COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS
COMMISSION (Mr Justice Mitting)
Ref No: SC63/2007, BAILII:  UKSIAC 63/2007
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE MOSES
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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
Crown Copyright ©
Lord Justice Maurice Kay :
"… 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.
1. EU law
(1) Procedural fairness and disclosure
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.
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.
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.
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:
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.
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 …"
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 …
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."
"on grounds of public policy, public security or public health."
"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 …"
"if the decision is based on imperative grounds of public security, as defined by Member States." (Article 28.3)
"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."
"The answer is that Community law is concerned with practical affairs. Inevitably, there must be derogations in respect of the interests of security of Member States. The general principle that reasons must be given for administrative decisions must yield to the interests of the security of Member States. Such derogations must be narrowly construed. But they exist … we consider that the answer … is to be found in the Treaty. The rights under Article 8(a)(1) are expressed to be 'subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give effect to it'. That brings into play … Article 223, which provides that no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security. In addition … if Article 8a(1) is given broad interpretation it is, in any event, subject to an implied derogation in respect of the interest of security of Member States Council Directive (EEC) 64/221 [the predecessor of the Citizens' Directive] … therefore becomes relevant."
Article 6 of Directive 64/221 provided:
"The person concerned shall be informed of the grounds of public policy, public security or public health upon which the decision taken in his case is based, unless this is contrary to the interests of the security of the State involved."
This was the predecessor, in slightly different terms, of Article 30.2 of the Citizens' Directive. In Adams, the Court was in receipt of evidence "which comprehensively asserts that it would be contrary to the interests of the state to reveal the grounds on which the Secretary of State based his decision". On this basis, the Court rejected the challenge based on the absence of disclosure.
Article 47 of the Charter
"shall not extend in any way the competences of the Union as defined in the Treaties,"
and rights, freedoms and principles in it are to be interpreted with due regard to the Explanations which have been provided to accompany it. Putting all this together, it seems to me that the Charter is not a free-standing, rights-creating legislative instrument. It is akin to a restatement of rights, freedoms and principles already established in law as a result of, inter alia, judgments of the Luxembourg Court. A perusal of the Explanations in relation to Article 47 confirms that interpretation. They make it clear that the rights, freedoms and principles extend beyond those contained in Articles 6 and 13 of the ECHR because, for example, the right to a fair hearing is not confined to disputes "relating to civil law rights and obligations". They refer to Luxembourg decisions upon which the reaffirmation is based. However, what the Charter does not and cannot do is to give birth to rights, freedoms and principles in areas in which the Treaties claim no rule-making competence but acknowledge the exclusive competence of Member States. This is spelt out in Article 51.2 of the Charter, as to which the Explanations state:
"[Article 51.2] confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred on it …
[It] also confirms that the Charter may not have the effect of extending the field of application of Union law beyond the powers of the Union as established in the Treaties … it goes without saying that the reference to the Charter in Article 6 of [TEU] cannot be understood as extending by itself the range of Member State action considered to be 'implementation of Union law'."
In other words, a Member State is not to be taken to be acting "in the implementation of Union law" if it is acting within an area which, under the Treaties, is not allocated for Union legislation.
"In particular, national security remains the sole responsibility of each Member State."
"only when they are implementing Union law."
The SIAC procedure as it applies in the circumstances of this case is not an implementation of Union law. It is a procedure of domestic provenance in an area which is the "sole responsibility" of a Member State.
"To require a Member State, seeking to uphold a decision to exclude a Union citizen on grounds of public security, to withdraw that decision or to cease to rely upon potentially decisive grounds to support it because, for proper reasons of national security, it was unwilling to disclose to him details of the evidence on grounds upon which the decision was made would not respect that Member State's essential state functions. It would itself be a breach of one of the fundamental principles of Union law."
I agree. It is also worth recording that in this and similar cases there is a prior judicial decision under Rule 38(7) of the SIAC Procedure Rules to the effect that disclosure of the material would be contrary to the public interest.
"… in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law."
"Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence."
"… conduct may not be considered as being of a sufficiently serious nature to justify restrictions on the admission to or residence within the territory of a Member State of a national of another Member State in a case where the former Member State does not adopt, with respect to the same conduct on the part of its own nationals, repressive measures or other genuine or effective measures intended to combat such conduct."
