Applications nos. 14876/12 and 63339/12
I.R. and G.T. against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 28 January 2014 as a Chamber composed of:
Vincent A. De Gaetano,
Robert Spano, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above applications lodged on 5 March 2012 and 24 September 2012 respectively,
Having deliberated, decides as follows:
A. The circumstances of the case
1. This case concerns two foreign nationals whom the Secretary of State for the Home Department decided to exclude from the United Kingdom on grounds that their presence in the country was not conducive to the public good. In the first applicant’s case, the Secretary of State also cancelled his existing leave to remain in the United Kingdom; in the second applicant’s case, the Secretary of State refused to allow him entry clearance to re-enter the United Kingdom. As the Secretary of State’s decisions were taken on grounds of national security, the applicants’ appeals against these decisions were heard not by the then Asylum and Immigration Tribunal but by the Special Immigration Appeals Commission (SIAC). Part of the proceedings before SIAC took place in the absence of the applicants and their legal representatives, but in the presence of special advocates who had been appointed to represent their interests (in so-called “closed procedure”). The applicants complain that their exclusion from the United Kingdom and the proceedings before SIAC violated their rights under Articles 8 and/or Article 13 of the Convention. The facts of the case, as submitted by the applicants, may be summarised as follows.
2. I.R.’s case
2. I.R. (“the first applicant”) is a Sri Lankan national who was born in 1981. He is represented before the Court by Ms R. Despicht, a lawyer practising in London with Birnberg Peirce & Partners.
3. The first applicant resided in the United Kingdom from 24 February 2001 when he was granted leave to enter. Further grants of leave to remain followed, the latest on 14 July 2008 when he was given leave to remain until 8 July 2009. In the course of his time in the United Kingdom the first applicant followed an English language and webmaster technology course and later obtained a bachelor’s degree in technology and e-commerce. While a student, he undertook permitted part-time work for a supermarket chain. After graduation he worked as a manager on the chain’s graduate programme and then obtained permanent employment as a graduate network support analyst with an international marketing agency.
4. On 8 October 2008 he travelled to Sri Lanka for a short holiday, intending to return to the United Kingdom. On arrival in Sri Lanka he was told by an official from the British High Commission that the Secretary of State had decided to exclude him from the United Kingdom and to cancel his leave to remain in the United Kingdom. He was also informed that there was no appeal against the exclusion decision but that the decision to cancel his leave to remain gave rise to an out-of-country right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The first applicant exercised that right from Sri Lanka on 3 November 2008.
5. On 2 December 2008 the Secretary of State (Ms Smith) certified that the exclusion decision had been taken on grounds of national security under section 97 of the 2002 Act, with the consequence that the first applicant’s appeal against cancellation of his leave to remain would be heard by SIAC.
6. In March 2009 the Secretary of State (Mr Johnson) served his first “open” statement setting out the reasons for the exclusion decision. It stated that the Security Service assessed the first applicant as adhering to an Islamist extremist agenda espoused by al’Qaeda and that he posed a threat to the national security of the United Kingdom. No reasons were given for these assessments.
7. On 9 April 2009 the first applicant signed a statement responding to the first open statement, essentially denying the Security Service’s allegations.
8. In June 2009 the Secretary of State served his second open statement in response. It stated that the Security Service accepted that the first applicant was not involved in any terrorism-related activity which could have directly harmed members of the public in the United Kingdom or overseas, but he had been involved in the facilitation of terrorism-related activity whilst based in the United Kingdom, of which logistical support could be considered a part. The Security Service accepted that such involvement would be unlikely to have an immediate impact on members of the public in the United Kingdom and overseas. However, left unchecked, the first applicant’s facilitation of such activity could contribute to the effective threat of action in the United Kingdom and might increase the likelihood of successful attacks. The statement also maintained that, despite his assertions to the contrary, the first applicant adhered to an Islamist extremist agenda espoused by al’Qaeda.
9. The hearing before SIAC took place on 13 and 14 October 2009. As indicated above, in those parts of the hearing where the Secretary of State sought to rely on evidence which was not disclosed to the first applicant (so-called “closed material”), the first applicant’s lawyers were excluded from the proceedings and he was represented by special advocates who had access to the material and were present at the hearing.
10. SIAC dismissed the first applicant’s appeal on 30 October 2009. It gave two judgments: an open and a closed judgment. The former was public and has been provided to the Court; the second is not public and was only provided to the Secretary of State and the first applicant’s special advocates.
