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European Court of Justice grapples with secret evidence in UK immigration case

ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment

The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).

Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.

Mr ZZ’s challenge to his exclusion was dealt with by SIAC using closed material proceedings. SIAC upheld, on the basis of secret evidence, the Home Secretary’s decision to exclude him from the UK. This meant that an EU citizen was refused entry to the UK on the basis of evidence that that citizen had not seen. EU law on free movement allows Member States to exclude EU citizens on national security grounds but requires that when doing so due process rights are upheld. On appeal Mr ZZ argued that SIAC was in violation of due process rights in EU law and so the Court of Appeal referred the matter to the European Court of Justice.

The importance of due process

The European Court of Justice’s judgment provides guidance for the Court of Appeal. As a preliminary point the Court makes clear that state security is no grounds for ignoring due process rights, or indeed for ignoring EU law. An effort by the Italian government to have the Court rule the case inadmissible because it dealt with state security failed. ‘State security’, the Court noted, ‘cannot result in European Union law being inapplicable’. Indeed, a significant part of the judgment is given over to a confirmation of the importance of due process and the rights of those subject to immigration proceedings.

The Court also gives a clear signal that any limitation of free movement rights, and due process rights, on security grounds must be kept to what is strictly necessary – always respecting ‘the essence of the fundamental right’ and the principle of proportionality. The Court notes that regardless of the security context, the person subject to proceedings must be given ‘the essence of the grounds on which a decision refusing entry… is based’.

Despite the Court of Justice’s strong statement on the disclosure of the grounds for a decision, it is more circumspect in relation to the disclosure of the evidence that supports those grounds. The Court notes that disclosure of evidence may prejudice security by exposing particular persons involved in operations or by revealing the methods those operations use. The Court rules that it is for the national court (in this case SIAC and then the Court of Appeal) to strike an appropriate balance in relation to disclosure of evidence.

The principal difficulty with the Court’s judgment arises when applying this distinction between grounds and evidence in practice. SIAC’s open judgment in Mr ZZ’s case claims that he was involved in terrorist activities linked to the Armed Islamic Group network in 1995 and 1996. The judgment suggests that SIAC accepts certain evidence that Mr ZZ has brought forward to explain his activities and in particular stays in Italy and Belgium and contact with certain persons.

However, SIAC did not accept all of Mr ZZ’s explanations, on grounds it only made clear in the closed judgment. Herein lies the problem. It may be impossible to disclose certain grounds without revealing the supporting evidence. If one of the grounds, for example, is that Mr ZZ met with a certain person in a private place then it may suggest that the person is a confidential informant, or that the building is under surveillance, or that Mr ZZ’s communications are subject to interception. The line between grounds and evidence is a very thin – and sometimes non-existent – one. If the Court believes that due process requires disclosure of grounds then disclosure of evidence may be unavoidable.

Argument over secret evidence heating up

Mr ZZ’s case returns to the Court of Appeal for final resolution. However, for the European Court of Justice the struggle with secret evidence is only beginning. Its decision in this case follows several decisions, and Opinions of its Advocates General, in other cases that raises the question. This litigation has, by and large, dealt with asset-freezes used against those under suspicion of supporting terrorism. In a case concerning the blacklisting of the People’s Mujahedin Organisation of Iran (PMOI), an Iranian opposition group, Advocate General Sharpston suggested that the EU consider a UK-style special advocate system. The European Court of Justice did not address the matter in its judgment. In his recent Opinion in the case of Mr Kadi Advocate General Bot suggested that the Courts afford much discretion to EU institutions in making blacklisting decisions. The Court of Justice has yet to rule in Mr Kadi’s case, but he, like the PMOI, is no longer blacklisted by the EU or the UK.

Of course, neither PMOI nor Mr Kadi ever had the benefit of a special advocate system. In this respect the system for sanctions offers even less due process than SIAC does. However, the expansion of the EU’s role in relation to security matters, and the influence of the Charter of Fundamental Rights over the Member States, suggest that it will not be able to avoid the matter for long. If the Court wishes to adapt its own procedures then it will have to amend its Rules of Procedure – a process which requires the Member State governments, acting as the Council of the EU, to approve (see here for more). Although Britain’s Justice and Security Act has become law, the argument over open justice in the EU is only beginning.