The Supreme Court considered whether Article 6(1) ECHR’s fair hearing guarantee applies to judicial review of a decision to impose a temporary exclusion order under the Counter-Terrorism and Security Act 2015, where associated obligations interfere with the subject’s civil rights. The Court held it does, dismissing the Secretary of State’s appeal.
Background
The Secretary of State made a temporary exclusion order (TEO) against QX under the Counter-Terrorism and Security Act 2015, with permission from the High Court. The order was based on suspected involvement in terrorism-related activity in Syria. QX denied the allegation. On his return to the United Kingdom, he was required to report to a police station and attend mentoring appointments.
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QX sought review under section 11 of both the decision to impose the order and the decision to impose the obligations. The validity of the reporting and mentoring obligations depended on the validity of the order.
The Issue(s)
The principal question was whether Article 6(1) of the European Convention on Human Rights (‘ECHR’), guaranteeing the right to a fair hearing in the determination of civil rights and obligations, applied to the imposition review — that is, to the review of the Secretary of State’s decisions that the statutory conditions for imposing the TEO were met, and the decision to impose and maintain the TEO.
It was common ground that Article 6(1) applied to the obligations review, since the reporting and appointments obligations interfered with QX’s Article 8 rights (respect for private life), which are ‘civil rights’ within the meaning of Article 6(1). The dispute concerned whether Article 6(1) extended to the imposition review, which would determine the lawfulness of the TEO underpinning those obligations.
Sub-issues
Two subsidiary questions arose: (1) whether the right of abode of a British citizen is itself a ‘civil right’ within the meaning of Article 6(1), and (2) whether, irrespective of that, the imposition review was sufficiently linked to the determination of QX’s civil rights (engaged through the obligations) to attract Article 6(1) protection.
The Court’s Reasoning
The right of abode as a ‘civil right’
Lord Reed, giving the sole judgment with which all other Justices agreed, addressed whether the right of abode is a ‘civil right’ under Article 6(1). He examined the earlier Supreme Court decision in Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, where Lord Mance had treated a British citizen’s right of abode as a ‘common (or civil) law right’ falling within Article 6(1). Lord Reed accepted that the right of abode remains a common law right notwithstanding the Immigration Act 1971, rejecting the Secretary of State’s argument that the 1971 Act abolished and replaced it with a purely statutory right. He cited Lord Mance’s analysis in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, where Lord Mance stated:
the common law right to enter and remain within the United Kingdom remains unchanged in respect of those with British citizenship based on their connection with the United Kingdom.
However, Lord Reed respectfully disagreed with the reasoning in Pomiechowski insofar as it treated the right of abode as a ‘civil right’ within the autonomous meaning of Article 6(1). He emphasised that whether a right is a ‘civil right’ under the Convention depends on its substantive nature in the Convention context, not its domestic classification:
Whether the right of abode takes the form under our domestic law of a common law right or a statutory right is not critical to its status as a ‘civil right’ within the meaning of article 6(1). If Lord Mance considered that a common law right was necessarily a ‘civil right’, as para 32 of his judgment might be thought to suggest, then I respectfully disagree.
Lord Reed reviewed European Court of Human Rights (‘ECtHR’) case law, including Monedero Angora v Spain (2008), which held that extradition of a citizen did not involve the determination of civil rights, and Smirnov v Russia (2006), which held that neither citizenship nor a passport constituted a civil right. He also drew on Article 3 of Protocol No. 4 to the ECHR, which separately protects the right of nationals not to be expelled from or denied entry to their own state, reasoning by analogy with Maaouia v France that the contracting states did not intend such rights to fall within Article 6(1). He concluded:
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).
Whether the imposition review is otherwise decisive of civil rights
Having found that the right of abode is not itself a ‘civil right’ under Article 6(1), Lord Reed turned to the question whether the imposition review was nonetheless sufficiently linked to the determination of QX’s undisputed civil rights (his Article 8 rights affected by the obligations) to engage Article 6(1). He applied the principles established in R (G) v Governors of X School [2011] UKSC 30, where Lord Dyson articulated a test derived from ECtHR case law asking whether one set of proceedings would have a ‘substantial influence or effect’ on the determination of civil rights in another set of proceedings.
Lord Reed identified that under the statutory scheme, obligations under section 9 can only be imposed on a person who is subject to a TEO. Therefore, the validity of the TEO is a condition precedent to the validity of the obligations. He noted that in practice, the TEO and the obligations are effectively two component parts of a single mechanism:
although the decision to impose the order and the decision to impose obligations are conceptually distinguishable, and are made under different provisions of the legislation, in practice they cannot ordinarily be clearly separated. In reality, the order and the obligations are in most if not all cases effectively the two component parts of a single mechanism.
Critically, Lord Reed was persuaded by a note submitted by counsel for the Secretary of State during the hearing, which revealed that different closed material might be relied upon in the imposition review from that used in the obligations review, meaning that if Article 6(1) did not apply to the imposition review, the Secretary of State could rely on secret evidence to sustain the TEO without disclosure obligations, while the findings made in the imposition review would then constrain the obligations review:
if the Secretary of State’s submission is accepted, and if the temporary exclusion order is upheld in the imposition review, the claimant will be unable to challenge in the obligations review the findings which were made in the imposition review. The court will not undertake the obligations review with a clean slate…
Lord Reed drew on the language of the ECtHR in Ruiz-Mateos v Spain (1993):
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.’
He concluded that Article 6(1) must apply to the imposition review where, as here, the obligations imposed are sufficiently intrusive to engage the claimant’s civil rights.
The common law right to a fair trial
Lord Reed also observed, obiter, that the domestic common law right to a fair trial should not be overlooked, noting:
The right to a fair trial is fundamental under our domestic law… and does not depend on the categorisation of the rights or interests at stake in the proceedings as ‘civil rights or obligations’ within the meaning of article 6(1).
Practical Significance
This decision clarifies that Article 6(1) ECHR applies to the review of a decision to impose a TEO under section 11 of the 2015 Act, where obligations imposed under section 9 are sufficiently intrusive to interfere with the subject’s civil rights. The practical consequence is that the individual must be given sufficient disclosure of the evidence relied upon by the Secretary of State to justify the TEO, including in respect of closed material, in accordance with the principles in AF (No 3). The decision prevents the Secretary of State from maintaining separate evidential bases for the imposition review and the obligations review where evidence used to justify the order could affect the review of the obligations without a fair opportunity for the claimant to answer it.
The judgment is also significant for its departure from the reasoning in Pomiechowski regarding the right of abode as a ‘civil right’ under Article 6(1), although it expressly leaves open whether the outcome of Pomiechowski was wrong on its facts. The Supreme Court’s analysis of ECtHR case law, including Monedero Angora v Spain, provides important guidance on the autonomous meaning of ‘civil right’ in the Convention context. The decision reinforces the principle that article 6(1) protections cannot be undermined by formal separation of interrelated proceedings where, in substance, they form part of a single mechanism determining the individual’s civil rights.
Verdict: The Supreme Court unanimously dismissed the Secretary of State’s appeal, holding that Article 6(1) ECHR applies to the review under section 11 of the Counter-Terrorism and Security Act 2015 of the Secretary of State’s decisions to impose and maintain a temporary exclusion order, where the obligations imposed under section 9 are sufficiently intrusive to engage the claimant’s civil rights.
Reported citations: [2025] AC 995; [2024] 3 WLR 547; [2024] WLR(D) 376.
Source: QX v Secretary of State for the Home Department [2024] UKSC 26