11. In its open judgment, SIAC considered that, on the basis of his seven and a half years’ continuous residence in the United Kingdom, the applicant had “private life” in the country and that the exclusion had amounted to an interference with his Article 8 rights. In considering whether that interference was justified, SIAC first rejected that applicant’s submission, based on this Court’s judgment in C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008, that Article 8 required at least some disclosure to the first applicant of the material upon which the Secretary of State’s decision to exclude had been based. SIAC found that the problem which this Court had identified with the Bulgarian procedures at issue in that case was that there had been no judicial assessment of the national security risk and judicial review of the expulsion had been confined to a purely formal examination of the decision to expel. SIAC held:
“When properly analysed the Strasbourg Court’s reasoning [in C.G. and Others] provides no support for the proposition that, in a case in which national security is truly in issue and the factual basis for the decision to exclude is fully scrutinised by the domestic court, the rights under Article 8 of the individual excluded will be infringed unless he is provided with an undefined minimum of information about the facts grounding the decision to exclude. The Strasbourg Court’s procedural requirements in a true national security case are those set out in paragraph 57 of its judgment ... SIAC’s procedures satisfy that test and have done so in this appeal.”
12. On the facts of the first applicant’s case, SIAC found that he had been told very little of the national security case against him. Having recorded the terms of the Secretary of State’s second open statement, SIAC observed:
“These statements can be summarised by reference to a phrase used at another time and in a different context: IR is a fellow traveller with active Islamist extremists who may be willing to assist them. For the reasons which are wholly set out in the closed judgment, we are satisfied that that assessment is justified. We have reached the conclusion that he is a fellow traveller on the balance of probabilities. We are also satisfied, for reasons wholly set out in the closed judgment, that he does not truly espouse the moderate views stated in his witness statement but does, in the words of paragraph 5 of the first open statement ‘adhere to an Islamist extremist agenda’.
We are also satisfied that the decision to exclude is proportionate. It is sanctioned by law. The interest sought to be protected - the national security of the United Kingdom and the public security of its inhabitants - is of the highest importance. The measure of exclusion is calculated to protect and enhance those interests and will do so. It is no more than is reasonably required to achieve that end. [Counsel for the first applicant] did not suggest that any alternative measure, such as re-admission and the imposition of a control order or extensive covert surveillance could effectively do so. We are satisfied that it could not. Against that, IR can re-establish a private life in Sri Lanka or elsewhere. No family relationship has been permanently disrupted. The balance lies heavily in favour of upholding the interests of national security.”
13. The applicant appealed against SIAC’s determination to the Court of Appeal. The appeal was heard with that of the second applicant, G.T., and two similar cases (see paragraphs 23-25 below).
3. G.T.’s case
14. G.T. (“the second applicant”) is a Libyan national who was born in 1971. He is represented before the Court by Ms N. Garcia, a lawyer practising in Bradford with Fountain Solicitors.
15. The second applicant married a British citizen of Libyan origin, B.M., in Libya in 2003. They lived there for a year until B.M. became pregnant and returned to the United Kingdom to have the baby there. It was the couple’s intention that the second applicant would join her in the United Kingdom as soon as possible. The couple’s son was born in the United Kingdom in May 2005. On 12 June 2005, after two previous, unsuccessful applications, the second applicant was granted a six-month visitor’s visa. He arrived in the United Kingdom on 19 October 2005. The visa was later renewed to April 2006. A further extension was refused on the basis that he should leave the country and apply again for entry clearance. The second applicant therefore flew back to Libya on 9 July 2006.
16. On 23 August 2006, B.M. was informed by letter that the Secretary of State had decided to exclude the second applicant from the United Kingdom on national security grounds.
17. The second applicant then made an application for entry clearance, which was refused on 13 January 2008, owing to the prior decision to exclude him from the United Kingdom. The refusal attracted a right of appeal. On 19 August 2008 the Secretary of State (Ms Smith) certified that the exclusion decision had been taken on grounds of national security under section 97 of the 2002 Act, with the consequence that the second applicant’s appeal would be heard by SIAC.
18. In the meantime, B.M. had travelled to Libya to visit her husband, but remained resident in the United Kingdom. The couple’s second child was born in the United Kingdom on 3 August 2008.
19. In April 2009 the Secretary of State’s first open statement was served on the second applicant. It stated that the Security Service assessed the second applicant as a Libyan Islamist extremist. The second applicant and his wife provided a statement attempting to deal with this allegation, including a guess that the problem might have been to do with the second applicant’s older brother who lived in Switzerland and was Controller-General of the Libyan branch of the Muslim Brotherhood, although the second applicant stated that he was unaware of the exact nature of his brother’s activities.
20. In a second open statement on behalf of the Secretary of State, served on 30 September 2009, the Security Service stated that it was unable to comment on whether the brother was a member of the Libyan branch of the Muslim brotherhood. Whether or not he was a member of that organisation was not relevant to the case against the second applicant. The second statement also recorded that the second applicant’s contention that, as the Libyan security authorities had shown no interest in him since his return to Libya in July 2006, he was innocent of any wrongdoing. The Security Service did not agree with this conclusion and the Secretary of State did not accept that an apparent lack of interest by the Libyan authorities indicated a lack of involvement in extremist activity. Finally, the statement recorded that the Security Service remained of the view that the second applicant was closely involved with a network of Islamist extremists based in the United Kingdom and overseas.
21. SIAC heard the second applicant’s appeal between 1 and 3 December 2009. The Secretary of State’s case against the second applicant was heard in the absence of the applicant and his representatives but with special advocates present to represent his interests.
