Essence Must Always Be Disclosed

th-78ZZ (France) v Secretary of State for the Home Department (No. 2) [2014] EWCA Civ 7 (24 January 2014)

Some disputes are difficult to settle. This case involves a longstanding quarrel about the true interpretation of Directive 2004/38/EC (the directive) in respect of expulsion and disclosure. And things are all the more interesting because of the appellant’s links to terrorism.

In the past, this matter has been reported as [2008] UKSIAC 63/2007, [2011] EWCA Civ 440, and [2013] EUECJ C-300/11: see post on the answer to the question referred by the Court of Appeal (Maurice Kay, Carnwath and Moses LJJ) asking the Court of Justice of the European Union (CJEU) whether it was permissible for the Special Immigration Appeal Commission (SIAC) not to disclose to ZZ (a dual Algerian and French national) the gist of the grounds constituting the basis of the decision refusing him entry (on the basis of public security) to the UK in September 2006.

ZZ’s presence in the UK dates back to the late 1970s and his sister is married to Sheikh Mohammed Bin Rashid Al Makhtoum: the United Arab Emirates’ constitutional monarch. ZZ was also accused of associating with Algeria’s Groupe Islamique Armée (GIA) – a proscribed organistation in the UK. He denied involvement and explained his circumstances as an “inexplicable and unfortunate coincidence”. Needless to say, ZZ’s relationship with the government is pretty complicated. So when ZZ presented his French passport to enter the UK in September 2006, he was denied entry under regulation 19 (Exclusion and removal from the UK) of the Immigration European Economic Area (Regulations) 2006 and the SSHD certified under regulation 28 (Appeals to the Commission) that the decision to exclude ZZ was based on sensitive information which should not be made public because its disclosure would undermine the interests of national security.

In 1990, ZZ had married Theresa Anne Drew; a British citizen. The marriage produced eight children and some years ago Mitting J lamented at paragraph 19 that “on any view, the enforced separation is a tragedy for ZZ’s wife and his children” and his family could not be expected to resettle in Algeria. But SIAC held that, despite his French passport, by reference to the closed material the decision to exclude ZZ from the UK was justified because of imperative grounds of public security and his denials about collaborating with a terrorist network were rejected. However, the CJEU said that the essence of the grounds behind the decision always needs to be disclosed to the person concerned and national security cannot trump this minimum standard. By refusing ZZ admission, the UK had restricted his rights of residence and free movement; rights he enjoyed as a Union citizen.

For the CJEU, article 30(2) and article 31 of the directive, read with article 47 – which conferred a fundamental right to an effective remedy – of the Charter of Fundamental Rights (CFR), required the national court to ensure two things. First of all, that a failure to disclose the grounds for a decision to the individual concerned, together with the related evidence, was limited to strictly necessary information. Moreover, the individual should be informed of the essence of the grounds in a manner which takes due account of the necessary confidentiality of the evidence.

In the instant judgment, at paragraphs 1–2, the Court of Appeal explained that:

The parties are now in dispute about the meaning and effect of the CJEU’s judgment. It falls to us to resolve the dispute … The essential question is whether in the SIAC proceedings the appellant had sufficient disclosure of the case against him to comply with the procedural requirements of EU law.

Relying on Strasbourg’s landmark ruling in A v United Kingdom (2009) 49 EHRR 29 and CJEU and domestic authorities, ZZ submitted that although the interests of the State and the individual need to be balanced, there was in any event a core minimum level of disclosure which could not be less than the essence of the grounds on which the decision was based.

The SSHD argued that the confidentiality of the evidence needed to be considered when the essence of the grounds was being disclosed and where such disclosure compromised the confidentiality of the evidence EU law did not necessitate such disclosure. Moreover, the procedural guidance given by the CJEU is closely modelled on and is consistent with SIAC’s methods which have the procedural armoury to verify that someone like ZZ was provided with as much information as possible about the reasons for his exclusion. The benchmark established in A v United Kingdom has not been imported by the CJEU into this context and Article 47 CFR requires compliance with article 6 ECHR (which does not require the A standard to be applicable in all contexts).

Observing that he was invited to wander “into related fields”, Richards LJ encouraged “a straightforward reading of the CJEU’s judgment” and his Lordship held at paragraph 18 (Christopher Clarke LJ and Lord Dyson MR concurring):

In my view that judgment lays down with reasonable clarity that the essence of the grounds on which the decision was based must always be disclosed to the person concerned. That is a minimum requirement which cannot yield to the demands of national security. Nor is there anything particularly surprising about such a result in the context of restrictions on the fundamental rights of free movement and residence of Union citizens under EU law.

