England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2016

MR JUSTICE OUSELEY :

1. The Claimant, MR, challenges by judicial review two decisions of the SSHD, one taken in March 2015, and the other upon review in July 2015, whereby she decided to cancel his British passport. She did so using the powers of the Royal Prerogative. She concluded that it was not in the public interest for him to hold it. Her reasons were:

"You are a British national who is involved in terrorism- related activity. It is assessed that you are likely to travel overseas in future to engage in terrorism-related activity. You were deported from Bulgaria to the UK on national security grounds in November 2014. It is assessed that these activities would present a risk to the national security of the United Kingdom. You are therefore considered a person whose past, present or proposed activities, actual or suspected, are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest."

2. MR contends that it was an abuse of power for the SSHD to purport to use the Royal Prerogative for that purpose, when Parliament, through the Terrorism Prevention and Investigation Measures Act 2011, had provided specific powers, procedures and safeguards by which passports could be removed, among other measures to prevent terrorist-related activity. MR also contends that her action breached the free movement and establishment rights of MR as an EU citizen, to be found in various Articles of the Treaty on the Functioning of the EU, spelt out in the Citizens' Directive 2004/38/EC, and in the Charter of Fundamental Rights, CFR. MR's third ground is that the SSHD has provided him with insufficient information about the basis upon which she cancelled his passport. He also denies participation in any terrorist-related activity. The Claimant says that he wishes to travel to other Member States for the purpose of establishing a business.
3. On 24 March 2016, Cranston J made a declaration by consent under s6(2) of the Justice and Security Act 2013. This requires a hearing for the purpose of deciding whether to permit the SSHD to withhold certain material from the Claimant. The scope of that hearing has been varied by the Order of Blake J dated 27 May 2016. Before dealing with conventional disclosure issues, I have to decide whether the cancellation of the passport engaged the provisions of the Citizens' Directive in such a way as to require disclosure by reference to the principles in Case C-300/11 ZZ (France) v SSHD [2013] QB 1136 CJEU, as interpreted by the Court of Appeal in ZZ (France) v SSHD (No.2) [2014] EWCA Civ 7, [2014] QB 820.
4. Mr Eadie QC for the SSHD submitted that the cancellation restricted but did not legally prohibit MR from travelling abroad. It was in a different category and context from that which was dealt with in ZZ, and no disclosure was required at all for this category of case; or some lesser degree might suffice. He had at one time appeared to submit that the Directive was not engaged at all since cancellation of the passport created a restriction and hindrance but no prohibition on travel to the rest of the EU, but that was not the essence of his argument as it developed.
5. His second contention was that the requirements for disclosure in ZZ were not the same as those derived from SSHD v AF (No. 3) [2010] 2 AC 269, in relation to Article 6 ECHR. I do not propose to deal with that at this stage. I have already heard submissions on most of the contentious disclosure points and the issue has not so far arisen as a live point. If it does when, at a later date, the remaining issues have to be decided, which I intend to be before the end of July, I will deal with it then.

The Citizens Directive and disclosure

6. The Directive's recitals provide that citizens of the Union have a primary and individual right to move and reside freely within the territory of the Member States; the free movement of persons is one of the fundamental freedoms of the EU. Article 4(1) provides that all Union citizens "with a valid identity card or passport …shall have the right to leave the territory of a Member State to travel to another Member State." Article 4(3) provides that "Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality."
7. Article 27 is at the heart of the argument. It is in Chapter VI, and provides in (1) and (2):

"1. Subject to the provisions of this Chapter, 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. These grounds shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."

8. Also relevant are Articles 30 and 31. The former requires that decisions under Article 27 shall be notified in writing, and by Article 30(2):

"2. 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."