22. SIAC dismissed the second applicant’s appeal on 21 December 2009. There were an open and a closed judgment. SIAC’s open judgment recorded that the second applicant had not been able to give instructions to the special advocates about the essential features of the Secretary of State’s case, which, save for the most general words, was entirely contained in the closed case (that is, the materials disclosed only to SIAC and to the special advocates and not the second applicant himself). SIAC also stated that, for reasons which were entirely set out in its closed judgment, it was satisfied that the decision to exclude the second applicant from the United Kingdom was fully justified when made and remained so. Counsel for the second applicant accepted that it was not appropriate for SIAC to go on and consider Article 8, accepting that if the decision on the national security issue was procedurally and legally unimpeachable, the second applicant could not succeed on Article 8 grounds. SIAC noted that position and recognised that, if its decision on the national security issue were to be overset (or overruled), it would have to consider the whole case afresh. The second applicant appealed against the SIAC determination to the Court of Appeal.
4. The Court of Appeal’s judgment
23. The first and second applicant’s appeals to the Court of Appeal were heard together with two other similar appeals from SIAC concerning Pakistani nationals whom the Secretary of State had sought to deport after their arrest and release without charge in a counter-terrorist operation.
24. The appeals were dismissed on 21 June 2011. The Court of Appeal found that there was nothing in this Court’s judgment in A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009, to suggest that Article 8 now required more than independent scrutiny of the claim that deportation or expulsion was necessary on grounds of national security (the test which the Court of Appeal understood this Court to have laid down in Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002, and subsequent cases). Lord Justice Maurice Kay for the unanimous court found (at paragraphs 19 and 20 of the judgment):
“Notwithstanding the subsequent jurisprudence on Articles 5 and 6, there is no reason to suppose that the position in relation to Article 8 has changed. What the relevant authorities require is ’independent scrutiny of the claim’. That language goes back to Chahal v United Kingdom (1996) 23 EHRR 413 (paragraph 151) dealing with the concept of ‘effective remedy’ under Article 13. Independent scrutiny is a sine qua non of the protection against arbitrariness demanded by Al-Nashif. The need for ‘some form of adversarial proceedings’ (Al-Nashif, paragraph 123) is satisfied by the proceedings in SIAC. To the extent (and it is often, as in some of these appeals, a considerable extent) that the proceedings are closed, the use of special advocates from the independent Bar reduces the risk of unfairness. No one suggests that the procedure is perfect. However, it is consonant with Strasbourg jurisprudence, from Chahal (where it was anticipated) to the more recent cases which, in relation to deportation or exclusion on national security grounds, countenance ‘appropriate procedural limitations on the use of classified information’ (Al-Nashif, paragraph 133). Even where the Strasbourg Court focuses on Article 13 (which has not been incorporated into English law but is relied on in the present case as informing the procedural aspect of Article 8), it proceeds on the basis that ‘effective remedy’ is one that is ‘as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance’: Klass v Federal Republic of Germany (1979-80) 2 EHHR 214. That which applies to secret surveillance applies equally to other forms of intelligence in the context of national security.
To encapsulate what I have said about the point of principle in this case: the procedural requirements of Article 8 do impact on a case of deportation or exclusion for national security reasons (assuming that there is an interference with family or private life) but they do not equiparate with the procedural requirements of Article 5 or Article 6. They have the more limited content set out in the Al-Nashif line of authority. The procedure in SIAC, as developed in the domestic jurisprudence, satisfies those requirements.”
25. In the first and second applicant’s cases, he observed:
“The open case against I.R. was more laconic [than the case against the two Pakistani appellants]. It was that he may have been involved ‘in the facilitation of terrorism-related activity whilst based in the UK, of which logistical support could be considered a part’ and that ‘left unchecked, [his] facilitation of terrorism-related activity could contribute to the effective threat of action in the UK and may increase the likelihood of successful attacks’. As [SIAC] put it, he was seen as ‘a fellow traveller with active Islamist extremists who may be willing to assist them’. The closed material persuaded SIAC that that assessment was justified.
The open case against G.T. was similarly terse: ‘closely involved with a network of Islamist extremists based in the UK and overseas’. Again, the case was made out by the closed material.
For any of these appellants to sustain a successful appeal to this Court, it would be necessary to establish an error of law on the part of SIAC. Having resolved the generic point of principle against them, I am unable to detect any such legal error.
I should add that, in any event, three of the appellants (I exclude GT) did not have highly developed private or family lives in this country but that is not the basis upon which I am founding this judgment.”
5. Applications for permission to appeal to the Supreme Court
26. The Supreme Court refused the first and second applicants permission to appeal on 3 November 2011 and 28 March 2012 respectively.
6. Subsequent events
27. The first applicant remains in Sri Lanka. The second applicant and B.M. separated in December 2011, although their third child was born in the United Kingdom in June 2012. The separation was not amicable and B.M. will not allow the second applicant to communicate with their children. There is, therefore, no means by which he can maintain his relationship with his children from outside the United Kingdom.
