Court of Justice of the European Union on State Security, Notification of Decisions, Disclosure and Judicial Protection

th-44Case C-300/11 ZZ v Secretary of State for the Home Department (4 June 2013)

This is such an interesting case, which also involves Islam and the West, on Directive 2004/38/EC (the Directive). Some of the details in the Special Immigration Appeals Commission’s open judgment (Mitting J, Jordan SIJ and Mr Ledlie: [2008] UKSIAC 63/2007) are quite juicy. ZZ, a dual Algerian and French national, who first arrived in the UK in 1978/1979 is Sheikh Mohammed Bin Rashid Al Makhtoum’s brother-in-law.

The Sheikh, of course, is the constitutional monarch of Dubai and the prime minister and the vice-president of the United Arab Emirates. ZZ’s sister Houria is one of the Sheikh’s wives and almost five years ago Mitting J (para 1) found that to be a good explanation for why ZZ had large sums of money in his bank accounts in the 1990s.

In a more sinister vein, unconnected to the Sheikh, ZZ was also accused of terrorist activities and links to Algeria’s feared Groupe Islamique Armée or GIA. In 1995 and 1996, ZZ’s affiliations with El-Majda (a well-known extremist) became the source of concern for the authorities. Mitting J, for example, dismissed as implausible ZZ’s contention that British number plates and a car belonging to him found in a Brussels garage rented by El-Majda was an “inexplicable and unfortunate coincidence” (para 16). Arms and ammunition were also found in the premises.

In 1990 ZZ married Theresa Anne Drew, a British citizen, and the couple have eight children. ZZ had an extremely complicated relationship with the Home Office. Several of his applications for naturalisation as a British citizen were refused. ZZ was educated in the UK and he was granted indefinite leave to remain but the caseworker who made the grant was not aware of the national security risk that he posed so in August 2005 the Home Secretary personally decided to cancel his indefinite leave to remain and to exclude him on the grounds that his presence was not conducive to the public good for reasons of state security. In September 2006, while presenting a French passport ZZ was refused admission to the UK for reason that his exclusion was justified on the basis of state security – a decision he appealed to the Special Immigration Appeals Commission (SIAC).

SIAC regarded it unreasonable for ZZ’s family to resettle in Algeria and Mitting J (para 19), who reckoned that the issue of family life weighed in very heavily in ZZ’s favour, remarked that “[o]n any view, the enforced separation is a tragedy for ZZ’s wife and his children.”

Interesting questions about ZZ rights were summarised by Mitting J – who admitted the possibility of engaging in a complex debate about the precise category of person into which ZZ fell – in para 7 of SIAC’s open judgment. On the one hand, Mr Eicke argued that by virtue of his absence from the UK between 2005 and 2006, ZZ was no longer entitled to the hierarchy of protection under articles 27 and 28 of the Directive. On the other hand, Mr Southey, sought to undermine that argument by observing that the approach would sit uneasily with recitals 23 and 24 of the Directive. Some of Mitting J’s criticisms were aimed at the Directive’s French text but ultimately he dismissed the appeal because of reasons (in the open and closed judgments) of imperative grounds (or motifs graves) of public/national security which outweighed the compelling family circumstances of ZZ’s family life: the decision to exclude ZZ from the UK was justified. As noted above, SIAC was satisfied that ZZ’s evidence (in respect of stays in Belgium and Italy, possession of large sums of money and mingling with certain persons) was credible. But, for reasons set out in the closed judgment, SIAC rejected ZZ’s denials regarding collaborating with a terrorist network.

The Question?

Upon appeal, doubt existed in the minds of Maurice Kay, Carnwath and Moses LJJ – ZZ v SSHD (Rev 1) [2011] EWCA Civ 440 – and the Court of Appeal questioned whether it was permissible for SIAC not to disclose to ZZ the gist of the grounds which constituted the basis of the decision refusing entry.

Subsequently, in making a preliminary reference to the Court of Justice of the European Union (CJEU), the Court of Appeal adopted the question posed by Mr Southey:

Does the principle of effective judicial protection require that a judicial body considering an appeal from a decision to exclude a EU citizen from a member state on grounds of public policy and public security under chapter VI of Directive 2004/38 ensure that the EU citizen concerned is informed of the essence of the grounds against him, notwithstanding the interests of state security?

