AZ (Syria) v Secretary of State for the Home Department [2017] EWCA Civ 35

Case No T3/2016/0278[2017] EWCA Civ 35
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2015] EWHC 3695 (ADMIN)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE NICOL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/01/2017
Before
LORD JUSTICE JACKSONLORD JUSTICE UNDERHILLLORD JUSTICE BURNETT
Between
AZ (Syria)AppellantSecretary of State for the Home DepartmentRespondent
Hugh Southey QC & Edward Grieves (instructed by Wilson Solicitors LLP) for AppellantJames Eadie QC & Julian Blake (instructed by Government Legal Department) for RespondentHearing Hearing date: 29th November 2016
Judgment

Article 30 Notification of decisions

[1]The appellant (“AZ”) is a Syrian national who was recognised as a refugee in the United Kingdom on 3 August 2012. He applied a few weeks later to the Secretary of State for a Convention Travel Document, which is a reference to the 1951 Refugee Convention (“the Geneva Convention”), but it was refused on grounds of national security. He has challenged that refusal in judicial review proceedings. This is his appeal from the order of Nicol J dismissing the claim for judicial review on procedural grounds said to arise by virtue of EU law. Substantive grounds of challenge remain to be heard at first instance. The issues before us are:(i) Whether AZ is entitled in the course of the litigation to the essence of the grounds upon which the Secretary of State relied by virtue of article 47 of the Charter of Fundamental Rights of the European Union (“the Charter”) and the decision of the Luxembourg Court in ZZ (France) v Secretary of State for the Home Department (C-300/11) [2013] QB 1136; [2013] 3 CMLR 40;(ii) Whether AZ was entitled by virtue of EU law to the same level of information in advance of the decision being taken;(iii) Whether this court should refer the question of his entitlement to disclosure to the Luxembourg Court.

The Facts

[2]AZ’s claim for asylum was considered routinely by a regional office of the United Kingdom Border Agency before any national security concerns had become apparent. The application for a travel document was made by letter dated 24 August 2012. AZ stated that he wished to travel to Jordan where his father lived. His father was ill and awaiting surgery. AZ wished to be with him and then help him recuperate. The matter was not dealt with expeditiously. It was considered in March 2013 at which time it became apparent to the officials concerned that there may be a national security dimension. In the meantime, both AZ’s Member of Parliament and the solicitors then acting for him made further representations. On 11 December 2013 the Home Office wrote to AZ stating in bland terms that his application had “been refused on national security grounds.” The decision had been made by an official. This prompted a pre-action letter of 30 December 2013 which sought a reversal of the decision and disclosure of any documents relied upon by the Home Office in coming to the decision. A response from the Treasury Solicitor in early January 2014 asserted that there were compelling reasons of national security to justify the decision (reflecting the language of the relevant international and EU instruments) and fleshed out the reasons:
“Our client assesses that [AZ] is an Islamic extremist, and that granting him a travel document would increase the risk to UK national security.”
It added that further disclosure would be prejudicial to the interests of national security.[3]Judicial review proceedings were first issued in the Upper Tribunal in March 2014 but, for reasons of jurisdictional competence, were reissued in the Administrative Court on 10 November 2014. The Home Office wrote to AZ on 14 January 2015 in the following terms:
“Following a recent review of your case I am now able to provide you with further open reasons for the refusal: You have been refused a travel document on the basis that it is assessed that granting a travel document would increase the risk to UK national security. You are assessed to hold Islamic extremist views and have expressed a desire to travel to Syria to engage in fighting. In light of this information you may wish to consider making representations to the Home Office so that your application can be reconsidered.”
[4]AZ submitted further representations on 20 March 2015. He told the Home Office that his father was now in Sweden. In April, AZ sent medical evidence that his father had cancer and was terminally ill. On 8 May the Home Office granted a Convention Travel Document restricted to Sweden and valid until early 2016. A Convention Travel Document, whether restricted or unrestricted, does not relieve its holder from satisfying entry requirements, including visas, for any country to which he wishes to travel. But EU countries allow visits without a visa to refugees who hold a Convention Travel Document granted by another Member State. AZ was unable to use this document before his father died. But he did travel to Sweden twice to attend his funeral and to sort out his father’s affairs.[5]The decision to refuse a general travel document was reconsidered in the light of representations made by AZ. It was confirmed personally by the Secretary of State in June 2015. Her decision was notified to AZ on 26 June.[6]In the meantime, the litigation proceeded. The Secretary of State successfully applied pursuant to section 6 of the Justice and Security Act 2013 (“the 2013 Act”) for a declaration which permitted a closed material procedure. Special advocates have been appointed, they have been provided with all the closed material upon which the Secretary of State relied, but have confirmed that they have no submissions to make on whether any of it should be disclosed to AZ, or otherwise summarised or provided to him in the form of a gist. It is the responsibility of the judge in the proceedings to decide that question for himself. The scheme of the 2013 Act and ancillary rules of court requires maximum disclosure to the litigant consistent with the protection of national security interests and thus for it to be available for use in the open proceedings. Special advocates are expected to seek maximum disclosure into the open proceedings. Whilst, in due course, a judge will formally determine the matter it is a striking fact that the special advocates do not consider that they can argue for further disclosure in the face of the material that they have seen and the arguments against disclosure on national security grounds advanced by the Secretary of State.[7]On 30 April 2015, Lang J directed that there be a rolled-up hearing for permission on the procedural grounds that AZ wished to advance. That came before Nicol J on 12 November 2015. He handed down his judgment on 18 December. The issues boiled down to the first two I have identified. The judge gave permission to apply for judicial review on the first ground, namely whether AZ was entitled to “ZZ disclosure” in the course of the litigation but dismissed the claim on that ground. He refused permission on the other ground, namely whether AZ was entitled to disclosure before the decision was first made. He considered the argument advanced by Mr Southey QC, who appeared then as now for the appellant, that the court should refer the questions to the Luxembourg Court but, for multiple reasons, declined to accede to it. We are invited to reach the opposite conclusion on the first ground; grant permission on the second and determine that issue in favour of the appellant; or, in the alternative, refer the matter to Luxembourg.

