ZZ v Secretary of State for the Home Department (Rev 1) [2011] EWCA Civ 440

[2011] EWCA Civ 440

Case No T2/2008/1997

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS

COMMISSION (Mr Justice Mitting)

Ref No: SC63/2007

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19/04/2011

Before

LORD JUSTICE MAURICE KAY, (Vice President of the Court of Appeal, Civil Division)

LORD JUSTICE CARNWATH

LORD JUSTICE MOSES

Between

ZZAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr Hugh Southey QC and Mr Simon Cox (instructed by Fisher Meredith LLP) for Appellant

Mr Tim Eicke QC and Mr David Craig (instructed by Treasury Solicitor) for Respondent

Mr Mohammed Khamisa QC and Mr Martin Goudie (instructed by the Special Advocates Support Office) appeared as Special Advocates

Hearing Hearing dates : 28 February and 1 March 2011

Judgment

[1]The appellant has dual Algerian and French nationality. He has been married to a British citizen since 1990. They have eight children. They lived as a family in this country until August 2005. He had progressed from “leave to remain” status to being granted a United Kingdom EEA residence permit which was issued to him on 25 March 2004, valid for five years, although his application for naturalisation as a British citizen had been rejected on national security grounds on 20 January 1999. However, he was granted indefinite leave to remain on 4 August 1999. On or about 19 August 2005 he travelled to Algeria. Six days later the Secretary of State decided to cancel the indefinite leave to remain and to exclude him from the United Kingdom on the ground that his presence was not conducive to the public good for reasons of national security. On 18 September 2006, he arrived at Heathrow from Algiers bearing a French passport. He was refused admission pursuant to regulation 19(1) of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) on the basis that his exclusion was justified on grounds of public security. He was immediately returned to Algeria. Thus, he has not lived in the United Kingdom for many years. We are told that he is presently in France.

[2]The refusal of admission on 19 September 2006 gave rise to a right of appeal which the appellant duly exercised. The Secretary of State certified the refusal pursuant to regulation 28 of the 2006 Regulations, whereupon the appeal was directed to the Special Immigration Appeals Commission (SIAC). For reasons given in open and closed judgments dated 30 July 2008, SIAC dismissed the appeal. The appellant now appeals to this Court pursuant to section 7 of the Special Immigration Appeals Commission Act 1997.

[3]The question at the heart of this appeal is whether, by reason of his French nationality, the appellant enjoys procedural rights which, if he were only an Algerian citizen, would not arise. His position falls for consideration under three legal regimes. Under domestic law, the appeal to SIAC is governed by the 1997 Act and the Special Immigration Appeals Commission (Procedure) Rules 2003. The appellant has had the benefit of all that he is entitled to under domestic law. Secondly, there is

Article 6 of the European Convention on Human Rights

and Fundamental Freedoms (ECHR). However, this provides the appellant with no procedural protection because, as the Grand Chamber of the Strasbourg Court said in Maaouia v France

(2001) 33 EHRR 1037

(at paragraph 40):

“… 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.

[4]The third legal regime is that of the European Union. The case for the appellant is that it provides for procedural protection to the extent of entitling him to disclosure of at least the gist of the closed national security case against him so that the special advocates in SIAC, when seeking to protect his interest in the closed hearing, have his instructions on the closed allegations sufficiently to be able to refute them. In this way, his French nationality would provide him with a form of protection for which his Algerian nationality would not qualify him. His case on EU law is put on two alternative bases:(1) entitlement to disclosure; and

(2) protection against discrimination. As regards the latter, the discrimination is said to reside in the different protection afforded to him, a French citizen, as compared with a British citizen who is the subject of control order proceedings.

[5]Although this invocation of EU law is the main issue arising on this appeal, there are further grounds relating to the standard of proof and the reasoning of SIAC to which I shall return later.

[1]EU law (1). Procedural fairness and disclosure

[6]It is first necessary to set out the European legislative provisions upon which this issue turns. They include provisions not only on free movement but also on the distribution of legislative competence between the institutions of the EU and those of Member States.

