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High Court upholds Home Secretary’s decision to cancel passports of British citizens

High Court upholds Home Secretary’s decision to cancel passports of British citizens

This case demonstrates that possession of a British passport is precarious. Having a passport is a privilege, not a right, and the Home Secretary can exercise his power under the royal prerogative to cancel a passport if he thinks it is in the public interest.

In B & Anor v Secretary of State for the Home Department [2018] EWHC 2651 (Admin), the claimants had been trying to travel to Bulgaria as part of a humanitarian aid convoy, which would eventually deliver aid to the Turkish/Syrian border. They were stopped by police in Dover and their passports seized under the Counter-Terrorism and Security Act 2015. The seizure was extended twice under powers granted by that Act, up to the maximum period allowed. After that the Security Minister cancelled both passports.

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The claimants’ main ground of challenge was that the cancellation decision was not necessary and proportionate. The Home Secretary has previously accepted, in a 2013 written ministerial statement, that those requirements must be met before he can cancel a passport. Moreover, those requirements are necessary under EU law because of protections imposed by the Citizens’ Rights Directive 2004. Mr Justice Nicol concluded that test had been met in this case:

55. In each case the Minister endorsed the views of Home Office officials that each Appellant was a person whose past, present or future activities actual or suspected was so undesirable that his passport should be cancelled. I have subjected the factual foundation for the Security Minister’s conclusions to the intense investigation which the law requires, bearing in mind the national security element, but also the impact of cancellation of passports on the Claimants’ private lives. In my judgment, there was sufficient [evidence] to support those conclusions. I also agree with Ms Lieven’s response to Ground 1 for the reasons that she gives. The cancellation of each Claimant’s passport was necessary and proportionate.

68. My view as to Ground 1 is reinforced by the closed evidence.

We cannot really assess whether Nicol J has properly reviewed the closed evidence relied upon by the Home Office because we do not know its content or quality. On the face of the judgment, there does not appear to have been much evidence against either claimant, apart from an allegation that one of them entered Syria in 2013 for a couple of weeks. The judge also refused permission to apply for judicial review on the ground that Parliament has already curtailed the prerogative power to cancel passports, following the Court of Appeal decision in R (XH and AI) v Secretary of State for the Home Department [2017] EWCA Civ 41.

After Brexit the Home Secretary will be able to alter the rules for cancelling passports because the general principles provision of the Citizens’ Rights Directive has no equivalent in domestic legislation. If that happened the Home Office would be able to circumvent the safeguards found in anti-terrorism legislation by using the cancellation power.

 

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