The Legal Framework

[8]The underlying international provisions relating to a Convention Travel Document are found in the Geneva Convention. Article 28 provides that a State, which has recognised a person as a refugee, must issue travel documents for the purpose of travel outside its territory “unless compelling reasons of national security or public order otherwise require”. A schedule deals with the nuts and bolts. There are no procedural requirements prescribed. Article 32 is concerned with the expulsion of a refugee lawfully in the territory. It uses the same phrase, not in relation to the grounds of expulsion themselves, but to procedural safeguards afforded to the refugee:
“1. The contracting states shall not expel a refugee lawfully in their territory, save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. …”
[9]Council Directive 2004/83/EC (“the Qualification Directive”) was concerned with a common policy of asylum and subsidiary protection which established the Common European Asylum System. The arguments were developed by reference to this directive. It was superseded by Council Directive 2011/95/EU with effect from 21 December 2013, but the material provisions were unaltered. Article 25 concerned travel documents and provided:
“1. Member States shall issue to beneficiaries of refugee status travel documents in the form set out in the Schedule to the Geneva Convention for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require.”
This provision, and so article 28 of the Geneva Convention, is reflected in Rule 344A(i) of the Immigration Rules:
“After having received a complete application for a travel document, the Secretary of State will issue to a person granted asylum in the United Kingdom and their family members travel documents, in the form set out in the Schedule to the Geneva Convention, for the purpose of travel outside the United Kingdom, unless compelling reasons of national security or public order otherwise require.”
[10]Article 18 of the Charter guarantees the right to asylum with due respect for the rules of the Geneva Convention.[11]The Qualification Directive contained no explicit procedural protections for those denied a Convention Travel Document. Neither did Council Directive 2005/85/EC (“the Procedures Directive”) which governed minimum standards on procedures for granting and withdrawing refugee status. It has been superseded by Council Directive 2013/32/EU. That position contrasts with Directive 2004/38/EC (“the Citizenship Directive”) on the rights of citizens of the EU and their families to move and reside freely within the EU. This was the directive in issue in the ZZ case. Its context was that “the free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers”, (recital 2). It enables Member States to expel citizens of the EU in limited circumstances founded in public health, public policy and public security: see article 27(1). Article 28, 30 and 31 provide:
“Article 28 Protection against expulsion 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on the territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host member state for the previous ten years; or (b) are a minor, except if the expulsion in necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. (a) have resided in the host member state for the previous ten years; or (b) are a minor, except if the expulsion in necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. Article 30 Notification of decisions 1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and its implications for them. 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 was based, unless this is contrary to the interests of state security. 3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal … Article 31 Procedural safeguards 1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on grounds of public policy, public security or public health. 2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except - where the expulsion decision is based on a previous judicial decision; or - where the persons concerned have had previous access to judicial review; or - where the expulsion decision is based upon imperative grounds of public security under Article 28(3). 3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid out in Article 28. 4. Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, expect where his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.”
Article 29, which I have not set out, in concerned with the nature of the public health threat needed to justify expulsion.[12]In the ZZ case, the Luxembourg Court interpreted these provisions of the Citizenship Directive in the light of article 47 of the Charter which provides:
“Right to an effective remedy and to a fair trial Everyone whose rights or 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 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. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”
[13]In support of his claim for disclosure before the decision was made, AZ relies upon article 41 of the Charter:
“Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. That right includes: (a)The right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) The right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) The obligation of the administration to give reasons for its decisions. 3 … 4 …”
The Charter contains a number of general provisions, including article 52, which provides: 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter which are based on the Community treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by the Treaties. 3. In so far as the Charter contains rights which correspond to rights guaranteed by [the ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” (a)The right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) The right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) The obligation of the administration to give reasons for its decisions.