[7]In the Treaty on European Union (TEU), the following provisions are relevant:

“Article 3.2 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. Article 4 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. Article 5 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. Article 6.1 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:

“Article 21.1 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. Article 346.1 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 …”

Article 4 Article 5 Article 6.1 Article 346.1 (a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security …”

Article 346.1

[8]The Charter of Fundamental Rights of the European Union (the Charter) includes the following provisions:

“Article 47 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 … Article 51.2 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.”

Article 51.2

[9]As a person with French nationality, the appellant’s right of free movement is dealt with in Directive 2004/38/EC (the Citizens’ Directive). By Article 27.1, Member States may restrict the freedom of movement and residence of EU citizens, irrespective of nationality “on grounds of public policy, public security or public health.”

[10]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 … The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society …” (Article 27.2)

[11]Article 28 makes further provision in relation to “protection against expulsion”. It does so on the basis of criteria which give enhanced protection to those with long residence in the host country. At all material times, the appellant has been treated as being entitled to the highest category, being those who have resided in the host Member State for the previous 10 years, who may only be expelled “if the decision is based on imperative grounds of public security, as defined by Member States.” (Article 28.3)

[12]Finally, Article 30.1 entitles the person concerned to be notified in writing of any decision taken under Article 27 “in such a way that they are able to comprehend its content and the implications for them” and, by Article 30.2:

“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.”

[13]In simplified form, the rival contentions of the parties are as follows. The appellant contends that, although he has had all that the SIAC procedure entitles him to in domestic law and he can claim no further protection pursuant to

Article 6 of the ECHR

, he is entitled to an “effective remedy” pursuant to Article 47 of the Charter. This extends to an entitlement to disclosure of at least the gist of the closed material which was pivotal in the case against him in SIAC because, without such disclosure, his remedy in SIAC is simply not effective. He relies on domestic, Strasbourg and Luxembourg authority to support this approach to an effective remedy. The case for the Secretary of State is that Article 4.2 of TEU (“national security remains the sole responsibility of each Member State”) and Article 346(1)(a) of TFEU (“no Member State shall be obliged to supply information the disclosure of which it considers is contrary to the essential interests of its security”), read in conjunction with Article 6 of TEU (“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, have the effect that the appellant cannot draw on Article 47 of the Charter to establish a right to disclosure of information which SIAC has found to be contrary to the interests of national security. The issue is one expressly reserved to Member States and is beyond the competence of the EU.

[14]This fundamental issue is not the subject of recent authority, either in the domestic courts or in the Court of Justice. However, it was foreshadowed in R v Secretary of State for the Home Department, ex parte Adams [1995] All ER (EC) 177, which was concerned with Article 8a(1) of the EC Treaty as it then was (the predecessor of Article 21 of TFEU). This was, of course, long before the Charter. Mr Gerry Adams, who had both United Kingdom and Irish nationality, sought to rely on Treaty rights as a citizen of the Union to challenge an exclusion order that had been made against him pursuant to section 5 of the Prevention of Terrorism (Temporary Provisions) Act 1989. The order prohibited him from entering Great Britain. At that time, the equivalent of Article 346 of TFEU was Article 223 of the EC Treaty. One of the submissions made on his behalf was that it is a principle of EU law that fundamental rights derived from the Treaty must be protected by an effective means of resort to judicial review and that, without disclosure of the reasons for the making of the exclusion order, the right to apply for judicial review was ineffective. Giving the judgment of the Divisional Court, Steyn LJ accepted that submission up to a point but added:

“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.

[15]Since Adams there have been developments in the surrounding legal landscape. On behalf of ZZ, Mr Hugh Southey QC submits that they call for a different analysis and a different conclusion. He seeks to rely in particular on Article 47 of the Charter and the Kadi litigation in the ECJ: Kadi v Council of the European Union

[2009] 1 AC 1225

and Kadi v European Commission (judgment of 30 September 2010, which we have only in transcript form). I shall refer to them as Kadi No 1 and Kadi No 2.

