Challenge to Use of Royal Prerogative to Cancel Passport on Grounds of Suspected Involvement in Terrorism

R (XH & Another) v Secretary of State for the Home Department [2016] EWHC 1898 (Admin) (Hamblen LJ, Cranston J) 28 July 2016

XH and AI had had their passports cancelled on the basis that they were likely to travel abroad and engage in terrorism related activities. The Court found that the use of the Royal Prerogative to cancel the passports was lawful and rejected the argument that the Terrorism Prevention and Investigation Measures Act 2011 had displaced the prerogative: there were major differences between the two powers and it was not to be implied that Parliament had intended to abrogate the prerogative power by enacting the statute.

The Court also held that the prerogative powers were sufficiently precise to be lawful.

The Court further accepted that the cancellations engaged EU law but held that the restriction on free movement was justified and in the interests of national security and that Judicial Review of the Home Secretary's decision was an adequate remedy and there was also no violation of the right to good administration. It reached similar conclusions on the ECHR arguments.

Finally, it was held that there was a theoretical risk only that information protected by legal professional privilege had been obtained and there was no violation of the right to a fair hearing.

However, the Court granted permission to appeal to the Court of Appeal in relation to whether the Royal Prerogative had been displaced and whether there had been a breach of EU law.

Barnabas Lams represented XH.

The full judgment is here.