Issue 1: Disclosure in the litigation

[14]Mr Southey submits that the entitlement to a Convention Travel Document is a matter of EU law. Whilst the Qualification Directive enables Members States to withhold such a document on compelling grounds of national security, AZ’s challenge to the decision in these judicial review proceedings is subject to the fair trial guarantees of article 47 of the Charter. Unlike the parallel fair trial rights guaranteed by article 6 of the European Convention on Human Rights (“the ECHR”), article 47 applies to immigration decisions. Despite the objections to disclosure of further detail in his case resting on grounds of national security, there is an irreducible minimum of disclosure to which he is entitled even if national security is thereby imperilled. He accepts that there is no uniform standard of disclosure in challenges relying on EU rights. Nonetheless, Mr Southey submits that the standard required by the Luxembourg Court in the ZZ case sets the correct standard in a challenge refusing a Convention Travel Document. That is because the right to such a document, deriving from the Geneva Convention and conferred by EU law, ranks with the right of EU citizens to free movement within the Union. The standard required in ZZ, which concerned the denial of free movement rights to an EU national, was that: “the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry … is based, as the necessary protection of state security cannot have the effect of denying the person concerned the right to be heard and, therefore, of rendering his right of redress as provided for by article 31 of that Directive ineffective.” (paragraph 65)[15]The question whether the grounds provided to AZ (namely, he holds Islamic extremist views and has expressed a desire to travel to Syria to engage in fighting) satisfy the test identified in ZZ was not decided by Nicol J. It is not a matter for decision before us, although Mr Southey trailed some of his arguments to the effect that they do not. For my part, I would wish to make clear that it is far from self-evident that they do not satisfy the strictures of ZZ disclosure.[16]Mr Eadie QC, for the Secretary of State, accepts that the grant of a Convention Travel Document is governed by the Qualification Directive, and thus EU law and also that article 47 of the Charter provides fair trial guarantees, despite the subject matter of the litigation being in the field of immigration. To that extent the protection provided by article 47 is wider than article 6 ECHR, which has no application to immigration decisions. That said, he submits that the standards of both article 47 and article 6 ECHR (which march in step) are recognised by the Luxembourg Court, the Strasbourg Court and in domestic case law as being intensely context specific. The context of this case, namely the issue of a Convention Travel Document, is far removed from that of free movement of EU Citizens, one of the founding freedoms of the EU. The same standard of disclosure is not required. The outline provided to AZ of the grounds for refusal coupled with the additional procedural protection afforded by the closed material procedure with full involvement of the special advocates satisfies article 47 of the Charter. He submits that a further important consideration is that the Citizenship Directive conferred procedural rights which contemplated “precise and full disclosure of the grounds” for an adverse decision as the starting point.[17]The judge accepted the broad thrust of the Secretary of State’s argument. His reasoning may be distilled to the following conclusions:(i) The Luxembourg Court has itself recognised in European Commission v Kadi (C-584/10P) [2014] 1 CMLR 24 that the question whether the rights guaranteed by article 47 of the Charter have been infringed depends upon a broad consideration of circumstances, including the nature of the act in question, the context of its adoption and the legal rules which govern it (paragraph 53).(ii) The decision to refuse a Convention Travel Document is “simply not in the same league as interference with free movement rights” of a citizen of the EU, one of its founding principles. That attracts explicit procedural rights to precise and full disclosure of the grounds, a contrast with the decision under review to which the Court of Appeal attached significance in Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776; [2016] QB 595 (paragraph 54).(iii) There is no analogy between issuing a Convention Travel Document and making a control order, the subject matter of article 6 ECHR rights in Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28 [2010] 2 AC 269; or the freezing of assets, the subject matter of the Kadi case;or shutting down a bank’s business, the subject matter of Bank Mellat v HM Treasury [2015] EWCA Civ 1052 [2016] 1 WLR 1187. It is not comparable with severe restrictions on liberty (paragraph 55).(iv) The Qualification Directive also governs the right of a refugee to a residence permit, including its revocation. Article 24 permits revocation for “compelling reasons of national security or public order”. In HT v Land Baden-Wurttemberg (C-373/13) [2016] 1 WLR 109, the Luxembourg Court observed that the consequences of revoking a residence permit were less onerous that revoking refugee status or of refoulement. The latter steps required “serious reasons” to be demonstrated. Therefore, “compelling reasons” required less by way of justification. The judge concluded that “it is dangerous to assume that the adjective ‘compelling’ means it must be interpreted particularly seriously”. Taken together, the provisions relating to the grant/revocation of a residence permit and the grant of a Convention Travel Document are both to be considered as ranking below the rights which protect against revocation of the refugee status and refoulement (paragraph 56 and 57).