"Despite its ingenuity, this argument is fallacious. [The] requirements apply in non-derogatory control order cases because Article 6 ECHR is engaged … it is not engaged in deportation cases."
I agree. Moreover, as a matter of fact a UK national and a national of another Member State are not properly comparable for present purposes. A UK national has an inalienable right to live in and enter the United Kingdom, whereas a national of another Member State is dependent upon rights of entry and residence conferred by the Treaties and secondary legislation made pursuant to them which in turn include express limitations on those rights, including the right of a Member State to exclude a citizen of another Member State on grounds of public policy, public security or public health. As the Court of Justice said in Shingara and Radiom  3 CMLR 703 (at paragraphs 29-30):
"… the remedies available to nationals of other Member States in the circumstances defined by the Directive [then 64/221] – that is to say, where a decision concerning entry into the country, the issue or renewal of a residence permit or expulsion has been taken for reasons of public order or public security – cannot be accessed by reference to the remedies available to nationals concerning the right of entry.
The two situations are indeed in no way comparable."
2. The standard of proof
"Authority … does not compel a conclusion as to the standard of proof to be applied to past facts when assessing the personal conduct of a person. In relation to past facts, the use of the word 'conduct' imports something that is found to have happened. Proof that something has happened … is ordinarily achieved either by proof on balance of probabilities or to a criminal standard or to something approaching it. The criminal standard is not appropriate, for two reasons:
'(i) in the field of national security, evidence and information may not be capable, for good reason, of being traced back to an ultimate source; and it will often be undesirable or impossible for that source to be examined directly
(ii) the court concluded in European Commission v Spain  ECR I-1097 that something far short of proof to the criminal standard can support a conclusion that the personal conduct of a person represents 'a genuine present and sufficiently serious threat'.
That leaves the balance of probabilities. This test is familiar and not difficult to apply, as the decisions of the Commission in deportation cases demonstrate … We have ultimately applied that standard to the factual questions to which we have determined."
In so doing, SIAC drew on Secretary of State for the Home Department v Rehman  1 AC 153, to which I shall return.
"It does not follow from this that a mere balance of probabilities suffices to justify the making of an order. Banning orders … fall into the same category as anti-social behaviour orders and sex offender orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should leave the justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard: see B v Chief Constable of Avon and Somerset Constabulary  1 WLR 340, 354 and R (McCann) v Crown Court at Manchester  1 WLR 1084, 1102.
Thus the necessity in the individual case to impose a restriction on a fundamental freedom must be strictly demonstrated."
A little later, when dealing with the statutory requirement that the court must be "satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches", Lord Phillips added that that, too, "must be proved to the same strict standard of proof". All this leads Mr Southey to contend for either the criminal standard or, in the words of Lord Phillips, "an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard".
"There must be material on which proportionately and reasonably [the Secretary of State] can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a 'high civil degree of probability'. Establishing a degree of probability does not seem relevant to the reaching of a conclusion on whether there should be a deportation for the public good."
Lord Steyn agreed (at paragraph 27). Lord Hoffmann added (at paragraph 56):
"… the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant's deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee."
Lord Clyde (at paragraph 63) agreed with Lord Hoffmann and Lord Hutton (at paragraph 65) spoke to like effect.
"We have in fact been able to, and have, determined some of the essential questions of fact in the closed judgment to the criminal standard. If, ultimately, it is determined that that standard, not the balance of probabilities, is to be applied, an appellate court which reads both the open and closed judgments will, we trust, have sufficient findings of fact to permit the issue to be determined without a hearing."
"The weight to be given to the family life of this family in the balancing exercise required by the principle of proportionality is very heavy.