9. Article 31 requires the persons concerned to have access to judicial redress procedures.
10. I need to mention Article 47 of the CFR, avowedly modelled on Article 6 ECHR: it requires an effective remedy before a tribunal for everyone whose EU law rights are violated, and provides for the entitlement to a fair and public hearing by an independent and impartial tribunal.
11. The principles of how these provisions work in relation to disclosure of material which is affected by national security arguments, where Article 27 is engaged, has been considered by the CJEU in ZZ in 2013, above. Mr Eadie put some emphasis on the nature of the case. An EU citizen, a dual French-Algerian national, who had been lawfully resident in the UK for 15 years up to 2005, and had a right of permanent residence here, was refused re-admission on his return from a visit to Algeria, and was deported from the UK on the grounds of national security pursuant to Article 27. SIAC upheld the SSHD's decision on appeal to it. But little of the case had been disclosed to him. The CJEU judgment starting point is in [49-50]:

"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."

12. The CJEU requires a court to consider whether national security would be damaged by the disclosure of the full and precise grounds for the decision and the related evidence. To the extent that a court rules that disclosure would not harm national security, the competent national authority must disclose the material. The competent authority can still refuse to disclose it but must defend its decision only on the grounds and evidence disclosed; [63]. To the extent that disclosure would harm national security, an appropriate balance must be struck between the two competing interests.
13. The crucial paragraphs are then [64-69], and bearing in mind the emphasis in Mr Eadie's submission on the relevance of the context of the decision:

"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 for 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.

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."

14. There was a dispute about what ZZ had decided which required the decision of the Court of Appeal given in ZZ (No.2), above, in 2014. ZZ argued that a core minimum level of disclosure was required even though that might involve the disclosure of material harmful to national security. The SSHD argued that no harmful disclosure was required. The Court rejected her submissions. The essence of the grounds had to be disclosed. The evidence might be withheld, but the essence of the grounds still had to be disclosed, [25]:

"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."

Engagement/breach of Directive 2004/38

15. As I have said, Mr Eadie did not really pursue what had at one time been the SSHD's primary argument, that the cancellation of the passport did not engage the rights under Articles 4 and 27 of the Directive. It is obvious that they do. There is no relevant distinction between "engaging" and "breaching" here. Unless justified within the terms of the Directive, the cancellation of the passport breaches it.
16. After all, the avowed aim of the cancellation was to make it very difficult for MR to travel abroad, and it is clear that it would have that effect. Although an identity card or other means of proving nationality can be used, the UK does not issue identity cards for the purpose of proving nationality; and a UK citizen relying on other means of proving nationality than a passport will encounter difficulties in air and Eurostar travel, as Mr Chamberlain QC for the Claimant demonstrated by his researches on the internet for what airlines and Eurostar required. Case C-215/03 Oulane v The Netherlands Minister for Aliens and Integration [2005] QB 1055 ECJ, at [22-28], which affirms that where nationality can be proved unequivocally by means other than a passport or identity card it has to be recognised for the purposes of Directive 2004/38, also points out that the requirement for a passport or valid identity card is aimed at simplifying the resolution of problems relating to the right of residence for citizens and national authorities, and at establishing a maximum which Member States can require.
17. The language of the Directive is not confined to barring a legal prohibition on departure from the country of nationality, unless the derogation in Article 27 is made out. The right is to reside and move freely. There is an obligation to issue a passport to nationals but it may be "restricted"; Article 27. It is restriction and not only prohibition which engages the derogation in Article 27. Some CJEU authorities refer to "prohibition" but that is because that is the nature of the restriction with which it was dealing; the Court was not confining "restriction" to "prohibition".
18. As Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165 stated in [37], national measures "liable to hinder or make less attractive the exercise of fundamental freedoms" had to meet four conditions. I am not concerned with the conditions as such since they are, at least so far as material, spelt out in the Directive, but rather with the expression of the scope of the freedom: it is not just not to be prohibited, it is not to be hindered or made less attractive. A striking illustration of extent of the limitation on hindering or making less attractive is to be found in Case C-152/05 Re Property Tax Subsidies: Commission of the EC v Germany [2008] 2 CMLR 5. After the 2^nd Chamber pointed out that preventing or deterring a national of a Member State from leaving his country to exercise his right to freedom of movement was an obstacle to that freedom, and that national measures which hindered or made that right less attractive to exercise required the justification of a public interest, it concluded that the absence of a subsidy for the building of a home in a Member State other than Germany, the purpose of which was to satisfy the demand for housing, interfered with the freedom of movement, because it made it less attractive for Germans to build a house in another Member State.
19. Article 4(3), referring to the issue of passports "acting in accordance with their laws", does not assist Mr Eadie. It cannot enable Member States to derogate from the rights in the Directive. It governs the way in which the passport is issued, including the way in which the entitlement to a passport is proved.