Article 47 of the Charter

[16]It is important to keep in mind what the Charter is and what it is not. The first time it was mentioned by the ECJ was in European Parliament v Council

[2006] ECR I-5769

, at paragraph 38 where its principal aim was described as being to reaffirm rights resulting from constitutional traditions and international obligations common to the Member States, the Treaties, the ECHR, the Social Charters and the case law of the ECJ and the Strasbourg Court (see Preamble). At that time the ECJ described it as “not a legally binding instrument” (ibid). However, Article 6 of TEU provides that the Union “recognises the rights, freedoms and principles” set out in the Charter “which shall have the same value as the Treaties”. On the other hand, its provisions “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.

[17]It follows that the potential of Article 47 as a legal peg upon which the appellant might hang his claim to procedural fairness derived from EU law has to be assessed by reference to the allocation of competences by the Treaties. This leads back to Article 4.2 of the TEU, which requires the Union to “respect … State functions ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security”. Mr Southey focuses on the word “respect”, suggesting that it bears a less than forceful interpretation. However, it is immediately followed by these unequivocal words:

“In particular, national security remains the sole responsibility of each Member State.”

[18]This, coupled with the “rule” set out in Article 346 of TFEU – “no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security” – leads me to the conclusion that the appellant cannot rely on Article 47 of the Charter as giving rise to a right to the disclosure of the gist of the closed case against him. This conclusion is fortified by Article 51.1 of the Charter which makes it clear that the provisions of the Charter are addressed to Member States “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.

[19]Since the present case was before SIAC, a submission similar to the one advanced to us by Mr Southey was advanced to SIAC in MI v Secretary of State for the Home Department, SC/101/2010. It was rejected. Mitting J said (at paragraph 5):

“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.

[20]None of this is to say that EU citizens are unprotected by EU law in this area. Substantive protection is provided by the Treaties and by the Citizens’ Directive. A person in the position of the appellant is only susceptible to an adverse decision on “imperative grounds of public security, as defined by Member States” (Article 28.3) and access to judicial redress is guaranteed by Article 31. In this jurisdiction that is provided by an appeal to SIAC. However, procedural detail is a matter for Member States. Structurally, the position is akin to that described by the Luxembourg Court in Impact v Minister for Agriculture and Food

[2008] 2 CMLR 47

(at paragraph 44):

“… 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.”

[21]Whilst there is a general right to an effective remedy, it has to be seen, in present circumstances, in the context of Article 346 of TFEU. It cannot have been the intention to acknowledge that national security remains the sole responsibility of each Member State (TEU Article 4.2) but at the same time to require the disclosure of information which the Secretary of State and SIAC consider to be undisclosable for national security reasons. In deportation and exclusion cases, the SIAC procedure has been given a clean bill of health: see RB (Algeria) v Secretary of State for the Home Department

[2010] 2 AC 110

, especially per Lord Hope at paragraphs 226-233, and W (Algeria) v Secretary of State for the Home Department

[2010] EWCA Civ 898

. There is no inconsistency in logic or policy in maintaining this position in relation to deportation and exclusion notwithstanding its non-application in circumstances where

Article 6 of the ECHR

applies, such as with control orders (Secretary of State for the Home Department v AF (No3)

[2010] 2 AC 269

) or a civil action alleging race or religious discrimination (Tariq v Home Office)

[2010] ICR 1034

[22]So far, I have not said anything about the Kadi cases upon which Mr Southey seeks to place strong reliance. His submission is that, taken together, and taking account of the fact that in Kadi No2 the Court expressly adopted the Strasbourg decision in A v United Kingdom

