Case Facts
The applicant, Ronald James Everett, was a British citizen residing in Spain whose passport was nearing expiry. In 1986, he applied to the British Embassy in Madrid for a new passport. The Embassy refused to issue one on 12 May 1986. The Secretary of State for Foreign and Commonwealth Affairs confirmed the refusal by letter dated 24 July 1986, stating that the reason was the existence of an outstanding warrant for the applicant's arrest issued in the United Kingdom, and that it was the Secretary of State's established policy not to issue a passport in such circumstances. At the time of refusal, the Foreign and Commonwealth Office stated that it was unable to provide details of the warrant.
Leave to move for judicial review was granted by Russell J on 13 November 1986. Before the application was heard, the applicant received full details of the warrant — including the date and place of issue and the offence in respect of which it had been issued — both from the police and through an affidavit sworn by a senior Foreign and Commonwealth Office officer.
At first instance, Mann J held that the Secretary of State should have inquired whether there was any reason why the policy ought not to be applied in the applicant's particular case. On 2 December 1987, Mann J made an order of certiorari to quash the refusal. The Secretary of State appealed to the Court of Appeal. The case was heard on 19 and 20 October 1988.
The Secretary of State's counsel argued that passport decisions carry direct foreign policy implications, on the basis that a passport constitutes a request by the sovereign to foreign powers to afford the holder free passage and protection. The applicant, for his part, contended that a refusal to issue a passport was an administrative decision directly affecting his individual rights and freedom of travel, and was therefore amenable to judicial review.
Held
The Court of Appeal allowed the Secretary of State's appeal and reversed Mann J's order of certiorari.
On jurisdiction, the court held that whether a decision taken under the royal prerogative was susceptible to judicial review depended upon the subject matter of the decision, not merely upon its source. A decision whether or not to issue a passport to a citizen — being an administrative decision which affected the rights of the individual and his freedom to travel, and which was unlikely to have foreign policy implications — was susceptible to judicial review. The court accordingly had jurisdiction to entertain the application. In reaching this conclusion, the court applied CCSU v Minister for Civil Service [1984], in which the House of Lords had established that certain exercises of prerogative power are amenable to judicial review depending on their subject matter. The court rejected the Secretary of State's argument that passport decisions were necessarily matters of high foreign policy immune from review.
On the merits, the court held that the Secretary of State was entitled to operate a policy of refusing a passport to a person against whom an arrest warrant was extant in the United Kingdom, subject to three conditions: first, that he communicated the reasons for the refusal to the applicant; secondly, that he provided particulars of the date and place of issue of the warrant and the offence charged; and thirdly, that he informed the applicant that he would consider representations as to any circumstances which might justify making an exception to that policy.
Critically, the court held that the Secretary of State was not under any duty to proactively inquire whether exceptional circumstances existed which might justify issuing a passport notwithstanding the policy. Mann J had erred in holding that such a duty of inquiry arose.
The Secretary of State's failure to communicate the relevant warrant particulars to the applicant at the time of refusal had rendered the original decision liable to be quashed. However, since by the date of the hearing the applicant had received all the information he should have been given at the outset, and since no exceptional circumstances were suggested which would justify issuing a passport to him, the applicant had suffered no injustice or prejudice. It would therefore have served no useful purpose to quash the decision, and Mann J ought to have exercised his discretion against granting relief. It was also noted that, under the Secretary of State's policy, the applicant could have been offered a travel document to return to England, though not a full passport.
Ratio Decidendi
The ratio of this case is that the exercise of royal prerogative power — including the power to refuse to issue a passport — is susceptible to judicial review where the subject matter of the decision is one affecting the rights of the individual, such as freedom of travel, rather than a matter of high policy in the field of foreign affairs. The source of the power in the prerogative does not of itself remove a decision from the supervisory jurisdiction of the courts; it is the nature and subject matter of the decision that is determinative.
Further, whilst a Secretary of State operating a passport refusal policy is under a duty to communicate the reasons for refusal, the particulars of any outstanding warrant, and the availability of a representations procedure, he is not under any duty to make proactive inquiry as to whether exceptional circumstances justify a departure from that policy.
Obiter Dicta
The court's discussion of the nature of passport decisions — characterising them as requests by the sovereign to foreign powers to allow the holder safe passage — acknowledged that there is a theoretical link between passport issuance and foreign policy. However, the court treated this as insufficient to bring passport refusals within the category of non-justiciable high-policy decisions. This distinction, whilst forming part of the court's reasoning in reaching its decision on justiciability, provides useful guidance as to where the boundary between reviewable and non-reviewable prerogative decisions may lie, particularly in cases involving the exercise of prerogative powers with an incidental foreign dimension.