England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Mitting
Case no. SC/63/2007

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th January 2014

Lord Justice Richards :

1. On 19 September 2006 the Secretary of State refused the appellant, ZZ, admission to the United Kingdom pursuant to regulation 19(1) of the Immigration (European Economic Area) Regulations 2006 on the basis that his exclusion was justified on grounds of public security. His appeal against that decision lay to the Special Immigration Appeal Commission ("SIAC") and was dismissed by SIAC in July 2008. An appeal against SIAC's decision was heard by the Court of Appeal (Maurice Kay, Carnwath and Moses LJJ) in early 2011. The court dismissed the domestic law grounds of appeal but decided to refer a question of EU law to the Court of Justice of the European Union ("the CJEU") for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union ("the TFEU"): see [2011] EWCA Civ 440. The CJEU gave its judgment on that reference on 4 June 2013: see Case C-300/11, ZZ v Secretary of State for the Home Department [2013] 3 WLR 813. The parties are now in dispute about the meaning and effect of the CJEU's judgment. It falls to us to resolve the dispute.

The relevant question of EU law

2. ZZ has dual Algerian and French nationality. The refusal to admit him into the United Kingdom restricts the rights of free movement and residence that he enjoys as a citizen of the European Union by virtue of his French nationality. SIAC decided that the restriction was justified on imperative grounds of public security. The essential question is whether in the SIAC proceedings the appellant had sufficient disclosure of the case against him to comply with the procedural requirements of EU law. In order to understand the rival contentions and the reasoning of the CJEU on that question, however, it is necessary to set out the background a little more fully.
3. By Article 27(1) of Directive 2004/38/EC ("the Directive"), Member States "may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health". Article 30(1) of the Directive makes provision for the persons concerned to be notified in writing of any decision taken under Article 27(1). Article 30(2) provides:

"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."

Article 31 provides:

"(1) The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

…

(3) The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28. "

4. Article 47 of the Charter of Fundamental Rights of the European Union ("the Charter") is relevant to the interpretation of those provisions of the Directive. It provides:

"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 …."

I should also note Article 52(1) of the Charter, to which the CJEU makes specific reference. It provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law "and respect the essence of those rights and freedoms"; and that subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

5. Regulation 19(1) of the Immigration (European Economic Area) Regulations 2006, pursuant to which ZZ was refused admission to the United Kingdom, reflects Article 27(1) of the Directive in providing that a person is not entitled to be admitted if his exclusion is justified on grounds of public policy, public security or public health.
6. The appeal against that refusal lay to SIAC by virtue of a certification by the Secretary of State under regulation 28 of the same Regulations that the decision was taken "wholly or partly in reliance on information which in his opinion should not be made public … in the interests of national security". The appeal was subject to the SIAC procedural rules provided for by the Special Immigration Appeals Commission Act 1997 and contained in the Special Immigration Appeals Commission (Procedure) Rules 2003. It involved, in addition to an open procedure, a closed procedure from which ZZ and his legal representatives were excluded but in which his interests were protected by two special advocates. In the usual way, SIAC gave both an open judgment and a closed judgment.
7. SIAC made clear in its open judgment that its decision was based principally on closed material which had not been disclosed to ZZ or his representatives. Thus, the section on the facts in the open judgment started with the statement that "[l]ittle of the case against ZZ is contained in the first and second open statements" (para 16) and ended with this (at para 18):

"As will be apparent from the brief analysis of the open case against ZZ and of his response to it, neither really engages with the critical issues, which we have determined principally by reference to the closed material. If MB requirements [see Secretary of State for the Home Department v MB [2008] 1 AC 440] apply to these proceedings and they require that the gist of the case against ZZ is disclosed to him, they have not been fulfilled."

SIAC's conclusion, at para 21 of the open judgment, was in the following terms:

"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. For those reasons, this appeal is dismissed."

