The access to secret evidence in expulsion proceedings under the European Convention on Human Rights 1
| Author | Julia Wojnowska-Radzińska |
| DOI | 10.1177/0924051917737913 |
| Date | 01 December 2017 |
| Published date | 01 December 2017 |
| Subject Matter | Articles |
Article
The access to secret evidence
in expulsion proceedings under
the European Convention
on Human Rights
1
Julia Wojnowska-Radzin
´ska
Faculty of Law and Administration Adam Mickiewicz University, Poznan
´, Poland
Abstract
The key question tackled in this paper is how States as Parties to the ECHR can use and protect
security-sensitive information (secret evidence) in expulsion proceedings. The purpose of this
paper is to explore to what extent States may be justified to refuse to disclose to a non-citizen
evidence related to State security which constitutes grounds for an expulsion decision, and not
violate aliens’ procedural rights. Apart from the procedural mechanisms analysed in the paper, the
major problems regarding the use of secret evidence in immigration cases are addressed. The
views expressed in this article are solely those of the author.
Keywords
non-citizen, expulsion, secret evidence, European Convention on Human Rights, access to the file,
national security, principle of proportionality
‘The heart of the matter is that democracy implies respect for the elementary rights of men, however
suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely
be obtained by secret, one-sided determination of facts decisive of rights’.
2
1. The author would like to thank anonymous reviewers for valuable comments. This article is based on the research project
entitled ‘‘TheAlien’s Access to the File in Expulsion Proceedings in the light of Polish and European law’’ (No 2015/17/
D/HS5/00406) financed by the National Science Centre in Poland.
2. Joint Anti-Fascist Refugee Committee v McGrath (Justice Frankfurter’s concurring opinion) (1951) 341 US 123, para
170.
Corresponding author:
Julia Wojnowska-Radzin
´ska, Assistant Professor, Constitutional Law and Human Rights, Adam Mickiewicz University,
Poznan
´61-890, Poland.
E-mail: juliaw@amu.edu.pl
Netherlands Quarterly of Human Rights
2017, Vol. 35(4) 230–245
ªThe Author(s) 2017
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DOI: 10.1177/0924051917737913
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1. Introduction
Though in principle a domestic issue, the expulsion of non-citizens h as been influenced
significantly by international human rights law. As a result, States Parti es to the European
Convention on Human Rights (ECHR, Convention) no longer enjoy absolute and uncontrolled
discretion in immigration policy and have to exercise it consistently with the obligations
expressed in the Convention. The ECHR requires that State Parties tailor their immigration
laws to respect human rights.
However, it should be emphasised that the European Convention on Human Rights does not
provide non-citizens with the right to enter, remain and reside. In principle, these issues are within
the competence of States Parties of the Council of Europe. It is the sovereign prerogative of States
to regulate the presence of non-citizens in their territory, including their expulsion.
3
The European
Commission of Human Rights has observed that ‘a state which signs and ratifies the ECHR must
be understood as agreeing to restrict the free exercise of its right under general international law,
including the right to control the entry and expulsion of foreigners to the extent and within the
limits of the obligations which it has accepted under that Convention’.
4
The use of secret evidence that cannot be disclosed in expulsion proceedings is one of the most
difficult issues that arises in migration law. As J. Ramji-Nogales stresses, the tension between
national security interests and the due process rights of non-citizens has become one of the most
pressing problems facing Western governments.
5
Since the September 11
th
terrorist attacks, var-
ious States have refused to disclose the full extent of the evidence submitted in support of expul-
sion decisions against non-citizens made on the grounds of national security. The European Court
of Human Rights (ECtHR, Court) recognised that ‘the use of confidential material may be una-
voidable where national security is at stake’.
6
Nevertheless, ‘security considerations are not a
magic spell that let all legal restrictions disappear’.
7
Without a doubt, in such circumstances a
non-citizen should be given due notice of the hearing as well as adequate notice of the evidence
against him or her, as otherwise he or she will not have a chance to exercise his or her right to a
defence in expulsion proceedings. The exercise of the right to a defence is possible when a non-
citizen receives sufficient evid ence and information to know the substance of the allegati ons
against him or her and to be able to respond. Therefore, the key question is how States Parties
to the ECHR can use and protect security-sensitive information (that is secret evidence) in expul-
sion proceedings in a manner that would still assure procedural fairness to non-citizens.
This article aims to identify whether the ECHR includes procedural mechanisms which on the
one hand accommodate legitimate State security considerations regarding the nature and sources of
the information taken into account in the adoption of expulsion decision, and on the other hand
accommodate the need to ensure sufficient compliance with the non-citizen’s procedural rights,
3. Abdulaziz, Cabales and Balkandali v The United Kingdom App no 9214/80, 9473/81 and 9474/81 (ECHR, 28 May 1985)
para 67.
4. X v Sweden App no 434/58 (ECHR, 30 June 1959).
5. Jaya Ramji-Nogales, ‘A Global Approach to Secret Evidence: How Human Rights Law Can Reform Our Immigration
System’ (2008) 39 Columbia Human Rights Law Review 288. See also J Waldron, ‘Security and Liberty: The Image of
Balance’ (2003) 11 The Journal of Political Philosophy 191; A Tomkins, ‘National Security and the Due Process of Law’
(2011) 64 Current Legal Problems 215.
6. Chahal v The United Kingdom App no 22414/93 (ECHR, 15 November 1996) para 133.
7. Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford
University Press 2009) 185.
Wojnowska-Radzin
´ska 231
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