(v) The Geneva Convention provides no procedural protections for the grant of a Convention Travel Document and neither does the Procedures Directive. By contrast, article 32(2) of the Geneva Convention requires “compelling reasons of national security” to justify denying a refugee the right to submit evidence and an appeal in connection with a decision to expel him. “That is a further pointer to the relative importance of this right among the package of rights which the Convention affords to refugees” (paragraph 58).[18]In my opinion, the judge was right to reject the case advanced by AZ on this ground essentially for the reasons he gave.[19]The ZZ case concerned a dual Algerian and French national who sought leave to enter the United Kingdom but was refused on grounds of national security. He had previously lived here. That decision interfered with his free movement rights as a citizen of the Union which derived from his French nationality. The decision was justified by the Secretary of State under article 27 of the Citizens Directive. ZZ appealed to the Special Immigration Appeals Commission (“SIAC”). The closed material procedure governing that tribunal was applied. The appeal was dismissed. SIAC concluded, having regard to both the open and closed material, that the Secretary of State had established “imperative grounds of public security” for refusing entry to ZZ. Little of the case had been disclosed to him. He appealed to the Court of Appeal on grounds which included that he had been denied procedural protections afforded by EU law. The Court of Appeal referred to the Luxembourg Court questions about the standard of disclosure required by the Citizen’s Directive and the Charter:
“Does the principle of effective judicial protection, set out in article 30(2) of Directive 2004/38, as interpreted in the light of article 346(1)(a) of the FEU Treaty, require that a judicial body considering an appeal from a decision to exclude a … Union citizen from a member state on grounds of public policy and public security under Chapter VI of Directive 2004/38 ensures that the …Union citizen concerned is informed of the essence of the grounds against him, notwithstanding the fact that the authorities of the member state and the relevant domestic court, after consideration of the totality of the evidence against the … Union citizen relied upon by the authorities of the member state, conclude that the disclosure of the essence of the grounds against him would be contrary to the interests of state security?”
Article 346(1)(a) of the FEU Treaty stipulates that “no member state shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security.” Advocate General Bot considered this treaty provision to be of importance in answering the question referred by the Court of Appeal. He concluded that if this provision were not to be emptied of content, the possibility of non-disclosure of even the essence of the grounds had to be recognised: see, in particular, paragraphs 78 and 79 of his Opinion. The Grand Chamber of the Luxembourg Court found it unnecessary to refer at all to this provision in its discussion of the relevant principles, or to the analysis of the Advocate General. It acknowledged the existence of the Treaty provision only in paragraph 35 of its judgment when rejecting an argument advanced by the Italian Government that the reference was inadmissible because matters of state security were solely for the Members States themselves. As Richards LJ observed when the ZZ case returned to the Court of Appeal, [2014] EWCA Civ 7; [2014] QB 820, at paragraph 28, there is an implicit rejection of the reasoning based upon article 346(1)(a). I would add respectfully that it is a pity that the courts of the Member States are left to guess the reasons why a treaty provision which appears to bear on the question should have been ignored by the court. Both Richards LJ, with whom Lord Dyson MR agreed, and Christopher Clarke LJ also pointed to the omission from the Luxembourg Court’s judgment of what should happen if the essence of the grounds cannot be disclosed without compromising national security. The logic of the court’s reasoning appears to suggest that the decision-maker will be prevented from deploying the full grounds and evidence for making the decision before the court of review unless he compromises national security by making additional disclosure.[20]In paragraph 50 of its judgment, the Luxembourg Court identified the issue as being whether and to what extent the provisions of articles 30(2) and 31 of the Citizenship Directive, interpreted in compliance with the requirements flowing from article 47 of the Charter, permit precise and full grounds not to be disclosed when the provisos relating to public policy etc. in the second part of article 30(2) are in play. That question was framed expressly “in the context” of what had gone immediately before in paragraph 49. In that paragraph the court noted that the second part of article 30(2) operated by way of derogation from the requirement to give full and precise details of the grounds. The derogation “must be interpreted strictly, but without depriving it of its effectiveness.” It continued by restating the significance of article 47 and the content of the rights it confers. In paragraph 57 it noted that if full and precise grounds were not provided, the court of the Member State must have at its disposal procedural tools which accommodate national security concerns and “sufficient compliance with the person’s procedural rights.” This is a recognition of the possibility of a closed material procedure, including the use of special advocates. Furthermore, decisions on non-disclosure of full and precise grounds must be taken by courts (paragraph 62). Its core reasoning followed in paragraphs 64 to 69:
“64 … 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 … 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.”
[21]The question whether the standard identified by the Luxembourg Court in the ZZ case applied to all decisions under challenge governed by EU law was considered by the Court of Appeal in the Kiani case. The claimant was an immigration officer whose security clearance was withdrawn. That resulted in his dismissal. He brought claims for race and religious discrimination in the Employment Tribunal where an order was made that in the interests of national security the claimant and his lawyers should be excluded from the closed parts of the hearing but with a special advocate appointed. The claimant’s objections on article 6 ECHR grounds were rejected by the judge. The Employment Appeal Tribunal dismissed his appeal holding that there was no absolute minimum disclosure required by EU law. The argument to the contrary had been advanced in the EAT relying principally upon article 47 of the Charter and the ZZ case, rather than ECHR jurisprudence.[22]In the Court of Appeal the first ground of appeal was that ZZ created a rule applicable to all cases arising under EU law. Lord Dyson MR, giving a judgment with which Richards and Lewison LJJ agreed, noted that article 52 of the Charter provided for the limitation of the rights it guaranteed to “meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”; and that in so far as the Charter contains rights which correspond to those of the ECHR their meaning and scope shall be the same. The Explanations relating to the Charter published on 13 December 2007 (OJ 2007 C303/02) indicate that article 47 of the Charter corresponds with article 6 ECHR but extends beyond disputes relating to “civil rights and obligations”, which is the scope of article 6. The Explanation continued that in all respects other than scope, the guarantees apply in the same way. In paragraph 18 Lord Dyson quoted from the judgment of Lord Mance in Tariq v Home Office [2011] UKSC 35 [2012] 1 AC 452 at paragraph 23:
“It is, however, clear from both Kadi cases that the Court of Justice will look for guidance to the jurisprudence of the European Court of Human Rights when deciding whether effective legal protection exists, and how any balance should be struck when a question arises whether civil procedures should be varied to reflect concerns relating to national security. A national court, faced with an issue of effective legal protection … can be confident that both European courts … will have the same values and will expect and accept similar procedures.”
[23]Lord Dyson reviewed the position first by reference to article 6 ECHR before concluding that the requirements of article 6 “depend on context and all the circumstances of the case.” He explained that the particular circumstances in Tariq’s casewhich had led to the conclusion that non-disclosure did not violate article 6 included that: “(i) It did not involve the liberty of the subject; (ii) the claimant had been provided with a degree of information as to the basis of the decision to withdraw his security vetting: he was not completely in the dark; (iii) there was real scope for the special advocate to test the issue of discrimination without obtaining instructions on the facts from the claimant; and (iv) this was a security vetting case and it was clearly established in the Strasbourg jurisprudence that an individual was not entitled to full article 6 rights if to accord him such rights would jeopardise the efficacy of the vetting regime itself.” (paragraph 23) In the Tariq case the disadvantage to the claimant of withholding secret material, even a gist of the underlying case, was outweighed by the paramount need to protect the integrity of the security vetting process. At paragraph 22 Lord Dyson quoted from his own judgment in Tariq at paragraph 145 in the Supreme Court that the Strasbourg Court does not require a uniform approach in article 6 cases. The argument he was there rejecting was that the requirements for disclosure in the AF (No. 3) case, which concerned a control order which imposed restrictions that fell just short of deprivation of liberty, were of universal application for article 6 purposes.[24]Lord Dyson’s discussion of the issues raised in this part of Kiani’s appeal are to be found between paragraphs 32 and 42 of his judgment. In rejecting the submissions advanced on behalf of the appellant,he stated that Lord Mance’s conclusion in the Tariq case quoted above still held good. He did not accept that there could be a material difference between ECHR and EU law on questions of procedural justice. The Luxembourg Court was not enunciating a universal principle in ZZ but a context specific one:
“The particular feature of the context that it identified was that (i) article 30(2) contained a derogation from an EU right to be informed ‘precisely and in full’ of the grounds on which the decision was taken unless this was contrary to the interests of state security and (ii) this derogation had to be strictly construed. As Mr Bourne QC says, the court would not have expressed itself in these terms if it was of the view that article 47 of the Charter requires disclosure of the essence of the grounds in every case where a person seeks to vindicate an EU law right. If it had intended to say that the ECtHR context-dependent approach to article 6 of the Convention did not apply in EU law, it would surely have said so.” (paragraph 35) He added (paragraph 36) that there was “nothing to suggest that the court was of the view that its conclusion as to the extent of the disclosure obligation in that case applied to all cases within the scope of European Union law.”