8. The rival contentions of the parties on the relevant aspect of the appeal against SIAC's decision were conveniently summarised at para 13 of the judgment of Maurice Kay LJ when the matter was first before this court. The appellant contended that he was entitled to an "effective remedy" pursuant to Article 47 of the Charter. This extended to an entitlement to disclosure of at least the gist of the closed material which was pivotal to the case against him in SIAC because, without such disclosure, his remedy in SIAC was simply not effective. He relied on domestic, Strasbourg and Luxembourg authority to support this approach to an effective remedy. On the other hand, the case for the Secretary of State was that Article 4(2) of the Treaty on European Union ("national security remains the sole responsibility of each Member State") and Article 346(1)(a) of the TFEU ("no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security"), read in conjunction with Article 6 of the Treaty on European Union ("the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties") and the corresponding provision in Article 51(2) of the Charter, had the effect that the appellant could not draw on Article 47 of the Charter to establish a right to disclosure of information which SIAC had found to be contrary to the interests of national security: the issue was one expressly reserved to Member States and was beyond the competence of the EU.
9. The court decided by a majority to make a reference to the CJEU on the issue to which those submissions were addressed. The order for reference contained a somewhat fuller summary of the parties' arguments and referred the following question for a preliminary ruling:

"Does the principle of effective judicial protection set out in Article 30(2) of Directive 2004/38, as interpreted in the light of Article 346(1)(a) of the Treaty on the Functioning of the European Union, require that a judicial body considering an appeal from a decision to exclude a European Union citizen from a Member State on grounds of public policy and public security under Chapter VI of Directive 2004/38 ensure that the European Union citizen concerned is informed of the essence of the grounds against him notwithstanding the fact that the authorities of the Member State and the relevant domestic court, after consideration of the totality of the evidence against the European Union citizen relied upon by the authorities of the Member State, conclude that the disclosure of the essence of the grounds against him would be contrary to the interests of national security?"

The judgment of the CJEU

10. The judgment of the CJEU has to be read as a whole, but I will pick out here what appear to me to be the most important parts of the reasoning.
11. At para 48 the court refers to the requirement in Article 30(2) of the Directive to inform the person concerned "precisely and in full of the public policy, public security or public health grounds on which the decision in question is based". It then turns to the qualifying words "unless this is contrary to the interests of State security":

"49. It is only by way of derogation that Article 30(2) of Directive 2004/38 permits the Member States to limit the information sent to the person concerned in the interests of State security. As a derogation from the rule set out in the preceding paragraph of the present judgment, this provision must be interpreted strictly, but without depriving it of its effectiveness.

50. It is in that context that it must be determined whether and to what extent Articles 30(2) and 31 of Directive 2004/38, the provisions of which must be interpreted in a manner which complies with the requirements flowing from Article 47 of the Charter, permit the grounds of a decision taken under Article 27 of the directive not to be disclosed precisely and in full.

51. It is to be borne in mind that interpretation in compliance with those requirements must take account of the significance, as resulting from the system applied by the Charter as a whole, of the fundamental right guaranteed by Article 47 thereof. In particular, it should be taken into account that, whilst Article 52(1) of the Charter admittedly allows limitations on the exercise of the rights enshrined by the Charter, it nevertheless lays down that any limitation must in particular respect the essence of the fundamental right in question and requires, in addition, that, subject to the principle of proportionality, the limitation must be necessary and genuinely meet objectives of general interest recognised by the European Union.

52. Therefore, the interpretation of Articles 30(2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, cannot have the effect of failing to meet the level of protection that is guaranteed in the manner described in the preceding paragraph of the present judgment."

12. The court refers next to its settled case-law that "if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based" (para 53). It acknowledges that "it may prove necessary … not to disclose certain information to the person concerned, in particular in the light of overriding considerations connected with State security" (para 54). It states that, as regards judicial proceedings, "the parties to a case must have the right to examine all the documents or observations submitted to the court for the purpose of influencing its decision, and to comment on them" (para 55) and that "[t]he fundamental right to an effective legal remedy would be infringed if a judicial decision were founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views" (para 56). Again, however, it acknowledges the possibility of derogation from those disclosure requirements for reasons of national security:

"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 under Article 27 of Directive 2004/38, 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 under Article 27 of Directive 2004/38 and, second, to prescribe techniques and rules relating to that review, as referred to in the preceding paragraph of the present judgment.

59. In the context of the judicial review, provided for in Article 31 of Directive 2004/38, of the legality of the decision taken under Article 27 thereof, it is incumbent upon the Member States to lay down rules enabling the court entrusted with review of the decision's legality to examine both all the grounds and the related evidence on the basis of which the decision was taken."

