ZZ v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Simon,Lord Justice Flaux |
| Judgment Date | 09 March 2017 |
| Neutral Citation | [2017] EWCA Civ 133 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2015/1323 and T2/2015/1323(C) |
| Date | 09 March 2017 |
[2017] EWCA Civ 133
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
SC/63/2007
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Lord Justice Simon
and
Lord Justice Flaux
Case No: T2/2015/1323 and T2/2015/1323(C)
Steven Kovats QC (instructed by the Government Legal Department) for the Appellant
Hugh Southey QC and Nick Armstrong (instructed by the Public Law Project) for the Respondent
Ashley Underwood QC and Martin GoudieQC (instructed by the Special Advocate's SupportOffice) for the Special Advocate
Hearing dates : 08 February, 2017
Approved Judgment
INTRODUCTION
This case has a long history of which a short summary will suffice.
The matter comes before this Court by way of an appeal from a judgment of SIAC dated 1 st April, 2015 ("the 2015 SIAC judgment"). The Appellant ("the Secretary of State") raises a single point as to the true construction of s.85(4) of the Nationality, Immigration and Asylum Act 2002 ("the NIAA"), submitting that SIAC erred in taking into account up to date information post-dating the decision under appeal. The Respondent ("ZZ") cross-appeals, contending ( inter alia) that the essence of the case against ZZ had not been disclosed to him. For our own part, the Court raised with the parties its strong and, ultimately, decisive concern that the appeal was academic, given that ZZ was re-admitted to the United Kingdom on the 18 th August, 2015.
To explain the background, the starting point must be the regulations and statute in issue. These are the Immigration (European Economic Area) Regulations 2006/1003 ("the 2006 Regulations") and the NIAA.
The version of the 2006 Regulations, in force at the material times, provided by regulation 11(1) that a European Economic Area ("EEA") national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State. However, by regulation 19(1):
" A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21."
Regulation 21 was in these terms:
" (1) In this regulation a ' relevant decision' means an EEA decision taken on the grounds of public policy, public security or public health.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall ….be taken in accordance with the following principles –
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;"
At the material times, the NIAA provided in s.85(4) that, on an appeal from various immigration decisions, SIAC "…may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."
ZZ had dual Algerian and French nationality; he had also acquired indefinite leave to remain in the United Kingdom. As Richards LJ observed, when giving the lead judgment of this Court dated 29 th July, 2015, [2015] EWCA Civ 987, granting the Secretary of State permission to appeal to this Court, at [2]:
" …ZZ previously had leave to remain in the United Kingdom and had the benefit of an EU residence card. In August 2005, when he was out of the country, the Secretary of State cancelled his leave to remain and made an order excluding him from the United Kingdom. That decision was not appealable. But in September 2006, when ZZ arrived in the United Kingdom from Algeria, he was refused admission and was removed to Algeria. The refusal of admission was appealable and ZZ did indeed appeal to SIAC against it. In 2008 SIAC dismissed the appeal."
The Open judgment of SIAC on that occasion, dated 30 th July, 2008 ("the 2008 SIAC judgment") was given by Mitting J. At [20] – [21] of the 2008 SIAC judgment, Mitting J expressed SIAC's central conclusions as follows:
" 20. ….for reasons which are explained only in the closed Judgment, we are satisfied that the personal conduct of ZZ represents a genuine present and sufficiently serious threat which affects a fundamental interest of society namely its public security and that it outweighs his and their [i.e., ZZ's wife and family's] right to enjoy family life in the UK…..
21. 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… "
Subsequently, on the 19 th April, 2011, a different constitution of this Court ( [2011] EWCA Civ 440) referred a question concerning procedural fairness and disclosure to the Court of Justice of the European Union ("the CJEU").
By its judgment dated 4 th June, 2013, ZZ (France) v Secretary of State for the Home Department (Case C-300/11); [2013] QB 1136, the CJEU (Grand Chamber), at [70], departing substantially from the Conclusion of the Advocate General (at [115] of his Opinion), answered the question referred to it as follows:
" Articles 30(2) and 31 of Parliament and Council Directive 2004/38/EC, read in the light of article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under article 27 of that Directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence."
Thereafter, the matter returned to this Court ( [2014] EWCA Civ 7; [2014] QB 820), which considered the CJEU judgment and summarised its meaning in the head note:
" …in accordance with a straightforward reading of the judgment of …[the CJEU]…as a whole, the essence of the grounds on which a decision to exclude a person from a member state had always to be disclosed to that person, and such a course was a minimum requirement which could not yield to the demands of national security; that a distinction was drawn between the grounds and the related evidence on the basis of which a decision to exclude was taken, so that, where national security stood in the way of full disclosure, in order to strike an appropriate balance between the requirements flowing from national security and the requirements of the right to effective judicial protection, the manner in which the essence of the grounds was disclosed had to take due account of the necessary confidentiality of the evidence, and the evidence itself might be withheld from disclosure for reasons of national security; that the procedure had to ensure to the greatest possible extent that the adversarial principle was complied with so as to enable the person to put forward an effective defence; that the applicant had not therefore been given the minimum level of disclosure required under European Union law in the commission proceedings; and that, accordingly, the case would be remitted for a fresh determination by the commission applying the principles set out in the judgment of the Court of Justice…. "
On that occasion, in observations which, with respect, strike me as having great force, Christopher Clarke LJ said (at [41]):
" … As Richards LJ observes the Court of Justice does not say in terms what is to happen if the essence of the grounds cannot be disclosed without also disclosing the confidential evidence. Moreover, whilst it contemplates….that in certain cases disclosure of the evidence is liable to compromise state security in a specific manner, it does not ….consider the position if disclosure of the essence might have that effect, which appears to me a possible circumstance."
Doubtless, these unresolved difficulties, arising from the CJEU judgment, will need to be addressed but they are for another day and not for this case.
The matter was thus remitted to SIAC. By the 2015 SIAC judgment, given by Irwin J (as he then was), SIAC allowed ZZ's appeal. As made clear in its judgment, SIAC considered the up to date evidence, both as to the risk ZZ posed to national security and as to his Art. 8 rights:
" 31. Our approach has been as follows. Both the level of risk to national security represented by the Appellant and the degree or extent of incursion on his Article 8 rights evidently lie at the heart of this decision, and after-coming evidence on these issues affect the 'substance' of that decision. Moreover, in assessing whether exclusion is proportionate, we must balance the risk to national security against the impact on the Article 8 rights. It is hard to see how that could be done rationally by looking at the historic evidence as to national security and the up-to-date...
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