The Court of Justice

The CJEU observed (para 30) that in the open case SIAC (para 18) disclosed “little of the case against” ZZ and that any disclosure made failed to address “the critical issues”: so the essence of the case against ZZ was not revealed to him.

Although Italy pressed the CJEU not to admit the question referred, the Court found (para 36) that in the instant case it was bound – under Case C-553/11 Rintisch [2012] ECR I-0000 – to give a ruling as interpreting EU law was at stake. Thus, within the meaning of Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667 (i.e. the question bears no relation to the actual facts of the main action or its purpose, the problem is hypothetical, or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it) the CJEU could not refuse to give a ruling because the question related to interpreting Article 30 (Notification of decisions) of the Directive read with Article 47 (Right to an effective remedy and to a fair trial) of the Charter of Fundamental Rights (CFR). Equally, the CJEU explained (para 38) that following Case C-387/05 Commission v Italy [2009] ECR I-11831 state security alone was incapable of making EU law inapplicable.

Noting (para 41) that it was common ground that the Home Secretary did not inform ZZ exactly and fully why he was refused entry within the meaning of Article 28 (General principles) of the Directive, the CJEU (paras 42 – 44) recalled that under the Special Immigration Appeals Commission (Procedure) Rules 2003 SIAC has a general duty to ensure that information is not divulged contrary to state (national) security. Equally, in circumstances where the Home Secretary considers that material that she relies upon is not suitable for disclosure to the appellant (or “closed material”), a special advocate must be appointed to represent the appellant but the said advocate must not disclose the material that the Home Secretary wishes to withhold unless SIAC authorises such communication. In the SIAC proceedings, ZZ was only able to consult his two special advocates on the public evidence.

The CJEU observed (para 46) that under the Directive the person in question, such as ZZ, must be notified in writing of a decision refusing entry (under Article 27) and in such a way that he is able to comprehend its content and the implications for him. Moreover, in line with Article 30(2), unless it is contrary to the interests of state security the person concerned must be informed, precisely and in full, of the public policy or public security grounds which constitute the basis of the decision. Similarly, under Article 31 of the Directive, Member States are obliged to enact measures enabling EU citizens and their family members to access judicial and administrative redress procedures – which must include scrutiny of the decision concerned – to appeal or review any decision to curb their entitlement to reside and move freely in the EU for reasons connected to public policy, public security or public health (para 47): Case C-249/11 Byankov [2012] ECR I-0000.

So that the redress mechanism is properly available, the person concerned must be comprehensively informed of the exact public security (or public policy or public health) grounds raised in making the decision unless the Member State in question derogates from following such an approach within the meaning of Article 30(2) of the Directive (paras 48 – 49). Although such a deviation from the norm should be interpreted strictly, the ability to derogate should not be stripped of its effectiveness.

Importantly, Article 52 (Scope of guaranteed rights) of the CFR permits restricting the exercise of the rights preserved by the CFR but – subject to the doctrine of proportionality – any limitation must not only respect the principle (“essence”) of the right concerned, but must also be vital and genuine in achieving the EU’s general interests and objectives (para 51). So, on proper analysis, Article 30 and 31 of the Directive read with Article 47 of the CFR must achieve the standard (“level of protection”) imposed by Article 52 of the CFR and by the principle of proportionality (para 52).

The jurisprudence on the effectiveness of Article 47 of the CFR is such that it should be possible for the person concerned to decipher the rationale behind the decision taken by simply reading the decision or by soliciting the reasons behind it (para 53): Cases C-372/09 and C-373/09 Peñarroja Fa [2011] ECR I-1785 and Case C-430/10 Gaydarov [2011] ECR I-0000. Such an approach is consonant with facilitating the concerned person’s right to defend himself and to know, with exhaustive factual knowledge, whether there is any sense in approaching the national court with jurisdiction for a review of the legality of the national decision concerned: Case 222/86 Heylens and Others [1987] ECR 4097 and Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.

