FMA & Ors v Secretary of State for the Home Department
[2023] EWHC 1579 (Admin)
QX v Secretary of State for the Home Department
22 November 2022
[2022] EWCA Civ 1541
Court of Appeal
A man was banned from returning to the UK. He challenged the ban and wanted more information and to question government witnesses. The court said he deserved some extra information but the government didn't have to make their witnesses testify if they didn't want to.
Key Facts
- •QX, a British citizen, appeals against a temporary exclusion order (TEO) imposed by the Secretary of State for the Home Department.
- •The TEO prevents QX from returning to the UK unless permitted.
- •QX challenges the conditions leading to the TEO and the obligations imposed upon his return.
- •The case involves closed material proceedings concerning national security.
- •QX's appeal concerns disclosure of information and the right to cross-examine witnesses.
Legal Principles
Article 6.1 ECHR right to a fair trial in the determination of civil rights and obligations.
European Convention on Human Rights
AF (No 3) principles on disclosure in closed material proceedings to ensure a fair trial.
Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28
Standard of review in judicial review of decisions involving national security, requiring deference to the Secretary of State's assessment.
R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; Secretary of State for the Home Department v Rehman [2003] 1 AC 153
Right of abode in the UK as a civil right for the purposes of Article 6.1 ECHR.
Pomiechowski v District Court of Legnica, Poland [2012] UKSC 220
Party autonomy in civil litigation; the court generally cannot compel a party to call a witness they do not wish to call.
Zuckerman on Civil Procedure, Air Canada v Secretary of State for Trade [1983] 2 AC 394, Sainsbury’s Supermarkets Ltd v Mastercard Inc [2020] UKSC 24
Outcomes
Appeal allowed in part.
The Judge erred in holding that QX was not entitled to AF (No 3) disclosure in his challenge to the conditions for the TEO. The Judge was correct in not ordering cross-examination of the Secretary of State's witness on the conditions for the TEO.
Cross-appeal allowed.
The judge lacked the power to order the Secretary of State to call a witness they did not wish to call regarding national security. The court should not have compelled the Secretary of State to produce a witness statement and allow cross-examination regarding the national security assessment.