Case C-300/11, ZZ v Secretary of State for the Home Department

Directive 2004/381 requires essence of reasons for decision refusing entry into Member State must be disclosed to person concerned, although a Member State may, so far as is strictly necessary, refuse to notify the person concerned for reasons of State security

>> This case concerned the question whether the principle of effective judicial protection must be interpreted as requiring a national court hearing an appeal of a Union citizen against a decision refusing entry taken to ensure that the essence of the public security grounds which constituted the basis of that decision was disclosed to the person concerned, where the competent national authority contends before that court that such disclosure was contrary to the interests of State security.

In the United Kingdom, administrative decisions refusing entry into national territory that were adopted on the basis of information whose disclosure would be liable to prejudice national security might be contested before the Special Immigration Appeals Commi
ssion or ‘SIAC’. In proceedings before SIAC, neither the person contesting the decision nor his own lawyers had access to the information upon which the decision was based. In such a case, a special advocate was assigned to the person concerned, who did have access to that information. The special advocate could not however communicate with the person concerned about matters connected with the proceedings once material which the Secretary of State objects to being disclosed had been served on to the special advocate. The special advocate might, however, request directions from SIAC authorising such communication.

ZZ, who had dual French and Algerian nationality, had been married since 1990 to a British national, with whom he had eight children. ZZ resided lawfully in the United Kingdom from 1990 to 2005. However, in August 2005, after he had left the United Kingdom, the Secretary of State cancelled his right of residence on the ground that his presence was not conducive to the public good. In September 2006 ZZ travelled to the United Kingdom, where a decision refusing him entry was taken by the Secretary of State. ZZ appealed to SIAC against the decision refusing entry. SIAC dismissed ZZ’s appeal, and gave a ‘closed judgment’ with exhaustive grounds and an ‘open judgment’ with summary grounds. Only the ‘open judgment’ was provided to ZZ. It was apparent from the ‘open judgment’ that SIAC was satisfied, for reasons explained in the ‘closed judgment’, that ZZ was involved in activities of the Armed Islamic Group (GIA) network and in terrorist activities in 1995 and 1996. In appeal, the Court of Appeal (England and Wales) asked the Court of Justice to what Articles 30(2) and 31 of Directive 2004/38, as well as 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.

The Court of Justice first of all noted that , that Article 30(1) of Directive 2004/38 provided, so far as concerned the requisite content of, and statement of reasons for, a decision taken under Article 27 of that directive, such as the decision refusing entry at issue in the main proceedings, that the person concerned must be notified of the decision in writing and in such a way that he was able to comprehend its content and the implicationsfor him. In addition, Article 30(2) provided that the person concerned must be informed, precisely and in full, of the public policy, public security or public health grounds which constituted the basis of such a decision, unless this was contrary to the interests of State security.

The Court furthermore reiterated that Article 31 of Directive 2004/38 obliged the Member States to lay down, in domestic law, the measures necessary to enable Union citizens and members of their families to have access to judicial and, where appropriate, administrative redress procedures to appeal against or seek review of any decision restricting their right to move and reside freely in the Member States on the grounds of public policy, public security or public health (see Case C-249/11 Byankov [2012]). In accordance with Article 31(3), the redress procedures must include an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure was based.

With regard to  Article 47 of the Charter, the Court held that whilst Article 52(1) of the Charter admittedly allowed limitations on the exercise of the rights enshrined by the Charter, it nevertheless laid down that any limitation must in particular respect the essence of the fundamental right in question and required, in addition, that, subject to the principle of proportionality, the limitation must be necessary and genuinely met objectives of general interest recognised by the European Union. The Court found that the interpretation of Articles 30(2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, could not have the effect of failing to meet the level of protection that was guaranteed in that manner.

The Court reiterated that, for the judicial review guaranteed by Article 47 of the Charter to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him was based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there was any point in his applying to the court with jurisdiction, and in order to put the latter fully in a position in which it might carry out the review of the lawfulness of the national decision in question (see Joined Cases C‑372/09 and C-373/09 Peñarroja Fa [2011]; Case C-430/10 Gaydarov [2011]; and Case 222/86 Heylens and Others [1987]).

The Court admitted that it might prove necessary, both in administrative proceedings and in judicial proceedings, not to disclose certain information to the person concerned, in particular in the light of overriding considerations connected with State security (see also: Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008], on which I wrote this post).

The Court stressed that 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 (Case C-450/06 Varec [2008]; and Case C-472/11 Banif Plus Bank [2013]; see also, as regards Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the judgment of the European Court of Human Rights in Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262).

The Court held that the 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, had not had an opportunity to examine and on which they have therefore been unable to state their views. (Case C-89/08 P Commission v Ireland and Others [2009]).

The Court, however, found that if, in exceptional cases, a national authority opposed precise and full disclosure to the person concerned of the grounds which constituted 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 accommodated, 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.

The Court held that it was for the competent national authority to provide, in accordance with the national procedural rules, that State security would in fact be compromised by precise and full disclosure to the person concerned of the grounds which constituted the basis of a decision taken under Article 27 of Directive 2004/38 and of the related evidence (see Case C-284/05 Commission v Finland [2009]). The Court thus stressed that there was no presumption that the reasons invoked by a national authority existed and were valid.

The Court concluded that it was for the national court with jurisdiction

  • to carry out an independent examination of all the matters of law and fact relied upon by the competent national authority 
  • to determine, in accordance with the national procedural rules, whether State security stood in the way of such disclosure, 
  • to ensure that the person concerned was informed of the essence of the grounds which constituted the basis of the decision in question in a manner which took due account of the necessary confidentiality of the evidence; and
  • to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.