ZZ (France) v Secretary of State for the Home Department (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Christopher Clarke |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] EWCA Civ 7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2008/1997 |
| Date | 24 January 2014 |
[2014] EWCA Civ 7
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Mitting
Case no. SC/63/2007
Royal Courts of Justice
Strand, London, WC2A 2LL
MASTER OF THE ROLLS
Lord Justice Richards
and
Lord Justice Christopher Clarke
Case No: T2/2008/1997
Hugh Southey QC and Nick Armstrong (instructed by The Public Law Project) for the Appellant
Tim Eicke QC and David Craig (instructed by The Treasury Solicitor) for the Respondent
Martin Goudie (instructed by the Special Advocates Support Office) as Special Advocate
On 19 September 2006 the Secretary of State refused the appellant, ZZ, admission to the United Kingdom pursuant to regulation 19(1) of the Immigration (European Economic Area) Regulations 2006 on the basis that his exclusion was justified on grounds of public security. His appeal against that decision lay to the Special Immigration Appeal Commission ("SIAC") and was dismissed by SIAC in July 2008. An appeal against SIAC's decision was heard by the Court of Appeal (Maurice Kay, Carnwath and Moses LJJ) in early 2011. The court dismissed the domestic law grounds of appeal but decided to refer a question of EU law to the Court of Justice of the European Union ("the CJEU") for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union ("the TFEU"): see [2011] EWCA Civ 440. The CJEU gave its judgment on that reference on 4 June 2013: see Case C-300/11, ZZ v Secretary of State for the Home Department [2013] 3 WLR 813. 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 relevant question of EU law
ZZ has dual Algerian and French nationality. The refusal to admit him into the United Kingdom restricts the rights of free movement and residence that he enjoys as a citizen of the European Union by virtue of his French nationality. SIAC decided that the restriction was justified on imperative grounds of public security. 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. In order to understand the rival contentions and the reasoning of the CJEU on that question, however, it is necessary to set out the background a little more fully.
By Article 27(1) of Directive 2004/38/EC ("the Directive"), Member States "may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health". Article 30(1) of the Directive makes provision for the persons concerned to be notified in writing of any decision taken under Article 27(1). Article 30(2) provides:
"The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security."
Article 31 provides:
"(1) The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.
…
(3) The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28. "
Article 47 of the Charter of Fundamental Rights of the European Union ("the Charter") is relevant to the interpretation of those provisions of the Directive. It provides:
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article …."
I should also note Article 52(1) of the Charter, to which the CJEU makes specific reference. It provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law "and respect the essence of those rights and freedoms"; and that subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
Regulation 19(1) of the Immigration (European Economic Area) Regulations 2006, pursuant to which ZZ was refused admission to the United Kingdom, reflects Article 27(1) of the Directive in providing that a person is not entitled to be admitted if his exclusion is justified on grounds of public policy, public security or public health.
The appeal against that refusal lay to SIAC by virtue of a certification by the Secretary of State under regulation 28 of the same Regulations that the decision was taken "wholly or partly in reliance on information which in his opinion should not be made public … in the interests of national security". The appeal was subject to the SIAC procedural rules provided for by the Special Immigration Appeals Commission Act 1997 and contained in the Special Immigration Appeals Commission (Procedure) Rules 2003. It involved, in addition to an open procedure, a closed procedure from which ZZ and his legal representatives were excluded but in which his interests were protected by two special advocates. In the usual way, SIAC gave both an open judgment and a closed judgment.
SIAC made clear in its open judgment that its decision was based principally on closed material which had not been disclosed to ZZ or his representatives. Thus, the section on the facts in the open judgment started with the statement that "[l]ittle of the case against ZZ is contained in the first and second open statements" (para 16) and ended with this (at para 18):
"As will be apparent from the brief analysis of the open case against ZZ and of his response to it, neither really engages with the critical issues, which we have determined principally by reference to the closed material. If MB requirements [see Secretary of State for the Home Department v MB [2008] 1 AC 440] apply to these proceedings and they require that the gist of the case against ZZ is disclosed to him, they have not been fulfilled."
SIAC's conclusion, at para 21 of the open judgment, was in the following terms:
"For reasons which are given in the open and closed Judgments, read together, we are satisfied that the imperative grounds of public security which we have identified in the closed Judgment outweigh the compelling family circumstances of ZZ's family so as to justify the Secretary of State's decision to exclude him from the United Kingdom. For those reasons, this appeal is dismissed."
The rival contentions of the parties on the relevant aspect of the appeal against SIAC's decision were conveniently summarised at para 13 of the judgment of Maurice Kay LJ when the matter was first before this court. The appellant contended that he was entitled to an "effective remedy" pursuant to Article 47 of the Charter. This extended to an entitlement to disclosure of at least the gist of the closed material which was pivotal to the case against him in SIAC because, without such disclosure, his remedy in SIAC was simply not effective. He relied on domestic, Strasbourg and Luxembourg authority to support this approach to an effective remedy. On the other hand, the case for the Secretary of State was that Article 4(2) of the Treaty on European Union ("national security remains the sole responsibility of each Member State") and Article 346(1)(a) of the TFEU ("no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security"), read in conjunction with Article 6 of the Treaty on European Union ("the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties") and the corresponding provision in Article 51(2) of the Charter, had the effect that the appellant could not draw on Article 47 of the Charter to establish a right to disclosure of information which SIAC had found to be contrary to the interests of national security: the issue was one expressly reserved to Member States and was beyond the competence of the EU.
The court decided by a majority to make a reference to the CJEU on the issue to which those submissions were addressed. The order for reference contained a somewhat fuller summary of the parties' arguments and referred the following question for a preliminary ruling:
"Does the principle of effective judicial protection set out in Article 30(2) of Directive 2004/38, as interpreted in the light of Article 346(1)(a) of the Treaty on the Functioning of the European Union, require that a judicial body considering an appeal from a decision to exclude a European Union citizen from a Member State on grounds of public policy and public security under Chapter VI of Directive 2004/38 ensure that the European Union citizen concerned is informed of the essence of the grounds against him notwithstanding the fact that the authorities of the Member State and the relevant domestic court, after consideration of the totality of the evidence against the European Union citizen relied upon by the authorities of the Member State, conclude that the disclosure of the...
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