B. Relevant domestic law and practice
28. SIAC was set up in response to this Court’s judgment in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V (see A. and Others v. the United Kingdom, cited above, § 91). Under section 2(1) of the Special Immigration Appeals Commission Act 1997, appeal to SIAC lies in respect of immigration decisions when the Secretary of State’s decision is taken wholly or partly on grounds of national security or wholly or partly in reliance on information which in the Secretary of State’s opinion should not be made public in the interests of national security, the interests of the relationship between the United Kingdom and any other country, or otherwise in the public interest.
29. SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also other material which cannot (“closed material”). Neither the appellant nor his legal advisor can see the closed material. Accordingly, one or more security-cleared, independent counsel, referred to as “special advocates”, are appointed by the Solicitor General to act on behalf of the appellant.
30. Rule 4 of Special Immigration Appeals Commission (Procedure) Rules 2003 (“the 2003 Rules”) governs the use of closed material and states:
“(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).
(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”
31. Rule 36 regulates communication between the special advocate and the appellant in the case. Before closed material has been served on the special advocate, he may communicate freely with the appellant and his representative. Once closed material has been served, the special advocate is not permitted to communicate with any person about any matter connected with the proceedings, subject to limited exceptions. The special advocate is therefore permitted to communicate with SIAC itself; the Secretary of State and the Attorney General (England and Wales)/Lord Advocate (Scotland)/Attorney General for Northern Ireland, or any person acting for them; and any other person, except the appellant and his representative, with whom it is necessary for administrative purposes for him to communicate about matters not connected with the substance of the proceedings. The special advocate may request directions from SIAC authorising him to communicate with the appellant or his representative. Rule 36 does not prohibit the appellant from communicating with the special advocate after the Secretary of State has served closed material on him, but such communication must be through a legal representative in writing and the special advocate must not reply to the communication other than in accordance with directions of SIAC.
32. Rule 37(3)(c) directs that when serving closed material upon the special advocate, the Secretary of State must also serve a statement of the material in a form which can be served on the appellant, if and to the extent that it is possible to do so without disclosing information contrary to the public interest.
33. Rule 38 provides that a special advocate may challenge the Secretary of State’s objections to disclosure of the closed material. SIAC may uphold or overrule the Secretary of State’s objection. If it overrules the objection, it may direct the Secretary of State to serve on the appellant all or part of the closed material which he has filed with the SIAC but not served on the appellant. In that event, the Secretary of State shall not be required to serve the material if he chooses not to rely upon it in the proceedings.
34. A search is carried out for “exculpatory material”, that is, material that will advance the case of an appellant or detract from the case of the Secretary of State. Exculpatory material is disclosed to the appellant save where this would not be in the public interest. In that event it is disclosed to the special advocate.
35. Section 7 of the 1997 Act confers a right of appeal to the Court of Appeal against a final determination of an appeal made by SIAC in England and Wales “on any question of law material to that determination”.
C. Relevant European Union law
1. Article 20 TFEU
36. Article 20 of the Treaty on the Functioning of the European Union provides:
“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”
37. In Zambrano v. Office national de l’emploi (ONEm), C-34/09, judgment of 8 March 2011, the Grand Chamber of the Court of Justice found that Article 20 had to be interpreted as precluding a Member State from refusing a third country national with minor children who were European Union citizens and were dependent a right of residence in the Member State of residence and nationality of those children.
2. Z.Z. v. the Secretary of State for the Home Department, Case C-300/11
38. In Z.Z., the Court of Appeal for England and Wales made a preliminary reference to the Court of Justice in the context of SIAC proceedings following a decision, taken under Article 27 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, to exclude a European Union citizen from the United Kingdom on grounds of public policy and public security. The Court of Appeal asked the Court of Justice whether the Directive and the principle of effective judicial protection guaranteed by Article 47 of the EU Charter of Fundamental Rights required a European Union citizen to be informed of the essence of the grounds for a decision refusing him entry under Article 27, notwithstanding the fact that the authorities had concluded that such disclosure would be contrary to the interests of State security.
a. The opinion of the Advocate-General
39. Advocate-General Bot, in his opinion delivered on 12 September 2012, analysed this Court’s case-law on Articles 8 and 13 in national security immigration cases. He noted:
“97. The fact that the European Court of Human Rights has also observed in some cases that the applicants had not been informed of the allegations against them does not seem a crucial factor in establishing whether they benefited from adequate safeguards against arbitrary interference. In those cases, the finding of an infringement of Articles 8 and 13 of the ECHR seems to stem from the fact that the non-disclosure to the applicants of the allegations against them had not been counterbalanced either by a rigorous independent judicial review of the genuineness of the threat to national security or by the introduction of authentically adversarial proceedings.
