Control orders and human rights to family life: not always incompatible

1 June 2011 by Isabel McArdle

CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment

As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.

The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.

In this case the person being controlled (‘CD ‘)was served with a control order in February 2011 and this was shortly after modified, requiring him to relocate from north London to a house in a city in the Midlands.  Although the control order imposed a significant range of conditions upon CD, this appeal focussed only on the residence requirement.

The right of appeal

Section 10(1)(b) of the Act allows a person subject to a control order to bring an appeal against a modification which he or she has not consented to. The court’s task on such an appeal is to determine whether the decision to impose the modification was flawed using ordinary judicial review principles (that is the usual tests applied when the courts are asked to review the lawfulness of decisions made by the government).

In a case involving human rights, a more intense standard of review applies and the test of proportionality is important. However, the court must give a degree of deference to the Secretary of State’s assessment of what is necessary, but also bear in mind the fact that it has been presented with evidence which the controlled person has not had access to and which the controlled person’s Special Advocates are not permitted to take his or her instructions on once they have seen it.

Special Advocates are legal representatives who are permitted to see material which is very sensitive and have gone through rigorous security checks. They are not permitted to speak to their clients about particular material they are shown once they have viewed it, but in the AF case, the House of Lords ruled that in order to guarantee a fair hearing the judge must insist in every case that the controlled person is given sufficient information to enable his special advocate effectively to challenge the case that is brought against him.

Devastating impact

CD made various points about the problems he faced living in the new location. His family had to spend considerable time and money visiting him. He did not have friends in the area. He described the impact on him and his family as “devastating”, that he wished to be relocated back to London and that if this request was not granted, he sought a travel subsidy for his family and friends to visit him.

CD argued that his article 8 rights to respect for private and family life were violated. He argued that the range of other measures imposed upon him were sufficient to meet the Secretary of State’s aims. He also argued that it was irrational to move him to the Midlands, when one of his close associates suspected of terrorist activity had recently moved to Rochdale and was therefore nearer to him than if he had remained in London.

Leading extremist

CD was alleged the be the leading figure in a close group of Islamic extremists based in north London who were planning terrorist attacks, probably involving firearms. He had attended terrorist training and showed a very high level of security awareness. He had spent around 3 years in Syria, returning in April 2009. After returning, he had made several attempts to acquire firearms from 7 London based criminal associates.

The decision to remove him from north London was made to prevent him meeting with his north London criminal associates and that relocation within Greater London would be insufficient to achieve this.

The move of one of CD’s associates suspected of involvement in terrorism to Rochdale was voluntary, so that person could return to London at any time.

It was accepted that the move from London interfered with CD and his family’s article 8 rights. However, the interference was argued by the secretary of state to be proportionate. The property in the Midlands was large enough to allow his wife and family to live with him if they desired, his children not yet being of school age. There had been no evidence from CD’s wife. The costs of travel were argued to be exaggerated.

Decision justified

The Honourable Mr Justice Simon heard the appeal. He considered that there was clearly a comprehensive interference with article 8 given the large number of restrictions on CD’s freedom, but the appeal only related to the relocation obligation. This in itself however amounted to a substantial infringement of article 8.

It was significant that CD’s wife had not provided evidence. There was no evidence as to why she and the children could not move to join CD. Further, she and CD had lived far from London for 3 years in Syria. The relocation decision was justified on the basis that since returning from Syria in 2009, CD had made several attempts to procure firearms, held covert meetings for the purpose of organising a terrorist attack and displayed a high level of security awareness.

The fact that his associate lived in Rochdale carried little weight: his move from north London was voluntary and he was free to return there at any time.

In the light of these matters, the relocation obligation was necessary and proportionate to protect the public. Deference should be given by the courts to the Secretary of State when the question of whether a more suitable property for relocation was available, although at a hearing to challenge the control order as a whole the matter could be raised. The interference with article 8 could and should however be abated by reimbursing at least a proportion of travel expenses incurred by friends and family visiting CD. Consequently, the appeal was dismissed.

It is likely that challenges to relocation decisions under anti-terrorism legislation will disappear shortly. Under the proposed new regime (published by Home Office as a draft bill last week), relocation to another part of the country is to be scrapped. Control orders themselves are to disappear too, to be replaced by Terrorism Prevention and Investigation Measures (TPIMs).

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Read more:

• Another control order ruled unlawful
• Another control order bites the dust
• Control orders: what are they are why do they matter?

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