13. The court then considers 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 national security, stating that "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" (para 60). It says at paras 61-62 that the burden of proving, in accordance with national procedural rules, that national security would in fact be compromised lies on the competent national authority, and that the national court with jurisdiction must carry out an independent examination of all the matters of law and fact relied upon by the competent national authority. At para 63 it deals with the position if the court concludes that national security does not stand in the way of "precise and full disclosure to the person concerned of the grounds on which a decision … is based".
14. In a passage of central importance, the judgment turns to the position if the national court concludes that State security does stand in the way of precise and full disclosure of the grounds:

"64. On the other hand, if it turns out that State security does stand in the way of disclosure of the grounds to the person concerned, judicial review, as provided for in Article 31(1) of Directive 2004/38, of the legality of a decision taken under Article 27 thereof must, having regard to what has been stated in paragraphs 51, 52 and 57 of the present judgment, be carried out in a procedure which strikes an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary.

65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is 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. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under Article 27 of Directive 2004/38 is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided in Article 31 of that directive ineffective.

66. Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the Member State concerned – upon which the conclusion set out in the preceding paragraph of the present judgment is founded – is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise State security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.

67. In that context, the national court with jurisdiction has the task of assessing whether and to what extent the restrictions on the rights of the defence arising in particular from a failure to disclose the evidence and the precise and full grounds on which the decision taken under Article 27 of Directive 2004/38 is based are such as to affect the evidential value of the confidential evidence.

68. Accordingly, it is incumbent upon the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him."

15. The judgment then draws on the foregoing to formulate an answer to the question referred for a preliminary ruling:

"69. In the light of the foregoing considerations, the answer to the question referred is that 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."

The wording of para 69 is repeated in the formal ruling of the CJEU at the end of the judgment.

The meaning of the judgment

16. For the appellant, Mr Southey QC submitted that the CJEU's judgment requires the national court to balance the interests of the State against the interests of the individual in determining whether and to what extent there should be anything less than precise and full disclosure of grounds and evidence where national security is invoked; but that there is in any event a core minimum level of disclosure, in that the matters to be disclosed at the end of the balancing exercise cannot be less than the essence (or gist) of the grounds on which the decision was based. In support of that submission, he took us through the background to the judgment, the detail of the judgment itself and related case-law in the national, Luxembourg and Strasbourg courts, placing particular weight on the decision of the Strasbourg court in A v United Kingdom (2009) 49 EHRR 29. He submitted that SIAC's approach to disclosure in the present case did not comply with the principles laid down by the CJEU and that the case must be remitted to SIAC to start again from scratch applying those principles.
17. For the Secretary of State, Mr Eicke QC submitted that the essence of the CJEU's judgment is that in circumstances such as this there must be in place a national court that has proper oversight of the decision to exclude a person on grounds of national security and, in particular, that is furnished with the procedural armoury to ensure that the person is provided with as much information as possible as to the reasons for his exclusion (including scrutiny of evidence that the national authority seeks not to disclose to the person in order to determine whether some, all or none of it should be disclosed either in raw form or in the form of a gist). The procedural guidance given by the CJEU is closely modelled on and is consistent with SIAC's procedures. Disclosure of the essence of the grounds always has to take account of the confidentiality of the evidence, so that if disclosure of the essence of the grounds would undermine the confidentiality of the evidence it is not, as a matter of EU law, necessary to make the disclosure. Thus, submitted Mr Eicke, the CJEU has not imported into this context the standard identified by the Strasbourg court in A v United Kingdom. Article 47 of the Charter, which the CJEU was here interpreting, requires no more and no less than article 6 ECHR; but, as the case-law shows, article 6 does not require the A v United Kingdom standard to be applied in all contexts.
18. Although the submissions of both counsel took us into related fields, it seems to me that the resolution of the issue before us depends on a straightforward reading of the CJEU's judgment. In my view that judgment lays down with reasonable clarity that the essence of the grounds on which the decision was based must always be disclosed to the person concerned. That is a minimum requirement which cannot yield to the demands of national security. Nor is there anything particularly surprising about such a result in the context of restrictions on the fundamental rights of free movement and residence of Union citizens under EU law.
19. The existence of a minimum level of procedural protection for the person concerned is signalled by the court at an early stage of its analysis. The court spells out at paras 51-52 that Article 47 of the Charter confers a fundamental right to an effective remedy, that Article 52(1) of the Charter lays down that any limitation on the exercise of rights recognised by the Charter must respect "the essence" of the fundamental right in question, and that the interpretation of Article 30(2) and 31 of the Directive cannot have the effect of failing to meet the level of protection so guaranteed.
20. In the following paragraphs the court recognises that the requirements of national security may impose some limitations on the rights of the defence and in particular on the right to an effective remedy. At para 57 it states that where a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of the decision, the national court 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". There is no suggestion that the person's procedural rights may have to give way altogether to considerations of national security.
21. In then dealing with the need for effective judicial review and appropriate procedural rules, the court introduces for the first time, at para 59, a distinction between "the grounds" and "the related evidence" on the basis of which the decision was taken; and at para 60 it states that the national court must verify whether the considerations of national security invoked by the national authority stand in the way of precise and full disclosure of the grounds and of the related evidence. The distinction between the grounds and the related evidence is important for a correct understanding of the remainder of the judgment.
22. Para 64 provides that where national security does stand in the way of disclosure of the grounds, the procedure must be one which strikes an appropriate balance between the requirements flowing from national security and the requirements of the right to effective judicial protection. That leads into para 65, the most important single paragraph in the judgment. It first makes the general point that in the light of the need to comply with Article 47 of the Charter, the procedure "must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person … to put forward an effective defence". It then sets out what I take to be a minimum requirement, the entirety of which merits repetition

