R v Secretary of State for the Home Department, ex parte McQuillan Queen's Bench Division [1995] 4 All ER 400

HEARING-DATES: 25, 26, 30 August, 9 September 1994

The Case deals with the following:

Judicial review - Availability of remedy - National security - Exercise of prerogative on grounds of national security - Whether national security preventing judicial review of exercise of prerogative - Applicant and family in danger of attack by members of terrorist organizations while living in Northern Ireland - Secretary of State suspecting applicant of involvement in terrorist activities - Secretary of State making exclusion order preventing applicant from entering Great Britain - Applicant seeking judicial review - Whether court entitled to consider Secretary of State's reasons for making order - Prevention of Terrorism (Temporary Provisions) Act 1989, s 5.

European Economic Community - Freedom of movement - Persons - Restriction on freedom - Restrictions justified on grounds of public policy, public security or public health - Secretary of State making exclusion order preventing EEC national from entering Great Britain on grounds of national security - Whether permissible limitation of right of freedom of movement - Prevention of Terrorism (Temporary Provisions) Act 1989, s 5 - Council Directive (EEC) 64/221, art 9 - EC Treaty, art 8a(1).

FACTS:

The applicant was a member of Irish Republican Socialist Party (the IRSP) until his resignation from the party in 1992. He was also a national of both Ireland and Great Britain. From 1987 the Secretary of State had issued a series of exclusion orders against the applicant that prevented him from traveling into the country. Although the applicant sought several reviews of the order and provided several reasons including the safety of his family, the order was not removed by the home secretary. In addition the secretary refused to give reasons for their decisions because they believed that would endanger the national security as well as several police officers.

The Court outlined several issues:

  1. whether the Secretary of State's decisions contravened arts 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which recognised the right to life and the right not to be subjected to inhuman treatment,
  2. whether the interests of national security rendered the matter non-justiciable under domestic law; and
  3. whether the EC Treaty precluded the applicant from being denied an unfettered right of free movement within the United Kingdom and, in particular, whether the 1989 Act was incompatible with (a) art 9 (Article 9, so far as material, provides: '(1) Where there is no right of appeal to a court of law . . . a decision . . . ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country . . . This authority shall not be the same as that empowered to take the decision . . . ordering expulsion . . .') of Council Directive (EEC) 64/221, which, in cases where an individual's right of free movement within the Community was limited on the ground of public security, required the decision-making authority to consider the opinion of an independent competent authority before deciding on expulsion, and (b) art 8a(1) of the EC Treaty, which created or confirmed an affirmative right in every citizen of a member state to move freely within the territory of all the member states, and whether the Secretary of State's decisions could be challenged on the proportionality principle.

The court asserted that it was the duty of the court to scrutinize regulatory agencies whose rulings infringed on fundamental values such as: the right to life, to freedom of movement, and the right not to be subjected to inhuman treatment. However, national security concerns raised special questions that were particularly intractable in the context of a right such as the right to life. If an executive decision restricting fundamental freedoms and rights was made in the interests of national security, that was sufficient to preclude any inquiry by the court into the rational behind that decision. Great discretion is given to the Secretary of State. Thus even if the Court believes, as in this instance, that reason behind the agencies refusal is more akin to public interest, the Court must accept the agencies explanation at face value.

In this case, however, the applicant also had rights as a citizen of the European Union, and those rights and the powers of derogation from them were matters primarily of European law. Questions as to the rights conferred by art 8a(1) of the EC Treaty, the compatibility of art 9 of Directive 64/221 with the 1989 Act. The court then suspended judgment awaiting a decision by the Court of Justice of the European Communities.

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