98. In view of this standard defined by the European Court of Human Rights with regard to the procedural safeguards applicable to expulsion and exclusion measures, I consider that the procedural system established by the United Kingdom makes it possible, in the relevant field, to strike a fair balance between the interests connected with the procedural rights of Union citizens, on the one hand, and with State security, on the other.
99. As the European Court of Human Rights has stated with regard to cases involving the United Kingdom, SIAC is a fully independent court, fully informed of allegations against the subject of an expulsion measure and fully authorised to set aside such a measure if the threat to national security presented by that person is not duly proven. To that end, it examines all the relevant evidence, both closed and open, ensuring that no material was unnecessarily withheld from the applicant. The European Court of Human Rights has also held that the power for special advocates to question the State’s witnesses on the need for secrecy and to make submissions to the judge regarding the case for additional disclosure can provide an additional safeguard and helps to mitigate the possible risk which SIAC might run by relying on closed evidence.
100. In the light of the foregoing and having regard to the margin of discretion enjoyed by the Member States in defining procedural safeguards to ensure a balance between the different interests at stake, I consider that the procedural rules introduced by the United Kingdom offer the national court the necessary tools to guarantee a satisfactory degree of fairness in the procedure.” (footnotes omitted)
b. The judgment of the Court of Justice
40. The Court of Justice, in its judgment of 4 June 2013, referred to its settled case-law to the effect that if the judicial review guaranteed by Article 47 of the Charter was to be effective, the person concerned had to be able to ascertain the reasons upon which a decision affecting him was based, either by reading the decision itself or by requesting and obtaining notification of those reasons, so as to make it possible for him to defend his rights in the best possible conditions and in order to enable a court reviewing the refusal to carry out a review of the lawfulness of the national decision in question.
41. However, the court accepted that it might prove necessary, both in administrative proceedings and in judicial proceedings, not to disclose certain information to the person concerned, in particular in the light of overriding considerations connected with State security. Thus while, in principle, the fundamental right to an effective legal remedy would be infringed if a judicial decision were founded on facts and documents which a party had not had an opportunity to examine, the court explained:
“57. However, if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken ... by invoking reasons of State security, the court with jurisdiction in the Member State concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle ...
58. To that end, the Member States are required, first, to provide for effective judicial review both of the existence and validity of the reasons invoked by the national authority with regard to State security and of the legality of the decision taken ... and, second, to prescribe techniques and rules relating to that review, as referred to in the preceding paragraph of the present judgment.”
42. In the context of Article 31 of the Directive, which imposed an obligation on Member States to provide for judicial and administrative redress procedures to enable an individual to challenge a decision taken against him, the Court of Justice held that it was incumbent upon the Member States to lay down rules enabling the court entrusted with review of the decision’s legality to examine all the grounds and the related evidence on the basis of which the decision was taken. It continued:
“60. As for the requirements to be met by judicial review of the existence and validity of the reasons invoked by the competent national authority with regard to State security of the Member State concerned, it is necessary for a court to be entrusted with verifying whether those reasons stand in the way of precise and full disclosure of the grounds on which the decision in question is based and of the related evidence.”
43. Thus, the court explained, the competent national authority had the task of proving that State security would in fact be compromised by precise and full disclosure to the person concerned of the grounds and the related evidence; there was no presumption that the reasons invoked by a national authority existed and were valid. The national court was accordingly required to carry out an independent examination of all the matters of law and fact relied upon by the competent national authority and had to determine whether State security stood in the way of disclosure. If it found that State security did stand in the way of disclosure, judicial review of the legality of a decision taken under Article 27 of the Directive had to be carried out in a procedure which struck an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection, while limiting any interference with the exercise of that right to that which was strictly necessary. The procedure had to ensure, to the greatest possible extent, that the adversarial principle was complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. The person concerned had to be informed, in any event, of the essence of the grounds on which the decision was based. The national court had further to consider whether and to what extent the restrictions on the rights of the defence arising from a failure to disclose evidence and the precise and full grounds for the decision were such as to affect the evidential value of the confidential evidence.
44. The Court of Justice therefore answered the question posed by the Court of Appeal in the following way:
“69. ... Articles 30(2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, 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.”
45. The applicants complained that the failure to disclose the national security case against them amounted to a violation of their rights under Article 8 and Article 13 read in conjunction with Article 8 of the Convention.
A. Joinder of the applications
46. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. The applicants’ complaints under Articles 8 and 13
47. Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
48. Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. The applicants’ submissions
49. The first applicant submitted that the violation arose from the denial of access of sufficient information to enable him to conduct any meaningful challenge to the national security allegations against him. The decision against him had been in vague, general terms which lacked particularity such as to enable him to call or provide evidence in rebuttal. The appeal before SIAC was in no sense a meaningful challenge and had been unfair. There was an interference with his Article 8 rights based on his prior lawful residence and permanent employment in the United Kingdom and because the allegations made against him were an attack on his reputation and thus had a powerful adverse effect on his identity, autonomy and private life.