"In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under Article 27 of Directive 2004/38 is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided in Article 31 of that directive ineffective."

23. Mr Eicke conceded in his skeleton argument that para 65, if read alone, "might give the impression that the CJEU was suggesting that in all cases an individual must be furnished with the essential basis for his exclusion". But it goes beyond mere "suggestion". The last sentence of the paragraph is an unequivocal and unqualified statement that the person concerned must be informed in any event of the essence of the grounds on which the decision was based and that this cannot yield to the protection of national security. That minimum requirement follows naturally from the signals given in the earlier passages to which I have referred. Equally I do not accept Mr Eicke's further submission that when para 65 is read in the light of later passages of the judgment it can be seen to be subject to a material qualification.
24. It is important to recall that para 65 is concerned with disclosure of the grounds on which the decision was based. The judgment moves on to consider the question of disclosure of the related evidence. It states in para 66 that the weighing up of the right to effective judicial protection against the necessity to protect national security, on which the conclusion set out in para 65 is founded, "is not applicable in the same way to the evidence underlying the grounds". Thus, although the essence of the grounds must be disclosed, the related evidence may be withheld from disclosure for reasons of national security.
25. This leads the court to state in para 68 that the national court must "ensure that the person concerned is informed of the essence of the grounds … in a manner which takes due account of the necessary confidentiality of the evidence". That still makes clear that the essence of the grounds must be disclosed but provides that the manner of disclosure must take "due account" of the necessary confidentiality of the evidence, that is to say it must protect the confidentiality of evidence disclosure of which would be contrary to national security. The court does not state in terms what is to happen if the essence of the grounds cannot be disclosed without at the same time disclosing such confidential evidence. To my mind, however, the position in that event is clear from what the court does say: the essence of the grounds must still be disclosed. The qualifying words relate to the manner of disclosure of the essence of the grounds; they do not affect the extent to which the grounds must be disclosed.
26. The conclusion in para 69 and the formal ruling at the end of the judgment simply pick up what has gone before. For the reasons already given, the national court must ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which the decision was 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". Again, the minimum requirement is to inform him of the essence of the grounds; and whilst the manner in which that is done must take due account of the necessary confidentiality of the evidence, there is still no suggestion that the need to protect the confidentiality of the evidence is capable of justifying non-disclosure of the essence of the grounds.
27. My reading of the judgment is reinforced by consideration of the wording of the question referred for a preliminary ruling. That question asked whether the national court must ensure that the person concerned is informed of the essence of the grounds against him "notwithstanding the fact that the authorities of the member state and the relevant domestic court conclude that disclosure of the essence of the grounds against him would be contrary to the interests of national security" (see para 9 above). The CJEU's "in any event" language looks strongly like an affirmative answer to the substance of that question; and against the background of a question formulated in those terms I would have expected the court to use very different language if it had intended to rule that even the essence of the grounds need not be disclosed where such disclosure would be contrary to the interests of national security.
28. I have said nothing so far about the opinion of the Advocate General to which Mr Eicke made reference. That is because the Advocate General's key reasoning finds no reflection in the judgment of the court and cannot in my view be relied on as illuminating the court's conclusion. In particular, the Advocate General placed substantial reliance on Article 346(1)(a) of the TFEU, 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", expressing the view (at paras 78-79 of his opinion) that if that provision was not to be deprived of much of its effectiveness Article 30(2) of the Directive had to be interpreted in such a way as "to maintain the possibility of non-disclosure of the grounds of public security on which a decision to expel a Union citizen is based where even the mere disclosure of the main allegations against that Union citizen would be likely to prejudice State security". Similarly, in his conclusion (at para 115) he proposed that the question referred be answered in very different terms from those of the court, namely that Article 30(2) of the Directive, read in the light of Article 47 of the Charter and Article 346(1)(a) TFEU, "must be interpreted as permitting a Member State, in exceptional cases duly justified by the need to guarantee State security and subject to review by the national court, to prevent a Union citizen from being informed of the grounds of public security for a decision to expel him, whether in detail or in summary form …". Similar reliance had been placed on Article 346(1)(a) by the Secretary of State in the arguments that led to the reference for a preliminary ruling (see para 8 above) and, we are told, in the arguments before the CJEU itself. Yet the court refers to Article 346(1)(a) only at para 35 of its judgment, in the context of an argument on admissibility which it rejects. In dealing with the substance of the question referred it makes no reference to Article 346(1)(a) or to the Advocate General's analysis. There is, as it seems to me, an implicit rejection of the reasoning based on Article 346(1)(a).
29. Mr Southey sought to derive support for the appellant's interpretation of the CJEU's judgment from the Kadi proceedings, in particular from the judgment of the CJEU in Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, European Commission v United Kingdom ("Kadi (No.2)") which was handed down on 18 July 2013, a few weeks after the CJEU's judgment in the present case. The judgment in Kadi (No.2) makes extensive cross-reference to the principles set out in ZZ but does not deal with the specific question answered in ZZ (which did not arise on the facts of Kadi) and does not seem to me to cast any real light on the meaning of the court's answer to that question.
30. As already mentioned, Mr Southey also argued that the CJEU's judgment in the present case reflects the approach of the European Court of Human Rights in A v United Kingdom. That case concerned the compatibility of SIAC's procedures with article 5(4) of the European Convention on Human Rights in the context of a challenge to the lawfulness of detention under the Anti-Terrorism, Crime and Security Act 2001 on grounds of national security. The Grand Chamber stated at para 217 that in the circumstances of that case article 5(4) must import substantially the same fair trial guarantees as article 6(1) in its criminal aspect. It said at para 218 that against the background the court had described it was essential that as much information about the allegations and evidence against each applicant be disclosed as was possible without compromising national security or the safety of others, and that where full disclosure was not possible article 5(4) required that "the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him". At para 220 it said that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing, but that "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". It went on to refer to cases where, even where the underlying evidence remained undisclosed, "if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations". By contrast, it stated in the final sentence of para 220 that "[w]here, however, 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 art.5(4) would not be satisfied".
31. In Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28, [2010] 2 AC 269, Lord Phillips of Worth Matravers said at para 59 that he was satisfied that the essence of the Grand Chamber's decision in A v United Kingdom lay in para 220 and in particular in the last sentence of that paragraph; and at para 65 he said that the Grand Chamber "has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him".
32. Mr Southey's argument is that this approach has been carried through by the CJEU into the present case, even though the CJEU makes no mention of A v United Kingdom in its judgment (by contrast with the Advocate General, who goes to some lengths to distinguish it). I certainly accept that A v United Kingdom is consistent with my reading of the judgment in ZZ but I do not think that it can be relied on as providing positive support for that reading. That is not because of any material difference between the CJEU and the Strasbourg court in terms of basic approach in this general field: Lord Mance JSC observed in Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452, at para 23 that a national court faced with an issue of effective legal protection "can be confident that both European courts, Luxembourg and Strasbourg, will have the same values and will expect and accept similar procedures". The fact is, however, that the context of the two cases is very different. The present case concerns the application of Article 47 of the Charter in an immigration context where article 6 ECHR does not apply; but even where article 6 does apply, the extent to which non-disclosure of allegations or evidence may be justified on grounds of national security is heavily dependent on context. This point, too, was made in Tariq v Home Office, for example by Lord Dyson JSC at para 145:

"But it is clear from para 203 of A v United Kingdom itself that article 6 does not require a uniform approach to be adopted in all classes of case. In Kennedy v United Kingdom (2010) 52 EHRR 207 the ECtHR said that the entitlement to disclosure of relevant evidence is not an 'absolute right' (para 187); the character of the proceedings may justify dispensing with an oral hearing (para 188); and the extent to which the duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case: para 189 …."