Although the doctrine of necessity exacts that certain information in administrative and judicial proceedings should remain undisclosed in the overriding interests of state security, in respect of judicial proceedings the adversarial principle (expressed in Article 47 of the CFR) that is central to the rights of the defence demands that the parties in a case must be given the opportunity to scrutinise all the documentation or particulars put before the court and to make submissions upon them (paras 54 – 55): Case C-450/06 Varec [2008] ECR I-581, Case C-89/08 P Commission v Ireland and Others [2009] ECR I-11245, Case C-472/11 Banif Plus Bank [2013] ECR I-0000, Article 6(1) of the European Convention on Human Rights and Ruiz-Mateos v Spain 12952/87 [1993] ECHR 27. Therefore, where a party’s case is hampered by the absence of the full and frank ventilation of disclosure it is plain that the basic right to an effective legal remedy is “infringed” (para 56).

If, however, owing to state security concerns, the national authority (e.g. Home Secretary) does not fully ventilate disclosure and withholds the reasons for restricting freedom of movement under Article 27 of the Directive, then the national court in question must adopt a legal framework which strikes the appropriate balance between genuine state security concerns in respect of the sources of information used to make the decision to refuse entry and the need to secure satisfactory compliance with the concerned person’s “right to be heard and the adversarial principle” (para 57).

Member States, explained the Court (para 58), must provide for effective judicial review of the merits of both the Article 27 decision refusing entry and the reasons regarding state security cited in order to withhold from the person concerned the grounds on which the refusal of entry is based.

Moreover, as to the context of judicial review procedural safeguards (set out in Article 31 of the Directive) in connection to the legality of the Article 27 decision to deny entry, the CJEU clarified that Member States must lay down rules that allow the court charged with reviewing the decision’s legality to probe “all the grounds and the related evidence on the basis of which the decision was taken” (para 59). Furthermore, the reviewing court must be “entrusted with verifying whether the reasons connected with state security stand in the way of precise and full disclosure” of the grounds and the evidence in question (para 60).

The Court let it be known (para 61) that “there is no presumption that the reasons invoked by a national authority [Home Secretary] exist and are valid” and the Home Secretary must therefore prove that state security would actually be compromised by precise and full disclosure of the grounds to persons like ZZ. (Case C-284/05 Commission v Finland [2009] ECR I-11705 applied.)

In circumstances where the national court (e.g. SIAC) decides that state security does not warrant the precise and full disclosure of why entry was refused, it provides the competent national authority (i.e. Home Secretary) the chance to divulge the withheld reasons and evidence to the person refused entry (para 63).

Conversely, where disclosing the grounds does engage state security, judicial review (of the decision to refuse entry under Article 27) contemplated by Article 31 of the Directive must be conducted by way of a procedure “strikes an appropriate balance between the requirements flowing from state security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary” (para 64).

In compliance with Article 47 of the CFR, in order to permit the person concerned to make his case and argue a defence, the procedure must as much as possible make certain “that the adversarial principle is complied with” (para 65). The person in question must be provided the substance of the grounds by virtue of which entry was refused because state security is incapable of denying “the person concerned his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 … ineffective.”

For the CJEU, balancing the right to effective judicial protection against the necessity to defend state security “is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction” (para 66). In particular cases revealing that evidence is liable to directly and specifically jeopardise state security by (i) endangering the life, health or freedom of persons or (ii) unveiling the techniques of investigation employed by state security agencies and therefore impeding or preventing such authorities’ future tasks.

Ultimately, the CJEU held (para 68) that the national (UK) court is charged with (i) ensuring that the person concerned is told of the essence of the grounds which comprise the rationale behind the decision in question in a way which takes due account of the necessary confidentiality of the evidence and (ii) drawing the appropriate conclusions from any failure to comply with the obligation to inform the person concerned.

In sum, the Court (Grand Chamber) ruled that:

Articles 30(2) and 31 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in CFR, Citizens Directive, CJEU, Closed Evidence, Disclosure, European Union, Proportionality and tagged , , , . Bookmark the permalink.

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