Nevertheless, 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 security namely its public security and that it outweighs his and their right to enjoy family life in the UK …
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 … "
Reference to Luxembourg
Lord Justice Carnwath:
"The family circumstances of ZZ, his wife and children are such that the principle of proportionality requires that they could only be outweighed by imperative grounds… of public security…"
"Subject to the distress caused by their enforced separation, ZZ and his wife are happily married. They have eight children aged from six to seventeen. All have spent the whole of their lives in the United Kingdom, apart from the oldest boy Abdurrahman, who spent an unhappy year at school in Algeria in 2005/6, when aged eleven. English is the first language of ZZ's wife and children. Apart from the fact that ZZ is Algerian, none of them have any contact with or affinity for Algeria. All view the prospect of living in Algeria with dismay. We have read, and accept as truthful and not overstated, the witness statement of ZZ's wife and the statements and letters of his six oldest children. The statement of his eldest daughter Heiba is particularly clear and moving. We accept that, despite the matters which we have found to be proved in the closed judgment, ZZ has been a kindly husband and father and has kept his family free from extremist views. We have found the report of Renee Cohen dated 8th April 2008 to be especially illuminating. She found that ZZ's wife was under very great stress and that the situation was taking its toll upon her mental health. We saw for ourselves her unexaggerated distress in the open sessions. The children created a very favourable impression upon Mrs Cohen. We saw some of them during the open sessions and her impression is confirmed by what we saw. We accept, without reservation, her conclusion that the enforced separation of ZZ from his family is having a profound and damaging impact upon it and, given the nature of these proceedings, that the situation is necessarily incomprehensible to them. We share her concern that this situation may have a serious long term impact upon intelligent children who might be made bitter and antagonistic to the British society in which they have been raised. On any view, the enforced separation is a tragedy for ZZ's wife and his children. Further, public security considerations apart, we would regard it as unreasonable for ZZ's wife and children to resettle in Algeria. The weight to be given to the family life of this family in the balancing exercise required by the principle of proportionality is very heavy" (para 19)
Nonetheless, on the basis of the material in the closed judgment (not of course disclosed to ZZ or his family), the judge held that the conduct of the applicant represent a sufficiently serious threat to public security to outweigh their ordinary rights to family life.
"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 taken, unless this is contrary to the interests of state security." (emphasis added)
That security exception is reflected in the SIAC procedure rules. Rule 37 enables the Secretary of State to object to disclosure of material on which he intends to rely. Under rule 38(7), SIAC -
"… must uphold the Secretary of State's objection under Rule 37 where it considers that the disclosure of the material would be contrary to the public interest."
"… shall allow for an examination of the legality of the decision, as well as the facts and circumstances on which the proposed measure is based, and shall ensure that the decision is not disproportionate…" (Art. 31.3)
"The court further considers that the Special Advocate could perform an important role in counter-balancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the Special Advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the Special Advocate….
Where… the open material consisted purely of general assertions and SIAC's decision to uphold the certification and 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." (para 220)
In AF Lord Phillips, giving the leading judgment, referred to the -
"… strong policy considerations that support a rule that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him" (para 63)
"Before A v United Kingdom, Strasbourg had made it plain that the exigencies of national security could justify non-disclosure of relevant material to a party to legal proceedings, provided that counter-balancing procedures ensured that the party was accorded 'substantial measure of procedural justice'… The Grand Chamber has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence against him, at least when he is at risk of consequences as severe as those normally imposed under a control order" (para 65).
"of his actions in participating in the financing, planning, facilitating, preparing or perpetrating of acts or activities by….Al Qaeda….".
It was held that this was insufficiently specific. The court referred to the judgment of the European Court of Human Rights in A v The United Kingdom and commented:"
"Applying criteria identical to those used by the European Court of Human Rights to the facts of the present case, it is clear that the applicant was not in a position to mount an effective challenge to any of the allegations against him, given that all that was disclosed to him was the summary of reasons (para 177)."
The court observed that the infringement had not been remedied because:
"according to the fundamental position adopted by the Commission and supported by the Council and the intervening Governments, no information or evidence of that kind may be the subject of investigation by the Community judicature…"(para 182)
The court held that in view of that position it was not able to undertake a review of the lawfulness of the contested regulation, with the result that the applicant's fundamental right to effective judicial review had not been observed.
"Does the principle of effective judicial protection require that a judicial body considering an appeal from a decision to exclude a EU citizen from a member state on grounds of public policy and public security under chapter VI of Directive 2004/38 ensure that the EU citizen concerned is informed of the essence of the grounds against him, notwithstanding the interests of state security?".
Lord Justice Moses: