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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for the Home Department v GG  EWHC 1193 (Admin) (19 May 2016)
Cite as:  EWHC 1193 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Mr Danny Friedman, QC and Ms Michelle Butler (instructed by Gladstone Solicitors) for the Respondent
Mr Angus McCullough, QC and Ms Shaheen Rahman (Special Advocates instructed by Special Advocates' Support Office)
Hearing dates: 8th 11th March 2016
Crown Copyright ©
Mr Justice Collins:
"I would hold ..that the court is entitled to have regard to findings made in the earlier section 3(10) hearing but will itself (i) have to be satisfied that the facts relied on by the SSHD amount to reasonable grounds for suspecting that the controlee is or has been involved in terrorism-related activity; and (ii) have to give intense scrutiny to the necessity of each of the obligations imposed."
Sir Anthony went on to consider the guidelines set out in the tribunal decision Devaseelan v. SSHD  Imm AR 241. That case concerned the approach which should be adopted to the judge's findings where a human rights claim was made following the previous rejection of an asylum claim. It was said that the previous decision must be the starting point. But that approach was in cases where the appellant had always had full knowledge of all relevant facts. Where, as here, that is not the case, it is clear that the findings in the previous case must be reconsidered in the light of any further evidence resulting from disclosure which was needed to establish that there was compliance with Article 6.
"In order to advance a submission that a control order was valid when made but only succumbed to legal difficulty at a later date, the Secretary of State would have to establish that, in relation to the point for which he is asserting legality, he can satisfy the court as to the reasonable grounds for his suspicion of terrorism-related activity and the need for public protection. However, he could only do that by relying on the material that he is willing to disclose or gist. In other words, he would need to resort now to closed material in a manner not countenanced by AF(No3). Whilst I accept Mitting J's suggestion that, in court, the Secretary of State does not have to rely on all the material that led him to his view about terrorist-related activity and public protection, he does have to rely (with consequential disclosure obligations) on sufficient of it to satisfy the court that his decision to make a control order was not and is not flawed. In these cases, he has chosen not to do so. I shall assume he has reasonable grounds for exercising that choice. However, its consequence is that he has disabled himself from satisfying this appellate court that, throughout, he has been able to satisfy section 2(1). In essence, we are being invited to assume that, but without access to the relevant material. We are being asked to find that he acted reasonably when, in truth, that is something we cannot test against the material relied upon by the Secretary of State."
"I ..remain of the view that for a control order with a 16 hour curfew (a fortiori one with a 14 hours curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive on the life the controlee might otherwise have been living".
Social isolation is an important consideration. Lord Brown referred to my decision of February 2009 stating that I had upheld a 16 hour curfew in Chesterfield when the relocation there "presented no difficulty for family visits." Mr Friedman submits that that was not a wholly accurate reflection of what I had decided. While there was no bar on visits from his wife and family (and indeed visits by others), there were practical difficulties. The children were at school in Derby and his wife did not drive. Chesterfield is some 25 miles from Derby and to travel would involve expense. Thus the reality was that such visits were not practical save on some occasions.
(b) an obligation imposed by .an order has been modified without the consent of the consulted person,
The controlled person may appeal to the court against the .modification"
Mr Eicke submits that GG consented to the move to Cardiff and so has no right of appeal against it. It is clear that GG did not truly consent to anything other than a move back to Derby. Only when told that was impossible did he express a preference for Cardiff rather than Hounslow. That in my view was not a true consent to the modification. Rather, it was the lesser of two evils. Accordingly, I do not think that an appeal against it is prohibited.