(2009) 49 EHRR 29

, they support the proposition that a procedure which does not permit even the gist of a crucial allegation to be disclosed falls foul of the requirement of EU law that a judicial remedy be effective. The primary response of Mr Eicke, on behalf of the Secretary of State, is that the Kadi cases are not concerned with the obligations of Member States under the Treaties or with deportation. Their concern is with the obligation of procedural fairness imposed on the institutions of the EU, in particular when taking measures pursuant to resolutions of the United Nations Security Council. At first I was sceptical about this submission because I do not recall it having been advanced by counsel appearing for the Secretary of State in Tariq (above). However, on reflection, I now think that it is correct. Kadi No1 was an action against the Council. Kadi No2 was an action against the Commission. The essential complaint in both was about the absence of adequate procedural protection either at the first (Security Council) stage or at the level of the EU Council and Commission prior to the imposition of financial or commercial sanctions. The judgment in Kadi No1 is replete with repeated references to “Community acts” (see paragraphs 284-305, in particular). Kadi No2, whilst it draws on A v United Kingdom, is equally concerned with the role of the Luxembourg Court in relation to Community acts in circumstances where “the applicant’s rights of defence have been ‘observed’ only in the most formal and superficial sense” (paragraph 171). In other words, the Court was concerned to fill a serious protection gap in relation to “Community acts”. Its concern was not with the act of a Member State, let alone the act of a Member State in respect of which the State has “sole responsibility” under the TEU. To apply the Kadi cases to a decision of a Member State on an issue of deportation or exclusion on national security grounds would, in my judgment, be contrary to principle.

[23]For all these reasons, I take the view that the SIAC procedures as enacted by Parliament and applied in this case are not susceptible to challenge on the ground of procedural unfairness. However, Carnwath LJ and Moses LJ consider the contrary to be reasonably arguable and propose a reference to the Luxembourg Court, which, accordingly, should follow.

[24]There was a closed ground of appeal but Mr Khamisa QC accepted that its success depended on the appellant succeeding on the ground I have rejected. In the circumstances, it is unnecessary for there to be a closed judgment. (2). Discrimination

[25]This ground of appeal is based on Article 24(1) of the Citizens’ Directive which provides:

“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.”

[26]In Adoui and another v Belgian State

[1982] 3 CMLR 631

, in the context of Directive 64/221, the Court of

Justice said (at paragraph 8):

“… 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.”

[27]It is upon these foundations that Mr Southey seeks to construct a submission that the appellant has been subjected to an unlawfully discriminatory denial of procedural fairness. The submission is that in relation to a United Kingdom national the relevant “repressive measure” would be a non-derogating control order which could only be justified following disclosure or gisting in accordance with AF(No.3). The denial of equivalent disclosure or gisting to the appellant in the circumstances of the present case is said to be a breach of the obligation of equal treatment pursuant to Article 24.

[28]This submission was given short shrift by SIAC, Mitting J saying (at paragraph 15):

“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 [1997] 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.”

The two situations are indeed in no way comparable.”

[29]For these reasons, this ground of appeal has no legal or factual basis. Its comparative matrix is fundamentally flawed.

[2]The standard of proof

[30]The complaint here is that SIAC applied an incorrect standard of proof. Mr Southey submits that it was for SIAC to be satisfied to the criminal standard. SIAC rejected his submission. Mitting J said (at paragraph 12):

“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 [2006] ECR 1-1097 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

[2003] 1 AC 153

, to which I shall return. ‘(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 [2006] ECR 1-1097 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’.

[31]Mr Southey seeks to advance his submission by reference to Gough v Chief Constable of the Derbyshire Constabulary

[2002] QB 1213

. The issue there was the standard of proof in relation to banning orders made under the Football Spectators Act 1989. Again, the submissions took place within the context of Treaty rights in relation to free movement. In giving the judgment of the court, Lord Phillips of Worth Matravers MR said (at paragraph 86) that “as a starting point a banning order should only be imposed where there are strong grounds for concluding that the individual subject to the order has a propensity for taking part in football hooliganism”. He said (paragraph 89) that the proceedings that led to the imposition of banning orders were civil in character but that (paragraph 90-91):

“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 [2001] 1 WLR 340, 354 and R (McCann) v Crown Court at Manchester [2001] 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”.

[32]As SIAC observed, Gough relates to a different statutory regime. It does not relate to national security in the sense of the present context. It is in these circumstances that I return to Rehman. The case concerned the approach of SIAC to “conducive to the public good” deportations. Lord Slynn said (at paragraph 22):

“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.

[33]This, it seems to me, is the correct approach in the present context. A person in the position of the appellant is protected by the requirement in the Citizens’ Directive that there be “imperative grounds of public security”. The evaluation by SIAC must satisfy that exacting test. For these reasons, I do not consider that it is appropriate to transplant the criminal standard of proof.