[25]Lord Dyson considered that the judgment of the Luxembourg Court in the Kadi case, which concerned a man’s name being placed on a list with the result that all his assets within the EU were frozen, was also inconsistent with an absolutist approach. At paragraph 102, echoing the ZZ case, it said:
“Further, the question whether there is an infringement of the rights of the defence and the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case … including, the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question.”
[26]Lord Dyson agreed with Langstaff J in the EAT that “the statement of principle in ZZ was … related to the particular context – that of restriction on the fundamental rights of free movement and residence of Union citizens under European Union Law – and did not indicate the adoption of a more demanding standard in all contexts.” (paragraph 42)[27]Mr Southey’s acceptance on behalf of AZ that the ZZ case does not impose a uniform standard of disclosure across the board in cases governed by EU law flows from Kiani. He submits that there is a hierarchy of three categories of case for disclosure purposes. First, those where the issue is one of damages (such as Tariq and Kiani) where a minimum level of disclosure is not required by EU law or the ECHR. Secondly, those which interfere with fundamental rights where article 6 ECHR and/or article 47 of the Charter require the minimum level of disclosure: control orders (AF (No. 3)); free movement (ZZ); financial sanctions (Bank Mellat); and asset freezing (suggested in Tariq at paragraph 27). Thirdly, cases where neither article 6 ECHR nor article 47 of the Charter applies, illustrated by decisions relating to the grant of United Kingdom nationality (Pham v Secretary of State for the Home Department [2015] UKSC 19 [2015] 1 WLR 1591) and routine immigration decisions. He submits that AZ’s case falls squarely within the second category with the consequence that he is entitled to ZZ disclosure, or alternatively that the right in issue can properly be equated for disclosure purposes with those which have attracted such disclosure.[28]There is no support for such a hierarchy in the Convention or EU jurisprudence. Neither suggests a dichotomy between the first two categories identified by Mr Southey which would, in any event, be neither logical nor principled. For example, the right not to be discriminated against on grounds of race etc. is guaranteed by the ECHR and by the Charter. Whether a claim relates to historical discrimination limited to damages, continuing discrimination or a decision yet to be implemented which is said to be flawed on grounds of discrimination could not, in my view, determine the nature of the disclosure required by law when the grounds and evidence in relation to each may be identical. Furthermore, the third category, whilst not attracting ECHR or EU procedural guarantees, attracts common law protections every bit as valuable (albeit those relating to disclosure in the context of national security are regulated by statute and rules of court).[29]In my judgment the touchstone to the degree of disclosure required by both the ECHR and EU law viewed in light of the Charter is the nature and impact of the decision in question in the sense described in Kadi at paragraph 102. The disclosure required in the AF (No. 3) case under the ECHR and the ZZ case under EU law is reserved for cases which concern objectively high level rights. Nomenclature in this area is apt to confuse. All the rights guaranteed by the ECHR (more formally the Convention for the Protection of Human Rights and Fundamental Freedoms) and by the Charter (more formally the Charter of Fundamental Rights of the European Union) are ‘fundamental’. Yet as the jurisprudence of both the Strasbourg and Luxembourg courts recognise some of those rights admit of no qualification or derogation, and those which may be qualified demand different levels of justification from decision-makers in support of interference. Within the rights conferred by the EU, which cover a myriad of activities, the flexible approach to article 47, whether or not the instrument in question confers independent procedural rights, also creates a sliding scale for the purposes of disclosure just as has been recognised by the Strasbourg Court for the purposes of article 6 ECHR.[30]It is clear that the disclosure required by the Luxembourg Court in the ZZ case was conditioned by two important considerations. The first was that the decision interfered with what is regarded as one of the most important rights conferred upon its citizens by EU law, namely free movement. Secondly, the relevant directive contained explicit procedural safeguards which conferred a right to information, derogation from which had to be strictly construed.[31]Like the judge, I am unable to accept that a decision to refuse a Convention Travel Document is of the same order for disclosure purposes. The absence of a travel document may be a substantial inconvenience because without it a refugee may not travel within Europe, or seek to travel outside. The refugee may have to apply for country specific travel documents, as happened in this case. The Home Office will consider such applications in the light of its national security concerns on a place-by-place basis. The absence of the Convention Travel Document certainly involves a curtailment of the liberty to travel which a refugee would otherwise enjoy. But it does not have the same quality as a foundational right underpinning the EU. Similarly, it cannot be equated with a control order which, as in AF’s case reached the very boundaries of deprivation of liberty and imposed severe restrictions on his daily activities. Neither, in my view does it equate with asset freezing, which would almost always have a profound continuing impact upon a person’s life, activities and freedoms or the type of order in issue in the Bank Mellat case which stopped the bank doing business within the jurisdiction. For this reason alone, in my view that judge was right to reject the contention that AZ was entitled to the disclosure identified in the ZZ case.