33. Accordingly, although the approach laid down by the CJEU in ZZ is much the same as that laid down by the Strasbourg court in A v United Kingdom, the difference in context and the fact that the CJEU makes no mention of A v United Kingdom in its judgment lead me to the view that the CJEU's judgment should be interpreted independently of the decision in A v United Kingdom.
34. For much the same reasons I have gained no real assistance from the authorities cited to us by Mr Southey in relation to article 8 ECHR or from the various domestic and Strasbourg authorities relied on by Mr Eicke, including the actual decisions in Kennedy v United Kingdom and in Tariq v Home Office.

The effect of the judgment on the present appeal

35. If I am right about the meaning of the CJEU's judgment, I am satisfied that in the SIAC proceedings the appellant was not given the minimum level of disclosure that EU law requires.
36. SIAC's open judgment states in terms that if the requirements in Secretary of State for the Home Department v MB applied and required the gist of the case against ZZ to be disclosed to the appellant, they had not been fulfilled (see para 7 above). It is not necessary to consider the case of MB in any detail or Mr Southey's submission that the requirement to disclose the essence of the grounds involves a higher standard than that laid down in MB. It seems to me that the flavour of the point that SIAC had in mind in referring to MB is given by this passage in the judgment of Lord Bingham of Cornhill (at the end of para 34):

"I do not understand any of my noble and learned friends to have concluded that the requirements of procedural fairness under domestic law or under the Convention would be met if a person entitled to a fair hearing, in a situation where an adverse decision could have severe consequences, were denied such knowledge, in whatever form, of what was said against him as was necessary to enable him, with or without a special advocate, effectively to challenge or rebut the case against him."

37. In any event, it is clear from what it said about the failure to meet MB requirements or to meet a requirement to disclose the gist of the case that in SIAC's view the essence of the grounds relied on by the Secretary of State had not been disclosed to the appellant. SIAC was in an unrivalled position to form a view on that matter, being familiar from other contexts with disclosure of the essence or gist of a case and having considered the entirety of the material in the particular case. But we have also been able to form a view of our own. We have read SIAC's closed judgment as well as its open judgment and we heard short submissions from Mr Goudie as special advocate and from Mr Eicke on behalf of the Secretary of State in closed sessions at the hearing of the appeal. All that has served amply to confirm SIAC's view that the essence of the case against the appellant was not disclosed to him. It is sufficient to state that conclusion in this open judgment, without the need for any separate closed judgment on the appeal to this court.
38. Accordingly, I would allow the appeal and remit the case to SIAC for fresh determination, applying the principles in the CJEU's judgment.
39. For that purpose I do not think it necessary to elaborate on what is required by way of disclosure of "the essence" of the grounds. As I have said, the concept is one with which SIAC is familiar from other contexts. Its application is also highly fact-specific. It is right to note, however, that Mr Southey drew support from the finding of the CJEU in Kadi (No.2) (see para 29 above), at para 141, that the General Court had been correct to endorse Mr Kadi's argument that the allegation that he had been the owner in Albania of several firms which funnelled money to extremists or employed those extremists in positions where they controlled the funds of those firms "is insufficiently detailed and specific given that it contains no indication of the identity of the firms concerned, of when the alleged conduct took place and of the identity of the 'extremists' who allegedly benefited from that conduct".
40. On rehearing the case in accordance with the principles laid down in the CJEU, SIAC will also be able to consider two secondary arguments advanced by Mr Southey before us. One is that SIAC is required to conduct a balancing exercise between the interests of national security and the interests of the individual when considering the question of disclosure and that this requires a more flexible approach towards the application of SIAC's procedural rules than has historically been the case. The other is that when considering the weight to be attached to withheld material SIAC is required to take account of the difficulties caused to the appellant by the non-disclosure of that material. These points did not form part of the grounds of appeal against SIAC's decision and were not the subject of the question referred by this court to the CJEU, and in my view it is not necessary or appropriate for us to engage with them.

Lord Justice Christopher Clarke :

41. I agree. As my Lord observes the CJEU 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 in para 66 of the judgment it contemplates that in certain cases disclosure of the evidence is liable to compromise State security in a specific manner, it does not in the preceding paragraph consider the position if disclosure of the essence might have that effect, which appears to me a possible circumstance. Nevertheless for the reasons that he has given it seems to me that the court has laid down as an irreducible minimum ("in any event") that the essence of the grounds must be disclosed, and has done so notwithstanding the contrary opinion of the Advocate General.

Master of the Rolls :

42. I agree that this appeal should be allowed and the case remitted to SIAC for a fresh determination for the reasons given by Richards LJ.


 


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