[34]As it happens, this is something of a sterile debate in the present case. Although SIAC applied the civil standard of the balance of probabilities in relation to its findings in the open judgment, Mitting J said (at paragraph 13):

“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.”

[35]Although there has been some debate about the correct interpretation of that passage, it seems to me that it makes clear that the criminal standard was applied to “some of the essential questions of fact in the closed judgment”, and that, in the circumstances, the dismissal of the appellant’s appeal by SIAC could not be said to be vitiated by a material error of law even if we were to hold that the incorrect standard of proof was applied in the open judgment.

[3]Reasons

[36]This ground of appeal is at least partly linked to the complaint about the standard of proof. It is submitted that, although SIAC acknowledged the appellant’s family circumstances and the requirement of “imperative grounds of public security”, it failed to make express findings regarding the level of risk or failed to provide reasons which supported a finding of that level of risk.

[37]I consider this ground of appeal to be utterly unsustainable. Mitting J said (at paragraph 19-21):

“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 … ”

[38]This ground of appeal is not adopted or supported by the Special Advocates who, of course, have seen the closed judgment, as have we. It is abundantly clear that, read together, the two judgments contain findings of fact and reasoning easily sufficient to support the conclusion of SIAC.

Reference to Luxembourg

[39]I return to the question of a reference pursuant to Article 267. I have already indicated that, in view of the judgments of Carnwath and Moses LJJ, I am content that there should be a reference of the question identified at the end of the judgment of Carnwath LJ. In view of the passage of time and the hardship being endured by the family, I agree that it would be wrong for the reference to be delayed by possible proceedings in the Supreme Court. Mr Southey also seeks a reference on the issues of discrimination and the standard of proof but I am satisfied that neither calls for one.

[40]I gratefully adopt Maurice Kay LJ’s exposition of the relevant facts and law. Save on the issue of procedural fairness and disclosure, I agree with his reasoning and his conclusions. On that issue, however, I am unable to agree that the position is “acte clair”. I would direct a reference to the CJEU at this stage to avoid any further unnecessary delay.

[41]I can state my reasons relatively shortly. Maurice Kay LJ has set out the relevant provisions of the European law which make it clear that in general European competence, even after the Lisbon Treaty, does not extend to issues of national security. I agree with him that there is nothing in the Charter of Fundamental Rights to extend that competence. However, as I see it, this case is concerned more specifically with provisions of the Citizens Directive (Directive 2004/38/EC).

[42]It is not in dispute that that the Directive applies to the appellant, as someone who had lived lawfully in this Country for many years, and who had been married to a British citizen since 1990. It was also accepted by the judge, and is not in dispute before us, that his time in this Country combined with his family circumstances entitled him to the highest level of protection under the Directive. As the judge put it (para 7):- “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…”

[43]It is worth highlighting those circumstances which led to that view. Under the heading “Proportionality” (para 19) the judge described the family circumstances:- “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.

[44]In the context of the Directive the provision principally relied on by the Secretary of State is article 30(2), dealing with the notification of reasons for a decision. That 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 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.”

[45]The issue, as I see it, is not whether the security exception under article 30(2) applies, but how far it goes. Does it justify depriving an appellant of even such minimal information about the case against him, as in other analogous contexts has to be held essential for any form of hearing worth the name?

[46]Article 30 itself is part of a series of provisions governing the right of free movement and the exceptions to it. The “general principles” set out in article 27 include the requirement that measures taken on the grounds of public security “shall comply with the principle of proportionality”. Article 31 sets out procedural safeguards, which require access to judicial and administrative redress procedures to seek review of decisions, including those taken on grounds of public security. Those procedures - “… 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)

[47]In the context of control orders, there is now authoritative guidance from the European Court of Human Rights, (A v United Kingdom

(2009) 49 EHRR 29

), endorsed by the House of Lords (Secretary of State v AF(No 3)

[2010] 2 AC 269

), as to the minimum necessary for a fair hearing. It is sufficient to quote what the Grand Chamber said, in a passage cited by the House of Lords: “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, adversarialhearing 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) He concluded: “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).