50. In that context, the procedural obligation inherent in Article 8 required more by way of procedural fairness than was provided by SIAC’s procedures. The Court’s case-law was clear and consistent in requiring sufficient disclosure to enable an applicant to challenge effectively any State interference with his or her Article 8 rights (citing Lupsa v. Romania, no. 10337/04, ECHR 2006-VII; Al-Nashif, cited above; C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008; Turek v. Slovakia, no. 57986/00, ECHR 2006-II (extracts); A and Others, cited above; and Liu v. Russia (no. 2), no. 29157/09, 26 July 2011. There was no hierarchy of rights which would place the procedural obligations provided in Articles 5 § 4 and 6 above those inherent in Article 8.
51. The second applicant adopted these submissions. He emphasised the gravity of the interference with his Article 8 rights, the effect of which had been to deprive him of all contact with his children to the stage where he had not even met one of them. High standards of procedural fairness were required for such a core Article 8 right and they had not been attained in his case. Finally, he contended that his exclusion engaged European Union law.
2. The Court’s assessment
52. As a preliminary matter, the Court observes that the applicants were outside the territorial jurisdiction of the United Kingdom when the decisions to exclude them from the United Kingdom were made. The same is true in respect of the decisions to cancel the first applicant’s leave to remain and to refuse the second applicant’s application to re-enter. The question might therefore arise whether there is a sufficient jurisdictional link with the United Kingdom in the present case for the purposes of Article 1 of the Convention (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 149-150, ECHR 2011), notably by reason of United Kingdom law giving the applicants an “out-of-country” right of appeal against the decisions to cancel leave to remain and to refuse the application to re-enter the country. However, the Court does not consider it necessary to pursue this preliminary issue since it has come to the conclusion that the applications are in any event inadmissible on other grounds.
b. The scope of the complaints
53. Both applicants’ complaints, before the Court of Appeal and before this Court, were directed solely at the procedure followed by the Secretary of State in making the exclusion orders and before SIAC in examining their appeals. In particular, the applicants complain about an alleged failure to provide adequate information for them to be able to understand and respond to the allegations against them. They rely on Article 8 taken alone and in conjunction with Article 13. Neither applicant has otherwise challenged the legality of the measures taken against him or argued that the decision to exclude him was not proportionate (compare and contrast Al-Nashif, cited above, §§ 102-105; and Liu (no. 2), cited above, §§ 71-73).
54. In these circumstances, the Court considers it appropriate to examine, in the light of the requirements of Article 8 taken on its own and together with Article 13, the nature and extent of the procedural safeguards available to the applicants during the impugned proceedings.
c. The existence of an interference with respect for private or family life
55. As a matter of well-established international law and subject to their treaty obligations, States have the right to control the entry, residence and expulsion of aliens. The Convention does not guarantee the right of an alien to enter or to reside in a particular country (see, recently, De Souza Ribeiro v. France [GC], no. 22689/07, § 77, ECHR 2012). However, the removal of a person from a country where close members of his family are living or where he has strong personal or social ties, as in the case of a settled migrant, may amount to an infringement of the right to respect for family or private life as guaranteed in Article 8 § 1 of the Convention (see Al-Nashif, cited above, § 114; Lupsa, cited above, § 25; and Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008).
56. In the case of the first applicant, it was accepted by SIAC that he enjoyed private life in the United Kingdom (see paragraph 11 above). In the case of the second applicant, the matter was not discussed in light of his counsel’s concession as to the absence of any arguable Article 8 claim in the event of a finding that the applicant posed a risk to national security (see paragraph 22 above). However, the Court is prepared to accept for the purposes of the present decision that the second applicant has demonstrated that his exclusion from the United Kingdom interfered with his private and family life in the United Kingdom.
d. General principles concerning procedural safeguards under Article 8 in national security immigration cases
57. In a series of Bulgarian cases, the Court has developed the idea of the need for procedural safeguards as an integral feature of the lawfulness of deportation and exclusion decisions under Article 8 of the Convention (see Al-Nashif and C.G and Others, both cited above; Kaushal and Others v. Bulgaria, no. 1537/08, 2 September 2010; Raza v. Bulgaria, no. 31465/08, 11 February 2010; M. and Others v. Bulgaria, no. 41416/08, 26 July 2011; Madah and Others v. Bulgaria, no. 45237/08, 10 May 2012; and Amie and Others v. Bulgaria, no. 58149/08, 12 February 2013). It is clear from this case-law that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require measures affecting fundamental human rights to be subject to “some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information” (Al-Nashif, cited above, § 123. See also C.G and Others, cited above, § 40; and Amie and Others, cited above, § 92). In the context of such proceedings, the executive’s assertion that national security is at stake must be open to challenge. While the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where the assessment has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or contrary to common sense and arbitrary (see Al-Nashif, cited above, § 124; and C.G and Others, cited above, § 40).
