); [2022] EWHC 836 (Admin)). Court of Appeal allowed the claimant’s appeal on Article 6 applying to the imposition review: [2022] EWCA Civ 1541; reported [2023] KB 472. Secretary of State appealed to the Supreme Court: [2024] UKSC 26 (appeal dismissed).