The role of context

20. Mr Eadie's main submission was that the application of ZZ was context specific. The context in that case was the deportation and exclusion of a person, lawfully resident for 15 years. The context in this case, was the cancellation of a passport, which did not affect his right to live in the UK with his family, nor, although deliberately making it more difficult for him to leave the UK, did it make it an offence for him to do so. There was no legal prohibition. The mere engagement of an EU right did not bring ZZ into play. There was a spectrum of contexts, the gravity of which affected the extent of disclosure. The disclosure obligations here could not be the same as in ZZ; something more attenuated would suffice. In reality, no disclosure should be ordered which would risk harm to national security.
21. The role of context could be seen in the opening words of [50] of ZZ before the CJEU. That was considered in Kiani v SSHD [2015] EWCA Civ, [2016] QB 595, the context of which was the withdrawal from an immigration officer of his security clearance, and consequent dismissal, without reasons. He alleged discrimination on the grounds of race and religion, and unfair dismissal. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 permitted a closed hearing, from which the claimant was excluded, but a special advocate was present. The Court of Appeal upheld the EAT's ruling that EU law did not require that the gist of the case always had to be disclosed in order to enforce rights under Article 47 CFR, if doing so would harm national security. In discussing ZZ, the Court of Appeal pointed out that it related to Articles 30 and 31 of Directive 2004/38. At [28], Lord Dyson MR pointed out that it was "in that context", that the decision on disclosure had been made. He returned to those words at [35] in rejecting the submission that there was always a core minimum of relevant information about the secret material which had to be disclosed. ZZ had not enunciated a universal principle of European law "which applied in the same way regardless of context." Two contextual features were the express provision for a derogation in Article 30, and that that derogation had to be strictly construed. If it had intended that the context specific application of the ECHR by the Strasbourg Court to Article 6 ECHR should not to apply to European Union law in Article 47 CFR, the Luxembourg Court would surely have said so. He continued, [36]: "The entire discussion by the court was directed to the question of what information a person affected by a decision under article 27 of Directive 2004/38 is entitled to have by reason of articles 30 (2) and 31." Lord Dyson specifically agreed with what Langstaff J had said in the EAT, accepting that ZZ related to its particular context "that of restriction on the fundamental rights of free movement and residence of Union citizens under European law and did not indicate the adoption of a more demanding standard in all contexts."
22. This decision in its turn was considered by the Court of Appeal in Bank Mellat v HM Treasury [2015] EWCA Civ 1052, [2016] 1 WLR 1187. A Financial Restriction Order had been made in respect of all Iranian banks as part of the regime of sanctions against Iran. The Order contained various severely restrictive provisions. There was provision for a closed hearing. The Court approached the question of disclosure of the evidence to Bank Mellat under Article 6 ECHR on the basis that there was no material difference in approach between EU law and the ECHR in this respect. It accepted at [14] that Article 6 ECHR disclosure depended on context and all the circumstances of the case.
23. The circumstances of SSHD v AF (No.3) [2009] UKHL 28, [2010] 2 AC 269, a non-derogating Control Order case involving nonetheless significant restrictions, required a higher standard of disclosure than those in Tariq v Home Office [2011] UKSC 35, [2012] AC 452, an employment-related security vetting case, not involving the liberty of the subject, where he had some information, there was real scope for the issue of discrimination to be tested without obtaining his instructions, and Strasbourg jurisprudence established that someone subject to security vetting in his employment was not entitled to information which would jeopardise the vetting regime itself. That was the context of Tariq, as summarised by Lord Dyson in Kiani at [23]. It is clear that it went beyond treating context and circumstance as characterising a case simply by topic or type, and involved circumstances specific to the case. No disclosure of material which would create a risk to national security was required in Tariq, but it was in Bank Mellat and AF (No.3) so that the banks and AF could respond to the essence of the allegations against them. The impact of the relevant Orders on the banks and AF were equiparated; [25]. They were very different from the impact of the decisions being challenged by the employees in Tariq and Kiani.