58. The use of confidential material in the proceedings may be unavoidable where national security is at stake (see Chahal, cited above, § 131; and Raza, cited above, § 53). It may therefore sometimes be necessary to classify some or all of the materials used in proceedings touching upon matters of national security and even parts of the decisions rendered in them. However, the complete concealment from the public of the entirety of a judicial decision in such proceedings cannot be regarded as warranted. The publicity of judicial decisions aims to ensure scrutiny of the judiciary by the public and constitutes a basic safeguard against arbitrariness (see Raza, cited above, § 53). Even in indisputable national security cases, such as those relating to terrorist activities, the authorities of countries which have suffered and remain at risk of terrorist attacks have chosen to keep secret only those parts of their decisions whose disclosure would compromise national security or the safety of others (see A. and Others, cited above, §§ 93 and 215). This demonstrates that there are techniques which can accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice (see Chahal, cited above, § 131; and Raza, cited above, § 53).
e. Examination of the applicants’ complaints
59. The core of the applicants’ case is that Article 8 required more specific information to be provided as to the nature of the allegations against them and the purported threat to national security that they posed. In order to succeed, the applicants must establish that the procedural guarantees under Article 8 required such information to be disclosed in the circumstances of their cases. They rely heavily on this Court’s judgment in Liu (no. 2), cited above, § 90, where, in finding a violation of Article 8, the Court commented specifically on the vagueness of the allegations made against the applicant in that case (see also, recently, Amie and Others, cited above, 98). However, it is important to note that the vague nature of the allegations was merely one of several factors to which the Court referred in reaching its conclusion in Liu (no. 2) and in Amie and Others. Other relevant factors in Liu (no. 2) included the failure of the national courts effectively to scrutinise the authorities’ claim that the applicant posed a threat to national security (§§ 88-89); the fact that applicable legal provisions had not been published (§ 89); and the failure of the national courts to balance the public interest in deporting the applicant against the interests inherent in his right to respect for family life (§§ 94-95). In Amie and Others, the Court also referred to the facts that the domestic courts had failed to carry out a genuine review of the allegations and that no judgment was provided to the applicant in that case (§§ 98-99).
60. While it is incumbent on States under Article 8 of the Convention to put in place a procedure in cases giving rise to national security concerns which strikes a balance between the need to restrict access to confidential material and the need to ensure some form of adversarial proceedings, there may be more than one way of achieving this goal. This Court must therefore examine the entirety of the system put in place in the Contracting Party in question in order to assess whether the procedural guarantees required by Article 8 have been respected in the particular circumstances of the case. A procedural defect present in one respect might well be offset by a procedural safeguard present in another.
61. It is true that in A and Others, cited above, the Court found in the context of Article 5 § 4 of the Convention that where the open material consisted purely of general assertions and SIAC’s decision to maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 § 4 would not be satisfied. However, the text of Article 5 § 2 itself requires that the reasons for an arrest be provided to a detained person. Similarly, Article 6 § 3 (a) explicitly requires that a person charged with a criminal offence be given details of the nature and case of the accusation against him. These provisions are solely concerned with procedural guarantees and the express reference to the need for detailed information in the context of cases arising under Article 5 and Article 6 § 3 cases reflects the fact that what is at stake in such proceedings is a person’s liberty, and that the fundamental principle is that everyone has the right to liberty and security of person unless one of the specified exceptions applies (see Article 5 § 1). By contrast, Article 8 does not guarantee aliens the freedom to enter or reside in the country of their choice (see paragraph 55 above) and their right to respect for private and family life is qualified by Article 8 § 2, which specifically envisages exceptions for reasons of national security. It follows that the procedural guarantees inherent in Article 8 of the Convention will vary depending on the context of the case in question and in some circumstances may not be as demanding as those which apply under Articles 5 and 6.
62. Further, given the overlap between the procedural safeguards under Article 8 and the right to an effective remedy under Article 13, the former should be interpreted in a manner consistent with the latter. It is noteworthy that as far as Article 13 is concerned, the Court has accepted that the context in which an alleged violation occurs might entail inherent limitations on the conceivable remedy (see Kudła v. Poland [GC], no. 30210/96, § 151, ECHR 2000-XI; and Al-Nashif, cited above, § 136). In such circumstances the requirement in Article 13 of an “effective remedy” is to be read as meaning “a remedy that is as effective as can be” having regard to the restricted scope for recourse inherent in the particular context (see, for example, Klass and Others v. Germany, 6 September 1978, § 69, Series A no. 28, concerning secret surveillance; and, more recently, De Souza Ribeiro, cited above, §§ 82-83, where the Grand Chamber accepted that in Article 8 expulsion cases, unlike in Article 3 expulsion cases, the need for an effective remedy did not require the remedy to have automatic suspensive effect). In Al-Nashif, cited above, § 137, the Court explained that in cases concerning the expulsion of aliens on grounds of national security, the guarantee of an effective remedy contained in Article 13 required as a minimum that the competent independent appeals authority be informed of the reasons grounding the deportation decision. It did not go so far as to require provision of this information to the individual concerned. The Court further stipulated that the appeals authority had to be competent to reject the executive’s assertion that there was a threat to national security where it found it arbitrary or unreasonable; that there had to be some form of adversarial proceedings, if need be through a special representative after a security clearance; and that the question whether the measure would interfere with the right to respect for family life and, if so, whether a fair balance had been struck between the public interest involved and the individual’s rights had to be examined.
