Jihad and the Cancellation of British Passports

R (XH and AI) v SSHD [2017] EWCA Civ 41 (02 February 2017)

Fighting in foreign wars is a rising trend among British Muslims. Now that more than 400 British jihadis have returned home they will inevitably indoctrinate impressionable youth into extremism. Ronald Fiddler, or Jamal al Harith, received £1m in compensation for abuses suffered in Guantánamo but he recently carried out a suicide bombing on behalf of the “Islamic State” (ISIS) group. The ironies are intense. Wounded servicemen are less fortunate and complain that they have to beg, borrow and steal to come up with funds to cope with the horrific life changing injuries that they suffered in the line of duty in Iraq and Afghanistan. Omar Deghayes was also detained in Guantánamo. Like hundreds of other British Muslims, his three young nephews went to Syria to overthrow the Damascus regime and two of them have reportedly been killed. Disgruntled Muslims in the West find it attractive to turn to extremism and violence to express rebellion against western values. The conflict is set to expand because of rising global resentment against Muslims who are perceived as being bad. Last month’s terrorist attack on Parliament by Khalid Masood – who converted to Islam like Fiddler – and Thursday’s thwarted attempt by Mohammed Khalid Omar Ali have only added further fuel to the fire.

XH and AI are British citizens who are considered a threat to the UK’s national security because of their ISIS links. Their passports were cancelled, using prerogative power, to prevent them from travelling to Syria/Iraq for extremist activities. It was contrary to the public interest for them to hold a British passport. The case raised important issues involving prerogative power and EU law. XH has convictions for criminal offences such as robbery, attempted robbery and possession of a bladed article. He was also found in possession of anti-American and anti-Israeli propaganda and violent jihad related videos. AI’s brother Mohammed travelled to Syria and is presently believed to be in Iraq supporting ISIS. From the authorities’ standpoint, the danger of them slipping away was such that it was appropriate to cancel their passports. XH was informed that he could travel within the EU, facilitated by a single-use travel document, if the risk was deemed to be manageable.

Context

Two main issues arose. First, whether the exercise of prerogative power was invalidated because it had been impliedly abrogated by the Terrorism Prevention and Investigation Measures Act 2011 (“the TPIM Act”). Second, whether the EU law rights had been breached because the cancellation of the passports was disproportionate and there were insufficient procedural safeguards. Dismissing both appeals Etherton MR, Lloyd Jones and Sales LJJ held that the home secretary’s prerogative power to cancel the passports of British citizens involved in terrorism had not been impliedly abrogated by the TPIM Act (amended by the Counter-Terrorism and Security Act 2015). Moreover, any restriction on freedom of movement had been in accordance with both EU and domestic law.

XH denied any involvement in religious extremism or terrorism-related activities and any intention to travel to Syria. He argued that proportionality was not established with the result that the type of personal conduct required in order to comply with article 27(2) of Directive 2004/38/EC, the Citizens’ Directive, had also not been demonstrated. On 23 December 2016, AI was convicted of an offence under section 38B of the Terrorism Act 2000 for failing to disclose information relating to another person’s plans to join ISIS in Syria or Iraq.

Divisional Court

Hamblen LJ and Cranston J found that prerogative power to cancel someone’s passport had not been abrogated by legislation. While such cancellation restricted free movement and engaged EU law, the policy on the exercise of prerogative power was not unlawful. Moreover, an executive decision to cancel a passport involved an evaluative exercise and judicial review served as an effective remedy for aggrieved persons. All the grounds of challenge were dismissed.

Correspondence produced by the home office disclosed the essence of the grounds constituting the basis of the decision in question in a manner which took due account of the necessary confidentiality of the evidence. The approach complied with the approach in ZZ (France) (C-300/11, see here) . In XH’s case, the decision-maker had complied with the principle of proportionality as detailed in article 27 of the Directive. Clearly, the decision to cancel XH’s passport was based exclusively on his personal conduct. It was based on national security reasons and met the justification requirements of article 27.

Article 30 of the Directive and article 47 (right to an effective remedy and to a fair trial) of the Charter of Fundamental Rights did not require the court to make findings of fact for itself. Instead, it was enough to examine the case in accordance with the conventional approach to judicial review. Moreover, article 41 (right to good administration) of the CFR imposed no legal requirement of prior consultation with XH before the decision to cancel his passport had been taken.

The Court of Appeal

The appeals were dismissed on all grounds.

