ZZ v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Carnwath,Lord Justice Moses |
| Judgment Date | 19 April 2011 |
| Neutral Citation | [2011] EWCA Civ 440 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2008/1997 |
| Date | 19 April 2011 |
[2011] EWCA Civ 440
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS
COMMISSION (Mr Justice Mitting)
Ref No: SC63/2007, BAILII: [2008] UKSIAC 63/2007
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, (Vice President of the Court of Appeal, Civil Division)
Lord Justice Carnwath
and
Lord Justice Moses
Case No: T2/2008/1997
Mr Hugh Southey QC and Mr Simon Cox (instructed by Fisher Meredith LLP) for the Appellant
Mr Tim Eicke QC and Mr David Craig (instructed by Treasury Solicitor) for the Respondent
Mr Mohammed Khamisa QC and Mr Martin Goudie (instructed by the Special Advocates Support Office) appeared as Special Advocates
Hearing dates: 28 February and 1 March 2011
The appellant has dual Algerian and French nationality. He has been married to a British citizen since 1990. They have eight children. They lived as a family in this country until August 2005. He had progressed from "leave to remain" status to being granted a United Kingdom EEA residence permit which was issued to him on 25 March 2004, valid for five years, although his application for naturalisation as a British citizen had been rejected on national security grounds on 20 January 1999. However, he was granted indefinite leave to remain on 4 August 1999. On or about 19 August 2005 he travelled to Algeria. Six days later the Secretary of State decided to cancel the indefinite leave to remain and to exclude him from the United Kingdom on the ground that his presence was not conducive to the public good for reasons of national security. On 18 September 2006, he arrived at Heathrow from Algiers bearing a French passport. He was refused admission pursuant to regulation 19(1) of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) on the basis that his exclusion was justified on grounds of public security. He was immediately returned to Algeria. Thus, he has not lived in the United Kingdom for many years. We are told that he is presently in France.
The refusal of admission on 19 September 2006 gave rise to a right of appeal which the appellant duly exercised. The Secretary of State certified the refusal pursuant to regulation 28 of the 2006 Regulations, whereupon the appeal was directed to the Special Immigration Appeals Commission (SIAC). For reasons given in open and closed judgments dated 30 July 2008, SIAC dismissed the appeal. The appellant now appeals to this Court pursuant to section 7 of the Special Immigration Appeals Commission Act 1997.
The question at the heart of this appeal is whether, by reason of his French nationality, the appellant enjoys procedural rights which, if he were only an Algerian citizen, would not arise. His position falls for consideration under three legal regimes. Under domestic law, the appeal to SIAC is governed by the 1997 Act and the Special Immigration Appeals Commission (Procedure) Rules 2003. The appellant has had the benefit of all that he is entitled to under domestic law. Secondly, there is Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). However, this provides the appellant with no procedural protection because, as the Grand Chamber of the Strasbourg Court said in Maaouia v France (2001) 33 EHRR 1037 (at paragraph 40):
"… decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1)."
Article 1 of the Seventh Protocol contains procedural fairness provisions in relation to the deportation of aliens but it has not been ratified by the United Kingdom and, in any event, would probably not impact on the issue in this case.
The third legal regime is that of the European Union. The case for the appellant is that it provides for procedural protection to the extent of entitling him to disclosure of at least the gist of the closed national security case against him so that the special advocates in SIAC, when seeking to protect his interest in the closed hearing, have his instructions on the closed allegations sufficiently to be able to refute them. In this way, his French nationality would provide him with a form of protection for which his Algerian nationality would not qualify him. His case on EU law is put on two alternative bases: (1) entitlement to disclosure; and (2) protection against discrimination. As regards the latter, the discrimination is said to reside in the different protection afforded to him, a French citizen, as compared with a British citizen who is the subject of control order proceedings.
Although this invocation of EU law is the main issue arising on this appeal, there are further grounds relating to the standard of proof and the reasoning of SIAC to which I shall return later.
EU law
(1) Procedural fairness and disclosure
It is first necessary to set out the European legislative provisions upon which this issue turns. They include provisions not only on free movement but also on the distribution of legislative competence between the institutions of the EU and those of Member States.
In the Treaty on European Union (TEU), the following provisions are relevant:
"Article 3.2
The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
Article 4
1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
Article 5
1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
Article 6.1
The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000 … which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions."
In the Treaty on the Functioning of the European Union (TFEU), the following provisions are relevant:
"Article 21.1
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give effect to them.
Article 346.1
The provisions of the Treaties shall not preclude the application of the following rules:
(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security …"
The Charter of Fundamental Rights of the European Union (the Charter) includes the following provisions:
"Article 47
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.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented …
Article 51.2
This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties."
As a person with French nationality, the appellant's right of free movement is dealt with in Directive 2004/38/EC (the Citizens' Directive). By Article 27.1, Member States may restrict the freedom of movement and residence of EU citizens, irrespective of nationality
"on grounds of public policy, public security or public health."
Measures taken on grounds of public policy or public security
"shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned …
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society …"
(Article 27.2)
Article 28 makes further provision in relation to "protection against expulsion". It does so on the basis of criteria which give enhanced protection to those with long residence in the host country. At all material times, the appellant has been treated as being entitled to the highest category, being those who have resided in the host Member State for the previous 10 years, who may only be expelled
"if the...
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