ZZ (France) v Secretary of State for the
Home Department
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Positive/Neutral
Judicial Consideration |
Court
Court of Appeal (Civil Division)
Judgment Date
24 January 2014
Where Reported
[2014] EWCA Civ 7
[2014] 3 All E.R. 587
[2014] 1 WLUK 567
[2014] I.N.L.R. 858
[2014] C.L.Y. 1708
Judgment
Subject
Immigration
Other related subjects
Civil evidence; European Union
Keywords
Closed material; Disclosure; EU law; Free movement of persons; Leave to
enter; National security; Prevention of terrorism; Refusal; Special Immigration
Appeals Commission
Judge
Lord Dyson MR;
Richards LJ;
Christopher Clarke LJ
Counsel
For the appellant: Hugh Southey QC, Nick Armstrong.
For the respondent: Tim Eicke QC, David Craig.
For the special adovcate: Martin Goudie.
Solicitor
For the appellant: Public Law Project.
For the respondent: Treasury Solicitor.
For the special adovcate: Special Advocates Support Office.
Case Digest
Summary
In ZZ (France) v Secretary of State for the Home Department (C-300/11)
EU:C:2013:363, [2013] Q.B. 1136, [2013] 6 WLUK 33, the Court of Justice of
the European Union held that in the context of a decision taken under Directive
2004/38 art.27, the essence of the grounds on which the decision was based had
always to be disclosed to the individual concerned. That was a minimum
requirement which could not yield to the demands of national security.
Abstract
The appellant (Z) appealed against a decision of the Special Immigration
Appeal Commission (SIAC) upholding the respondent secretary of state’s refusal
to admit him to the United Kingdom.
Z, an EU citizen, had been refused admission to the UK pursuant to the Immigration
(European Economic Area) Regulations 2006 reg.19. Although his exclusion
restricted his rights of free movement and residence, the SIAC held that it was
justified on imperative grounds of public security. Its decision was based
principally on closed material which had not been disclosed to Z or his representatives.
Not even the gist of the case against Z had been disclosed. The Court of Appeal
dismissed Z’s domestic law grounds of appeal. However, there remained the
question of whether he had been given sufficient disclosure of the case against
him to comply with the requirements of EU law. Directive
2004/38 art.30(2) required that an individual in Z’s position should
be informed “precisely and in full” of the grounds on which a decision taken
under art.27 had been based, unless that was contrary to the interests of
national security. The Court of Appeal referred to the Court of Justice of the
European Union the question of whether art.30(2) meant that an individual in
Z’s position had to be informed of the essence of the grounds for the exclusion
decision, even if the domestic court considered that such disclosure would be
contrary to the interests of national security (ZZ v Secretary of State for
the Home Department [2011] EWCA Civ 440, [2011] 4 WLUK 558). The CJEU
indicated that art.30(2) and art.31 of the Directive, read in the light of the
Charter of Fundamental Rights of the European Union art.47, required the national
court to ensure two things. First, that a failure to disclose to the individual
the grounds for a decision, together with the related evidence, was limited to
that which was strictly necessary. Second, that the individual was informed of
the essence of the grounds in a manner which took due account of the necessary
confidentiality of the evidence (ZZ (France) v Secretary of State for the
Home Department (C-300/11) EU:C:2013:363, [2013] Q.B. 1136, [2013] 6 WLUK 33).
The instant court was required to resolve a dispute between the parties as to
the meaning and effect of that judgment.
Held
Appeal allowed.
The CJEU held that, in judicial proceedings, the parties were entitled to
examine all the material submitted to the court for the purpose of influencing
its decision; 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; the state bore the burden of proving
that national security would be compromised by disclosure; and the domestic court
had to carry out an independent examination of all the matters on which the
state relied (see paras 11-15 of judgment). It held that the essence of the
grounds on which the decision was based had always to be disclosed to the
individual concerned. That was a minimum requirement which could not yield to
the demands of national security. It indicated that 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. There was no suggestion
that those rights should give way altogether to considerations of national security.
In dealing with the need for effective judicial review and appropriate
procedural rules, the court introduced a distinction between the grounds for
the decision and the “related evidence”. Where national security stood in the
way of disclosure of the grounds, the court’s procedure had to strike an
appropriate balance between the requirements of national security and the right
to effective judicial protection. The procedure had to ensure that the
adversarial principle was complied with so the individual could put forward an
effective defence. As a minimum requirement, and in any event, the individual
had to be informed of the essence of the grounds on which the decision had been
made. That 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. The
domestic court had 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. It had to protect the confidentiality of evidence which, if
disclosed, would be contrary to national security. Although the CJEU did not
say, in terms, what was to happen if the essence of the grounds could not be
disclosed without disclosing confidential evidence, the clear implication was
that the essence of the grounds still had to be disclosed (paras 18-27). The
CJEU’s judgment meant that in the SIAC proceedings, Z had not been given the minimum
level of disclosure required by EU law. The essence of the grounds for the
decision could not have been disclosed if, as was accepted, the gist of the
case against Z had not been disclosed. It was not necessary to elaborate on
what was required by way of disclosure of “the essence” of the grounds. The
concept was one with which the SIAC was familiar, and its application was
highly fact-specific. The case would be remitted to the SIAC for a fresh
determination (paras 35-39).