The recent ruling of the Grand Chamber of the CJEU in ZZ v SSHD is to be welcomed for a clear steer to states as to the scope of disclosure in cases involving national security. Judgment followed a request for a preliminary ruling by the Court of Appeal (England and Wales) in an area which has vexed the domestic courts for considerable time. This is the first time that the CJEU has been asked to consider the provisions for non-disclosure to appellants facing deportation contained in the controversial procedural rules which govern the Special Immigration Appeals Commission (SIAC) in light of EU law.
The case concerned ZZ, a dual French and Algerian citizen married to a British national, and thus provided the nexus for EU law to apply. He had resided lawfully in the UK for a number of years and had been granted permanent residence. ZZ left the UK to go to Algeria and the SSHD decided to cancel his right of residence and to exclude him from the UK. He subsequently sought to return to the UK and was refused admission on grounds of public security. His appeal was dismissed by SIAC in an open and closed judgment. In its open judgment SIAC held that “little of the case against” ZZ had been disclosed to him that that which had been disclosed did not concern the “critical issues”. The Court of Appeal sought guidance on whether it was permissible for SIAC not to disclose to ZZ the essence of the grounds which constituted the basis of the decision to refuse him entry to the UK.
The CJEU considered the domestic legislative framework of the SIAC procedure on disclosure against Article 30 of Directive 2004/38 read in light in particular of Article 47 of the EU Charter (right to an effective remedy and a fair trial). Article 30(2) provides that a person must be informed precisely and in full of the public policy, security or health grounds which constitute the basis for a refusal of entry unless this is contrary to the interests of state security. As such, therefore, the directive allows for derogation from the basic principle of full disclosure.
However, the CJEU made a number of significant findings for resolution of this and future SIAC cases and cases concerning national security in general. First, that as Article 30(2) was a derogation from a general rule it had to be interpreted strictly without depriving it of its effectiveness. Secondly, that interpretation of the directive had to take into account the significance of the fundamental right guaranteed by Article 47 of the Charter. Thirdly, that according to the court’s settled case law a person must be able to ascertain the reasons upon which a decision taken in relation to him is based. Fourthly, that parties to a case must have the right to examine all the documents submitted to the court and that if in exceptional circumstances a state opposes full disclosure of evidence the court must have at its disposal mechanisms (e.g. procedural rules) which enable it to ensure that the respective interests of the state and individual. Fifthly, that there is no presumption that the reasons invoked by a state exist and are valid and as such the state must prove that state security would in fact be compromised by precise and full disclosure. As such the court must carry out an independent examination of all matters of law and fact and must determine which state security is a bar to disclosure. Sixthly, if state security is a bar the procedure must ensure to the greatest possible extent that the adversarial principle is complied with in order to enable a person to contest the grounds on which a decision is based. In particular a person must be informed in any event of the essence of the grounds on which a decision refusing entry is based. Seventhly, the court must assess the extent to which restrictions on disclosure affect the evidential value of the non-disclosed evidence.
The issue of national security is one which is frequently invoked by member states as a justification for deploying special and restrictive measures in a wide variety of forms which derogate from the basic principle of full disclosure. As such this ruling provides a clear direction as to the core minimum which must be provided by way of disclosure to an individual in order to ensure that the principles set out in Article 47 are satisfied. That said, there is a distinction drawn in the judgment between the grounds for a decision which must be disclosed and evidence which may be subject to non-disclosure. This distinction may well still pose difficulties for appellants who are contesting action taken against them on national security grounds.
However, as a minimum the judgment ensures that the safeguards on disclosure of grounds for a decision as previously established by case law on Article 5 ECHR and detention (A & Ors) and in the context of freezing of assets (Kadi) are applied to deportation proceedings. Although the context of this case was deportation, the judgment of the court is expressed in broad terms as regards the basic protection enshrined in Article 47 of the Charter and should be interpreted as having a wide application.