[32]The second contextual matter, namely the procedural protections found within the Citizens Directive itself, and their absence from the Qualification Directive and Procedures Directive in connection with the decision on a Convention Travel Document, provide substantial added support to that conclusion.[33]In summarising the judge’s conclusions, I noted his reliance on the decision of the Luxembourg Court in the HT v Land Baden-Wurttemburg case. That concerned a Turkish national of Kurdish origin who was granted refugee status in Germany and then a residence permit. An order was made expelling him from Germany for supporting terrorism, but the order was suspended. The order had the ancillary effect of revoking his residence permit and thus an impact on all sorts of other public benefits, access to employment and vocational training. Article 21 of the Qualification Directive mirrors article 33 of the Geneva Convention which prohibits refoulement save in limited circumstances but says nothing about expulsion which does not involve refoulement. Article 21(3) provides that a refugee’s residence permit may be revoked where a refoulement decision has been made. But HT was not going to be subject to refoulement. The question therefore arose whether his residence permit could anyway be revoked pursuant to article 24 which as material provides:
“1. As soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3)”
It is immediately apparent that article 24(1) does not make explicit provision for a residence permit, once granted, to be revoked. The first and third questions considered by the court asked whether, nonetheless, it permitted revocation. The answer was yes: see paragraph 55.[34]The English language text of article 21(2) allows refoulement “if there are reasonable grounds for considering” the refugee to be a danger to the security of the host state. The Luxembourg Court noted the differences in the texts of various language versions of this part of the Qualification Directive and concluded that that this phrase meant “serious reasons for considering”: see paragraph 57 and the discussion which follows. This aspect of the decision is complicated by the fact that the phrase “reasonable grounds” appear in the English version of the Refugee Convention itself whereas the French version uses the term “raisons sérieuses”.[35]The second question referred to the Luxembourg Court concerned whether, even if revocation of the residence permit could not be justified under article 21(3) (serious reasons) it might be justified under article 24(1) (compelling reasons). In paragraphs 73 and 74, the court noted that the consequences for a refugee of losing a residence permit were of a lower order of magnitude than losing refugee status or being subject to refoulement. It is for that reason that: “… the concept of ‘compelling reasons’ contained in article 24(1) … has a broader scope than the concept of ‘serious reasons’ contained in article 21(2) … and that certain circumstances which do not exhibit the degree of seriousness authorising a member state to use the derogation provided for in article 21(2) … to take a refoulement decision can nevertheless permit that member state, on the basis of article 24(1) … to deny the refugee concerned his residence permit.” (paragraph 75). The court explained that loss of a residence permit may not have a particularly significant impact if the person concerned does not also lose his refugee status, because many rights under the Qualification Directive attach to that status and do not depend upon possession of a residence permit (paragraph 95).[36]The limit of the point made by the judge is that rights within the Qualification Directive from which Member States may derogate for “compelling reasons” do not carry the same weight as those which require what the Luxembourg Court has determined to be a more exacting standard in support of derogation. The right to a Convention Travel Document is qualified by a “compelling reasons” test rather than anything more exacting. It does not equate with losing refugee status or refoulement. The judge considered that to be another indicator that the right to a Convention Travel Document is not be equated with free movement rights. To that limited extent I do not disagree with the support which the judge took from the judgment of the Luxembourg Court in its judgment in the HT case. But I would not regard it is central, or indeed necessary, to the outcome of the procedural aspects of the judicial review claim. Of more moment in support of comparative importance of the various rights found in the Geneva Convention, and replicated in the Qualification Directive, is the fact that in connection with expulsion decisions, article 32 of the Geneva Convention introduces procedural safeguards but it does not do so in connection with decisions on travel documents.[37]The judge’s conclusion that the ZZ standard of disclosure does not apply to decisions to refuse Convention Travel Documents was correct. The outline of the grounds given to AZ, coupled with the protections afforded by the closed material procedure involving special advocates, satisfy the procedural requirements of article 47 of the Convention.

