QX v Secretary of State for the Home Department [2024] UKSC 26

QX, a British citizen, was subject to a temporary exclusion order and reporting obligations after living in Syria. He challenged whether Article 6(1) fair trial rights applied to reviews of the order's imposition. The Supreme Court held that Article 6(1) applies to imposition reviews where obligations interfere with civil rights, as the reviews are inextricably linked.

Facts

QX, a British citizen, lived in Syria from 2014 to 2018. The Secretary of State imposed a temporary exclusion order (TEO) upon him under the Counter-Terrorism and Security Act 2015, based on reasonable suspicion of involvement in terrorism-related activity outside the United Kingdom. Upon his return, obligations were imposed under section 9 of the Act, including daily police reporting and mandatory attendance at mentoring sessions. QX sought judicial review of both the TEO’s imposition and the obligations, arguing they violated his Article 8 right to private life and that Article 6(1) fair trial guarantees applied to the proceedings.

Background to the Legislative Framework

The 2015 Act permits the Secretary of State to impose TEOs on individuals reasonably suspected of terrorism-related activity abroad. Section 9 permits ‘permitted obligations’ including reporting requirements and attendance appointments. Section 11 provides for court review of these decisions, applying judicial review principles. Schedule 3 and CPR Part 88 establish procedures for handling closed material.

Issues

The principal issue was whether Article 6(1) of the European Convention on Human Rights applies to an application under section 11 of the 2015 Act for review of the Secretary of State’s decisions relating to the imposition of a TEO, specifically whether conditions A and B were met and continued to be met.

Judgment

Lord Reed, delivering the unanimous judgment, dismissed the Secretary of State’s appeal and held that Article 6(1) applies to the imposition review where obligations imposed under section 9 interfere with the individual’s civil rights.

The Right of Abode

The Court examined whether the right of abode constitutes a ‘civil right’ under Article 6(1). Lord Reed analysed relevant European Court of Human Rights jurisprudence, including Maaouia v France and Monedero Angora v Spain, concluding that extradition and immigration proceedings do not generally engage Article 6(1) civil rights, and that Article 3 of Protocol No 4 to the Convention suggests member states did not intend such proceedings to fall within Article 6(1).

“it is reasonable to conclude that the European court would not regard the right of abode in the United Kingdom as a civil right within the meaning of article 6(1).”

Linked Proceedings and Civil Rights

The Court applied principles from R (G) v Governors of X School, examining when proceedings not directly determining civil rights may still engage Article 6(1) due to their connection with other proceedings that do. Lord Reed held that the imposition review and obligations review are inextricably linked:

“they are ‘so interrelated that to deal with them separately would be artificial and would considerably weaken the protection afforded in respect of the applicants’ rights.'”

The obligations (which admittedly interfered with Article 8 rights, recognised as civil rights) could only be validly imposed if the TEO was validly imposed. Evidence used to justify the TEO in closed proceedings would influence the obligations review, meaning the claimant would not have a fair opportunity to challenge findings made without proper disclosure.

“where (1) the permitted obligations result in an interference with civil rights, (2) the validity of those obligations depends on the validity of the order which enabled them to be imposed, and (3) evidence may be adduced at the imposition review in justification of the decision to impose the order which the individual will not have a fair opportunity to rebut or explain at the obligations review… article 6(1) must also apply to the imposition review.”

Implications

This decision ensures that individuals subject to TEOs with intrusive obligations receive Article 6(1) fair trial protections throughout review proceedings. It prevents the Secretary of State from relying on closed material in imposition reviews while avoiding disclosure obligations that would apply in obligations reviews. The judgment emphasises substance over form in determining the application of Article 6(1), ensuring that linked proceedings are treated consistently where civil rights are engaged. The decision also clarifies that the common law right to a fair trial remains fundamental and does not depend on categorisation under Article 6(1).

Verdict: Appeal dismissed. Article 6(1) of the European Convention on Human Rights applies to the review of the Secretary of State’s decisions to impose a temporary exclusion order, where obligations imposed under section 9 of the Counter-Terrorism and Security Act 2015 interfere with the individual’s civil rights.

Source: QX v Secretary of State for the Home Department [2024] UKSC 26