(i) Prerogative

Everett [1989] 1 QB 811 left no doubt that passports are issued under the Royal Prerogative in the home secretary’s discretion. Although the prerogative was dubbed “a relic of a past age” in Burmah Oil [1964] UKHL 6, Etherton MR repeated the majority view in Miller [2017] UKSC 5 that it must not be construed as “either anomalous or anachronistic”.

The home secretary’s written ministerial statement (WMS, 25 April 2013) sets out the government’s policy on the exercise of prerogative power. It explains that there is no statutory right to have access to a passport and there is no entitlement to a passport. The WMS says that the withdrawal of a passport is the same as cancellation of a passport. De Keyser’s Royal Hotel Limited [1920] UKHL 1, Fire Brigades Union [1995] UKHL 3 and Laker Airways [1976] EWCA Civ 10 were all invoked by XH and AI.

It was common ground, and the starting point, that the cancellation of a passport was conspicuously absent from the travel measures specified in paragraph 2(3) of schedule 1 of the TPIM Act. The case rested on establishing a necessary implication in the statute whether the prerogative powers of refusal to issue and cancel passports were abridged or put into abeyance by the statutory scheme. Morgan Grenfell [2002] UKHL 22 laid down a strict test for such a necessary implication where it was said that a necessary implication is a matter of express language and logic not interpretation.

“To suppose that Parliament simply overlooked that powers to refuse to issue and to cancel a passport existed,” seemed “fanciful” to Etherton MR who said at para 92 that the “key to their omission” and their critical difference in comparison with the restrictions specified in paragraph 2(3)(c) and (d) is that the individual is required to do or to refrain from doing something under the statutory provisions whereas exercising the omitted powers is completely autonomous of “anything which the individual is willing or unwilling to do.” A TPIM notice only imposes an obligation on its subject after personal service after which failure to adhere to the obligation results in criminal sanctions and his Lordship explained that:

93. … By contrast, the power to refuse to issue and to cancel a passport relates to the existence and validity of the passport itself.

The travel measure in question aimed to restrict travel within the UK or to restrict exiting the UK and nothing indicated that the measure was applicable to British nationals who are overseas. The primary form of a TPIM was directed at travel within the UK or to restricting leaving the UK. The upshot was that the risks posed by the gaps in security exposed by the inability to serve a TPIM personally could only be mitigated by exercising:

98. … the prerogative power to cancel the individual’s passport wherever the individual may be.

It was extremely improbable that Parliament intended to enhance risks to public security by eliminating the power to cancel passports in the present context without expressly providing for it. The point was amplified because the statute in play created vast anti-terrorism powers. Someone whose passport had been cancelled by the exercise of prerogative power was not without a remedy because such an action was challengeable by of judicial review. In light of the high costs associated with judicial review applications, Etherton MR’s point – “an individual whose passport has been cancelled is not left without a remedy” because of the availability of judicial review – has been severely criticised by Tom Hickman as being Public Law’s Disgrace.

The court went on to say that someone whose passport had been cancelled could also reapply for another passport. Reliance placed in Roskill LJ’s judgment in Laker Airways did not shoehorn the situation in the appellants’ favour and the inescapable conclusion was that, as claimed in the WMS, the prerogative power to cancel a passport remained vested in the executive.

(ii) EU Law

On the EU law ground, the court addressed a wide range of themes such as proportionality, sufficient basis, disclosure, fact finding and the right to good administration. XH argued that cancellation of his passport breached his EU law rights and the parties agreed that EU law was engaged.

Proportionality

Etherton MR agreed with Hamblen LJ and Cranston J’s assessment that the decision to cancel XH’s passport was rooted exclusively in his personal conduct and was made for national security reasons.

It was held that restricting XH’s freedom of movement was proportionate both under national and EU law. Following Pham [2015] UKSC 19 (see here), a strong justification was needed to interfere with the fundamental nature of the rights involved. But the court was satisfied that the executive had shown the existence of a genuine, present and sufficiently serious threat to a vital national interest. As demonstrated by Van Duyn (Case 41/74) and Jipa (Case C-33/07), member states enjoy margin of appreciation in evaluating national security needs. It would have been much less effective to make a TPIM because it would necessarily be limited to a two-year period and would only be renewable in the event of new terror-related activity being undertaken.

Sufficient Basis

The Court of Appeal also agreed with the Divisional Court’s conclusion that a sufficient basis existed for making the decision. Sufficient material was before Hamblen LJ and Cranston J to allow a proper assessment of proportionality and they had considered the case in view of all the material before them. Moreover, since the ruling, in view of the material considered by the court the special advocates had acknowledged that they were unable to challenge the substance of the executive’s decision on proportionality or rationality grounds.

