Challenge to the use of the Royal Prerogative to withdraw a passport on grounds of suspected involvement in terrorism


Re: XH & Anor v Secretary of State for the Home Department [2016] EWHC 1898 (Admin)

XH had his passport cancelled as it was assessed that he was likely to travel overseas to engage in further terrorism-related activity in the future, presenting a risk to the UK’s national security. AI had his passport cancelled on the grounds that he aspired to travel to Syria or Iraq in the future to provide support to the Islamic State. Both passports were cancelled pursuant to the exercise of a royal prerogative by the Home Secretary. Various communications containing reasons for the cancellation were provided to the claimants.

The claimants argued that the Home Secretary was required to use powers under the Terrorism Prevention and Investigation Measures Act 2011 (TPIM) to cancel passports, rather than the royal prerogative. They argued that the statute impliedly curtailed the prerogative, as it was intended to be a comprehensive code for the exercise of civil powers where alleged terrorists were at issue. The court found that the TPIM Act not displace the royal prerogative to cancel passports, as there were major differences between the two sources of power, without sufficient overlap to conclude that TPIM Act impliedly intended to displace the prerogative powers.

The court also rejected AI’s argument that the royal prerogative powers were insufficiently precise to be lawful under the common law, EU law and the ECHR.

The court accepted XH’s that EU free movement law was engaged where passport cancellation was concerned, but found that the restriction on this right was justified in the interests of national security. It also found that judicial review of the Home Secretary’s decision was an adequate remedy for the purposes of EU law, and that the right to good administration had not been compromised by the decision. The court reached similar conclusions on the ECHR arguments.

Finally, the court rejected XH’s argument that concerns over a lack of safeguards where legal professional privilege was at issue meant that he suffered a violation of the right to a fair hearing. Theoretical concerns that security services may be abusing this privilege ought to be brought before the Investigatory Powers Tribunal, and would only be relevant for SIAC if a specific incident was raised.

Hugh Southey QC was involved in this case.