[48]By analogy, Mr Southey does not claim that his client is entitled to the full details of the case against him, but he does submit that he is entitled to know the essence (or “gist”) of the allegations as was found to be essential in those cases.

[49]It seems clear now that the same principle applies in the jurisprudence of the CJEU, at least where the institutions of the European Union are involved. Such a case was Kadi 2 (judgment of 30 September 2010), to which Maurice Kay LJ has referred. The case concerned the freezing of a person’s funds as a result of inclusion in a United Nations list relating to persons understood to be associated with Al Qaeda network. Intimation had been provided to the applicant and his legal representatives to the effect that he satisfied the standard for listing because:

“of his actions in participating in the financing, planning, facilitating, preparing or perpetrating of acts or activities by….AlQaeda….”

. 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.

[50]I agree that for the reasons given by Maurice Kay LJ none of these judgments provides direct authority for the present case. However, the Citizens Directive provides strong procedural safeguards to ensure the proportionality of decisions even when taken in the interests of public security. Against that background, it would seem surprising if the formal distinctions between the types of proceedings were sufficient to deprive someone apparently within the protection of the Directive of disclosure regarded as the irreducible minimum in other contexts. To avoid that result, it is in my view at least arguable that article 30(2) should be read as depriving persons concerned of the right to “precise and full” information about the decision against them, but not necessarily of the essence or gist. Mitting J held in clear terms that if disclosure of the gist was required, it was not done. That view has not been challenged.

[51]The arguments in this case disclose a tension between two fundamental principles: first that of national security, which is outside the competence of the European institutions, secondly that of basic procedural fairness. I do not find the solution straightforward. In my view it raises an issue of European law on which the decision of the CJEU is required. Having regard to the distressing family circumstances which the judge outlined, as well as to other cases which are likely to be affected by this issue, I see no benefit in delaying a reference until the case reaches, if it does, the final domestic level.

[52]Accordingly, subject to further submissions of the precise form of the reference, I would adopt the question proposed by Mr Southey: “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?”.

[53]I agree that this court should make a reference to the CJEU. The essential question is whether an EU citizen may derive from Directive 2004/38/EC (the Citizenship Directive) a procedural right to be told the gist of the grounds on which another Member State refuses entry in the interests of national security. I do not consider that that question is acte clair.

[54]The question is not the subject of any direct authority. Apart from its importance to ZZ and his family, its significance requires no emphasis. It concerns the fundamental right of citizens of the Union to move and reside freely within the territory of the Member States (recital 1 of the Citizenship Directive and Article 5), a right to be protected to a high level by procedural safeguards specified in detail (recital 25 and Articles 30 and 31). It raises a vital question as to the limit of Union competences conferred by the Treaties.

[55]Maurice Kay LJ accepts that EU citizens are not unprotected by EU law (Judgment [20]). But he concludes that the effect of TEU Article 4.2 and Article 346 of TFEU is that it is outwith the competence of the Treaties to question the refusal of the Secretary of State and SIAC to disclose even the gist of information for national security reasons. Since it is recognised that some protection is given to EU citizens, even those refused entry on grounds of national security, there does not seem to me to be any clear-cut solution to be derived from an easily recognisable boundary between that which is within the limits of the competences conferred and that which is not.

[56]The final clause of Article 30.2 (qualifying the right to information if it would be contrary to the interests of State security) may reflect Article 346.1 TFEU. But Articles 30 and 31 of the Citizenship Directive purport to guarantee to EU citizens effective judicial protection. Although the Kadi cases concern the obligations of procedural fairness imposed on EU institutions, it is reasonably arguable that they illustrate that which judicial protection requires to be effective. If it is recognised that the limits of the competences conferred are no complete answer to the question, a problem arises as to the extent to which a Member State can rely upon the qualification to the right to be informed under Article 30.2. It is, after all, one thing to refuse to disclose details of the evidence, “precisely and in full”, quite another to refuse to disclose the gist.

[57]Neither ex parte Adams nor Impact provide, as it seems to me, a sufficiently firm foundation for concluding that this important question is beyond any reasonable doubt or that there would be no divergence in judicial view throughout the Union. Accordingly, I too would refer a preliminary question as suggested by Carnwath LJ.