63. The Court is satisfied that the procedure in place in the United Kingdom is such as to offer sufficient procedural guarantees for the purposes of Article 8. First, SIAC is a fully independent court (A. and Others, cited above, § 219). Second, SIAC sees all the evidence upon which the Secretary of State’s decision to exclude an individual is based and forms its own, independent view as to whether the Secretary of State reached the correct decision (see F.A.K. v. the Netherlands (dec.), no. 30112/09, § 82, 23 October 2012; and compare and contrast Liu (no. 2), cited above, §§ 88-89 and 91). It is thus competent to examine and, if necessary, to reject the Secretary of State’s assertion that the appellant poses a threat to national security. Third, there is some form of adversarial proceedings before SIAC, with appropriate procedural limitations - in the form of the special advocates - on the use of classified information. During the closed sessions before SIAC, the special advocate can make submissions on behalf of appellants, both as regards procedural matters and as to the substance of the case. Importantly, Rule 38 of the SIAC 2003 Rules (see paragraphs 30-34 above) provides explicitly for a procedure where the special advocate may challenge the Secretary of State´s objections to disclosure of the closed material (see paragraph 33 above). In this way, the special advocate provides an important, additional safeguard through questioning the State’s witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure (see A. and Others, cited above, § 219). While contact between the appellant and the special representative generally ceases once the closed material has been served in order to preserve the confidentiality of the information, it is not wholly excluded. There is provision for requesting authorisation from SIAC to permit contact in specific circumstances. In particular, the appellant may still contact the special advocate, through his representative, and the special advocate can then request permission for contact if he deems it necessary (see paragraph 31 above). The system of special advocates was approved in principle by the Grand Chamber in A. and Others, cited above. Fourth, cases before SIAC are primarily concerned with allegations of terrorist activity: there is no evidence that SIAC has allowed the Secretary of State to adopt an interpretation of “national security” which is unlawful, contrary to common sense or arbitrary (compare and contrast C.G. and Others, cited above, § 43; and Raza, cited above, § 53). Fifth, in contrast to Amie and Others, cited above, § 99, only parts of SIAC’s judgments are classified (or “closed”). The appellant is provided with an “open” judgment providing as much information as possible on the reasons for SIAC’s decision. Further, the “closed” parts of the judgment are disclosed to his special advocate. Finally, SIAC has full jurisdiction to determine whether the exclusion interferes with the individual’s Article 8 rights and, if so, whether a fair balance has been struck between the public interest and the appellant’s rights. If it finds that the exclusion is not compatible with Article 8, it will quash the exclusion order (compare and contrast Liu (no.2) cited above, §§ 94-95).
64. In the applicants’ cases, the procedure functioned as intended, with independent special advocates appointed to represent their interests in the proceedings before SIAC (see paragraphs 9 and 21 above). SIAC examined the basis for the allegations against the applicants and was satisfied that they had been made out (see paragraphs 12 and 22 above). In no sense was SIAC’s assessment “a purely formal” or “formalistic” examination” of the decision to exclude the applicants (compare and contrast C.G. and Others, cited above, § 47; and Liu (no. 2), cited above, § 91). In the case of the first applicant, it is clear that SIAC also considered his Article 8 claim and rejected it for reasons provided in its “open” judgment (see paragraph 12 above). The second applicant’s Article 8 claim was not specifically addressed by SIAC because his own counsel was satisfied that if the national security allegations were upheld by SIAC, his Article 8 claim would be bound to fail (see paragraph 22 above). The fact that SIAC accepted in its “open” judgment that if its decision on the national security allegations were overruled the whole case would have to be considered afresh demonstrates that it was prepared to give consideration to any Article 8 claim considered arguable by the second applicant’s counsel. It is also noteworthy that in the context of the written proceedings in the second applicant’s case, the Secretary of State was able to provide clarification concerning the allegations against him and did so in his second open statement (see paragraph 20 above).
65. In these circumstances, the Court is satisfied that there were sufficient guarantees in the SIAC proceedings as required by Article 8 taken alone and together with Article 13 of the Convention.
66. As to the second applicant’s arguments based on EU law, the Court’s sole task under Article 19 of the Convention is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. It is not its task to apply directly the level of protection offered in other international instruments (see NA. v. the United Kingdom, no. 25904/07, § 107, 17 July 2008). The same is true of the protection offered by EU law. Further, since the Convention sets out minimum standards and it is open to Contracting States to provide a higher level of protection to those within their jurisdictions, the content of EU law and its interpretation by the Court of Justice are not decisive for the interpretation of Article 8 by this Court.
67. Accordingly, and for the foregoing reasons, it is appropriate to reject both applications as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Françoise Elens-Passos Ineta