Richards LJ explained at paragraphs 12 and 13 that the CJEU was of the view that, in judicial proceedings, the parties were entitled to examine all the material submitted to the court for the purpose of influencing its decision and that there could be derogation from that requirement for reasons of national security provided that there was effective judicial review of the existence and validity of those reasons. Moreover, at paragraphs 11 – 15, the Court of Appeal set out the CJEU’s view that the State bears the burden of proving that disclosure would compromise national security and the domestic court had to carry out an independent examination of all the matters on which the State relied. Moreover, where the authorities opposed full disclosure of the grounds for the decision, the domestic court had to apply techniques and rules of procedural law which accommodated both legitimate national security considerations and the need to ensure sufficient compliance with the individual’s procedural rights. However, there was no suggestion that those rights should give way altogether to considerations of national security.

Richards LJ observed at paragraph 21 that in dealing with the need for effective judicial review and appropriate procedural rules, at paragraphs 21 and 22 the CJEU made a distinction between “the grounds” underlying the decision and the “related evidence”: this was “important” for a “correct understanding” of the judgment. In instances where national security inhibits disclosure of the grounds, the national court’s procedure has to strike an appropriate balance between the requirements of national security and the right to effective judicial protection.

Identifying paragraph 65 of the CJEU’s judgment as critical, at paragraph 22 the Court of Appeal noted two important points. Firstly, in compliance with article 47 of the CFR, the procedure had to ensure that the adversarial principle was upheld so the individual could advance an effective defence. And secondly, as a minimum requirement, and in any event, the individual had to be informed of the essence of the grounds on which the decision refusing entry, taken under article 27, had been made as national security could not deny someone the right to be heard because this would render the right of redress provided by article 31 of the directive ineffective.

Although the minimum requirement could not yield to the protection of national security, the position was, however, different in respect of the related evidence (which could be withheld for reasons of national security). At paragraph 24, Richard LJ clarified:

Thus, although the essence of the grounds must be disclosed, the related evidence may be withheld from disclosure for reasons of national security.

Richards LJ said at paragraph 25 that was for the national court to ensure that the individual was informed of the essence of the grounds in a manner that took account of the necessary confidentiality of the evidence and that court therefore had to protect the confidentiality of evidence which, if disclosed, would compromise national security. Although the CJEU did not expressly explain what would happen if the essence of the grounds could not be disclosed without disclosing confidential evidence, on proper analysis the essence of the grounds (nevertheless) had to be disclosed and it was clear to Richards LJ at paragraph 26:

Again, the minimum requirement is to inform him of the essence of the grounds; and whilst the manner in which that is done must take due account of the necessary confidentiality of the evidence, there is still no suggestion that the need to protect the confidentiality of the evidence is capable of justifying non-disclosure of the essence of the grounds.

The CJEU’s language – “in any event” – pointed strongly to the essence behind the decision being disclosed and had it wanted the CJEU would have used “very different language” if it had decided that the essence of the decision should not be disclosed because of concerns over national security.

Richards LJ observed at paragraph 31 that in SSHD v AF (No. 3) [2009] UKHL 28 Lord Phillips found that in A the Grand Chamber made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him. Because the applicant had not been given the minimum level of disclosure in the SIAC proceedings, the essence of the case against him had not been disclosed to him.

Richards LJ explained at paragraph 33 that ZZ and A were contextually different and the CJEU’s judgment; Kennedy v United Kingdom (2010) 52 EHRR 207 and Tariq v Home Office [2011] UKSC 35 were of no real assistance in the matter.

Whilst his Lordship accepted that A was consistent with his reading of the CJEU’s judgment, it could not be relied on as providing positive support for that reading. The CJEU did not mention A in its judgment and its decsion should be interpreted independently of A.

The Court of Appeal held at paragraph 35 that in terms the CJEU’s judgment meant that in the SIAC proceedings, ZZ had not been given the minimum level of disclosure required by EU law. Moreover, at paragraph 37, Richards LJ said that the essence of the grounds for the decision could not have been disclosed if, as was accepted, the gist of the case against ZZ had not been disclosed. The Court of Appeal took the view, at paragraph 39, that it did not find it necessary to elaborate on what was required by way of disclosure of “the essence” of the grounds because the concept was one with which SIAC was familiar and its application was highly fact-specific. The case was therefore remitted to SIAC for a fresh determination.

It has taken ZZ a long time to get this far. He must be pretty excited about his case because at first instance SIAC’s judgment was clear that if the requirements of SSHD v MB [2008] 1 AC 440 apply to ZZ’s case and they require that the gist of the case against ZZ is disclosed to him, they have not been fulfilled.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Cases, CFR, Citizens Directive, CJEU, Terrorism and tagged , , . Bookmark the permalink.

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