24. Mr Eadie is right that context affects the disclosure required. That is why the disclosure required in Tariq and Kiani differed from that required in Bank Mellat and AF (No.3). They differed not just because of the degree of restrictions but because of the procedures available or not to protect the subject of the order, and the extent to which such restrictions were imposed or part of the background in which employment was accepted and undertaken. I would also accept that the effect of exclusion on ZZ was, at least on the face of it, much more severe than the effect of the cancellation of MR's passport.
25. However, the first question is what is the scope of "that context" in ZZ. In [50] and [67] of the CJEU decision in ZZ "that context", and "this connection" in [65], the context and connection is an act which interferes with the citizen's freedom to leave the territory of one state to travel to another Member State, and which is justified by the Member State on the grounds within Article 27, and to which Article 30(2) applies. There is nothing in that decision which suggests that it only applies to restrictions or prohibitions which are at the more severe end of the spectrum, or that it is even an open question whether a different approach might be appropriate in some less severe cases; see the very general language of [69] in relation to Article 27. On that basis, the decision of the Court of Appeal in Kiani on what the CJEU meant in ZZ does not suggest that the context in ZZ was somehow narrower than that. As I read it, it adopted the approach which I have set out. On that basis, the essence of the allegations has to be provided.
26. This is not an issue to be resolved however only by close textual analysis of "this" and "that", since the issue Mr Eadie raised was not specifically before the CJEU nor the Court of Appeal; and the Court of Appeal in Kiani, commenting on Tariq at [23], did suggest that the context could vary with the circumstances specific to the individual case, leading to different result in cases with the same context. The issue to which this debate goes is the test to be applied to disclosure. The purpose of Mr Eadie's submission as to the significance of context was to identify scope for no disclosure obligation or a disclosure obligation which could lie between nothing and the essence or gist of the allegations. He suggested that this could mean "some ability to have some idea" of the allegations, rather than nothing, perhaps a hint or a pointer. Thus the degree of impact generated by the impugned decisions would affect the degree of disclosure. I can understand "no disclosure" harmful to national security. But that approach would not be consistent with ZZ and Kiani. I can understand, difficult though it may be to apply in many cases, disclosure of "the essence of the allegations" or their "gist", which may or may not have different shades of meaning capable of practical application in the context of disclosure. But what seems to me to be without practical utility as a test for disclosure is giving some idea, or a hint or a pointer.
27. In my judgment, the fact that disclosure would be reduced to such a test, very difficult in application, capable of doing harm to national security without achieving any adequate fairness, shows that the suggested spectrum of actions to which Article 27 applies and the related spectrum of disclosure cannot be right. No such test has ever been enunciated in any of the cases concerned with national security disclosure. To my mind, accepting though I do that there is a spectrum of decisions which may involve Article 27, there is no spectrum of disclosure. It is the essence of the allegations which must be disclosed, despite harm to national security, neither more nor less. There is no scope in the light of ZZ and Kiani for holding that there should be no disclosure which risked national security.
28. Save for the outstanding matters, the disclosure so far ordered satisfies that test.