Issue 2: Disclosure before the decision was made

[38]The appellant’s argument that he was entitled to ZZ disclosure before the decision was taken to refuse him a Convention Travel Document involves the propositions(a) that a government is obliged by EU law to disclose information which may be contrary to the interests of national security before it takes a decision designed to protect risks to national security; and(b) that it must do so even if it would not be obliged to disclose the same information in subsequent litigation over that decision. In the course of oral argument Mr Southey accepted that if he was unable to secure additional disclosure for AZ in the litigation he “could not get home on having it earlier”. To my mind, that was a realistic concession. One of the many reasons identified by the judge for refusing permission to apply for judicial review on this ground was that it would be illogical to require the Secretary of State to disclose in advance of making a decision material which she could not be required to disclose in subsequent litigation. For that reason alone, this ground is unarguable and permission to apply for judicial review on this basis was rightly refused by the judge.[39]Mr Southey’s argument in support of a general rule of disclosure before decision making in EU law recognised that article 41 of the Charter applies only to decisions made by “institutions and bodies of the Union”. It has no direct application to decisions made by the Home Secretary. That said, he relied upon a series of decisions of the Luxembourg Court in support of the proposition that administrative decision making within the scope of EU law carried with it a legal duty of prior disclosure as part of a duty of good administration (in particular, HN v Minister of Justice, Equality and Law Reform (C-604/12) [2014] 1 WLR 3371 at paragraph 49 and France v People’s Mojahedin Organisation of Iran (C-27/09P); [2013] All ER (EC) 347 at paragraph 75). Mr Eadie did not dispute that EU law recognises a duty of good administration reflective of the rights enshrined in article 41 of the Convention. He did, however, dispute its application to the circumstances of this case, not simply on the basis that it would be incoherent to recognise it in circumstances where it is accepted that no such disclosure would be made in subsequent litigation, but on additional grounds.[40]It is unnecessary, even undesirable, to consider the wider arguments advanced by both Mr Southey and Mr Eadie on this ground given my conclusion that it can carry this appellant nowhere and their clear non-applicability to the situation of AZ.

Issue 3: Reference to the Luxembourg Court

[41]Like the judge, I am satisfied that the principles upon which EU law of disclosure rest have been articulated by the Luxembourg Court and there is no need for a reference for their elucidation. It is not appropriate to refer a case to the Luxembourg Court every time the application of a principle falls to be considered in novel circumstances. The same view was taken by this court in the Kiani case, see paragraph 57. Furthermore, as the judge noted, the question of disclosure is not dispositive of this litigation: AZ may succeed in his claim for judicial review.

Conclusion

[42]For the reasons I have given, I consider that none of the three arguments advanced on behalf of AZ succeeds and would dismiss the appeal.[43]I agree.[44]I also agree.

Cited in 7 later judgments