Introduction

A passport order can be made at certain points in civil litigation. A litigant may be forced to surrender their passport, so as to prevent them from leaving the UK. But what happens if they then overstay any immigration permission to remain in the UK as they are unable to travel? Might they be prosecuted for an immigration-related criminal offence? And what about the impact of such a restriction on their liberty and movement? Is there a violation of their fundamental rights?

Passport Orders

The High Court may make a passport order requiring a party to surrender passports and travel documents that would enable them to leave the jurisdiction. Such orders are made under section 37(1) of the Senior Courts Act 1981:

37 Powers of High Court with respect to injunctions and receivers.

• The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.

A passport order will only be made in certain circumstances arising out the need to render effective the Court’s own procedures. For example, in Bayer A.G. v Winter [1986] 1 WLR 497 the Defendant had to surrender his passport in order to ensure disclose of particular information.  

The draconian nature of the restriction on movement is such that the Courts anticipate issuing them only for such time as is necessary and justified. That said, the question of what is necessary will be fact sensitive, taking account not least the conduct of the person concerned. Before making a passport order, a Court will need to consider the impact on a litigant resident outside the UK.  The conditions attached to the order, primarily its duration, will need to be proportionate.

Orders will not be made in all circumstances where one party is sceptical about the behaviour of the other. In B v B (Injunction: Jurisdiction) [1998] 1 WLR 329 the Court declined to make a passport order restraining a party from leaving the jurisdiction until a costs order against him had been satisfied. Such an order would not have been the servant of the court’s own procedure but a discrete method of enforcement. The circumstances in which the Court would be prepared to expand the use of passport orders remain to be explored. But inevitably, any such extension, were it to occur, would be incremental in nature.  

Passport Orders and UK Immigration Control

In Lakatamia Shipping Company Ltd & Others v Su & Others [2021] EWCA Civ 1187 the Court of Appeal considered a case where, in an application to discharge a passport order, one ground for discharge was that the litigant’s visa had expired so that he had become an overstayer and was therefore committing a criminal offence under section 24 of the Immigration Act 1971. The litigant had been made subject to a passport order so as to secure his attendance at Court to give information about his means at a hearing.

It was submitted that the jurisdiction under section 37 of the Supreme Court Act 1981 could  not be used in a way that leads inevitably to the commission of a criminal offence and that it was not lawful to continue the passport order once the litigant’s visa had expired. The Court of Appeal did not capture the situation in such terms when it examined the facts of the case. It considered that at one level of generality it was correct that the consequences of being restrained from leaving the jurisdiction, including the possibility of committing an immigration offence, are highly material for a judge to consider when deciding whether to make a passport order. However, here the litigant had been confined to the jurisdiction for significant periods of time having been imprisoned for contempt. And he remained in prison.

The Court considered it was far from clear that he would face any further penalties by reason of his visa’s expiry. It noted that the Home Secretary has a residual discretion to grant leave to remain outside the Immigration Rules under the Immigration Act 1971 and that she has a guidance note on when to grant Discretionary Leave.  Until such leave had been sought and refused, it was open to the judge who heard the case to take the view that there were unlikely to be any criminal consequences resulting from the continuation of the passport order. For litigants subject to a passport order and not imprisoned or otherwise detained, the question of the materiality of a possible immigration-related criminal charge for overstaying on an application to make or to discharge a passport order, remains to be explored.

Human Rights Implications of a Passport Order

In Lakatamia Shipping Company the Court of Appeal also considered the impact of a passport order on the litigant’s right to respect for family life and private life, as protected by Article 8 of the European Convention on Human Rights (ECHR), as protected domestically in UK law by the Human Rights Act 1998. The Court noted that Article 8 ECHR will often be engaged by a passport order: for a foreign national resident abroad, there is an immediate and obvious impact on their ability to continue a normal family and private life that requires justification. Such justification was found by reason of the need to ensure an effective hearing. Further, to the extent that the passport order was made on a time-limited basis, to ensure attendance at a planned means hearing, it was proportionate. It is noteworthy that the evidence advanced as to the impact of the passport order on family life was not considered sufficient. In other cases, human rights arguments may prosper where they did not do so here.

Other matters of potential relevance to an assessment of whether there has been a violation of Article 8 ECHR rights occasioned by the passport order and consequential overstaying of immigration leave, such as restrictions on access to NHS healthcare and authorisation to work where immigration leave has expired, did not arise on the facts of the case.

Conclusion

Presently, passport orders are made in the service of ensuring compliance with the Court’s procedures. Where it is judged necessary and justified to make or to maintain a passport order, the question of the materiality of consequential immigration overstaying and thus the commission of a criminal offence, and the question of whether there is a violation of human rights, will require careful consideration.