Disclosure

Unless it is contrary to the interests of state security, article 30 of the Directive lays down a duty to inform an individual “precisely and in full” of the public security grounds on which the decision to restrict their freedom of movement is based. XH complained that the insufficiency of information regarding the allegations made against him hampered his ability to articulate an appropriate response. However, the materials relied upon by the executive had been tested by special advocates who concluded that disclosure issues had been satisfied to the standard expected in ZZ (France) and no further disclosure was required.

Etherton MR was satisfied that the Divisional Court had reviewed the closed evidence and arrived at the conclusion that special advocate’s position was appropriate. Hamblen LJ and Cranston J were equally correct in their own conclusion that the executive had complied with her disclosure requirements.

Fact-finding

Unhappiness was expressed regarding the sufficiency of conventional judicial review and it was argued that, read together with article 47 of the CFR, article 31(3) of the Directive requires the procedure applied by the reviewing court to include a fact-finding process. Emphasis was supplied to a “full jurisdiction” test under article 47 (which corresponds to article 6 of the ECHR) to determine the lawfulness of cancelling XH’s passport. The lack of safeguards of independence in the exercise of executive prerogative power was also presented as pointing to the inadequacy of conventional judicial review. Proportionality based arguments were also made.

However, after conducting a review of complex authorities, Etherton MR was convinced that the application of conventional standards of judicial review by the Divisional Court did not result in a breach of the Directive, article 6 of the ECHR or article 47 of the CFR.

Article 41 of the CFR

In relation to the right to good administration under article 41, it was held that the executive’s failure to provide XH an opportunity to make representations before she cancelled his passport did not infringe his EU or domestic rights. This was so irrespective of the court’s assumption that the right to good administration represents a general principle of EU law. Notably, in MM (Case C-277/11) the CJEU interpreted the right to be heard as “very broad scope in the EU legal order” which:

85. … must apply in all proceedings which are liable to culminate in a measure adversely affecting a person.

The Court of Appeal said that a real risk existed in relation to giving advance notice in the manner demanded because such an action would have warned XH about the executive’s intentions and would only undermine the whole purpose of cancelling his passport. Etherton MR said that permitting XH to make representations before reconsideration was sufficient to satisfy the right to good administration and the observance of the rights of the defence.

Comment

In other interesting news, Abu Hamza’s son Sufiyan Mustafa was recently stripped of his British passport for fighting in Syria, albeit not for ISIS. Sufiyan seems to have been less lucky than his criminal relative CS (Morocco) who was freakishly given greater rights of residence than the poor battered woman NA (Pakistan).

In K2 v UK [2017] ECHR 238, the ECtHR declared a British jihadi’s application inadmissible. K2 was originally Sudanese. He went to fight in Somalia. His claim was clearly without merit and the court explained that article 8 is not construable as requiring states to facilitate the return of every individual deprived of citizenship so as to pursue an appeal against the deprivation decision.

Stripping Asma al-Assad of her British citizenship was recently mooted in the British media because of a letter sent to Amber Rudd by the Liberal Democrats. Losing her British citizenship is the price that “the first lady of hell” – once a “desert rose”, but who has fallen from grace – might have to pay for supporting the Syrian state’s war on terror.

Of course, deprivation of British citizenship is a much more draconian measure in comparison to merely cancelling a passport. The dichotomy is that the mother of three, who was known as “Emma” in an earlier life, is hardly in a position to criticise her husband’s regime.

Strangely enough, Peter Ford, the former British ambassador to Syria (2003-2006), has made controversial claims that Bashaar al-Assad “has an analytical mind and knows that actions have consequences” and is therefore “not mad” enough to use chemical weapons. I am no friend of Bashaar al-Assad or Vladimir Putin and both men clearly have the blood of innocents on their hands. But it is equally clear that the Americans, the British, the French and their Turkish and Saudi proxies have failed the people of Syria just like they failed the people of Iraq who were left in the lurch at Saddam’s mercy after being incited to revolt against the dictator during the first Gulf War.

Nevertheless, the failure to uproot the Syrian regime does ironically have a bright side: the genocidal maniacs are committed secularists! After all, as the Syrian first lady herself says:

Our fight with terrorism is an existential battle.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 6, CFR, Citizens Directive, CJEU, Court of Appeal, ECHR, European Union, Judicial Review, Miller, Politics, Proportionality, Syria, Terrorism and tagged , , , , , , , . Bookmark the permalink.

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