AZ v Secretary of State for the Home Department [2015] EWHC 3695 (Admin)

Case No CO/5194/2014[2015] EWHC 3695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2015
Before
MR JUSTICE NICOL
Between
AZClaimantSecretary of State for the Home DepartmentDefendant
Hugh Southey QC and Edward Grieves (instructed by Wilsons, solicitors) for ClaimantJulian Blake (instructed by Government Legal Department) for DefendantHearing Hearing dates: 12 th and 13 th November 2015
JudgmentMr Justice Nicol :
[1]The Claimant is a Syrian national who has been recognised as a refugee and has been given leave to remain in the UK in that capacity. Article 28 of the Geneva Convention on Refugees provides that Contracting States shall issue a travel document to refugees lawfully staying in their territory ‘unless compelling reasons of national security or public order otherwise require’. The same obligation is repeated in Council Directive 2004/83/EC of 29th April 2004 (‘the Qualification Directive’) Article 25(1). The Claimant applied for a Travel Document on 24th August 2012. His application was refused on 11th December 2013 on national security grounds. On 15th January 2014 the lawyers for the Secretary of State for the Home Department – ‘SSHD’ - elaborated by saying ‘There were compelling reasons of national security justifying the decision of the [SSHD]. Our client assesses that [the Claimant] is an Islamic extremist and that granting him a travel document would increase the risk to UK national security and disclosure of further information other than detailed above would be prejudicial to national security.’[2]On 10th March 2014 litigation first began when the Claimant issued a claim form in the Upper Tribunal (Immigration and Asylum Chamber) – ‘UTIAC’. At the time, that appeared to be the appropriate venue, but a change in the Lord Chief Justice’s directions for the mandatory transfer of proceedings from the Administrative Court to UTIAC on 17th October 2014 meant it was no longer so. The Claimant issued the present claim form in the Administrative Court on 10th November 2014. In view of this procedural history, the SSHD made no objection to the claim on grounds of delay and, on 30th April 2015, Lang J. extended time for bringing the claim.[3]Some further information as to the SSHD’s reasons for refusing to issue a travel document were given on 14th January 2015 when it was said, ‘You have been refused a travel document on the basis that it was assessed that granting a travel document would increase the risk to UK national security. You were assessed to hold Islamist extremist views and have expressed a desire to travel to Syria to engage in fighting. In the light of this information you may wish to consider making representations to the Home Office so that your application can be reconsidered.’[4]The Claimant’s solicitors did make further representations on 20th March 2015. They denied that he held extremist views and denied that he intended to travel to Syria to fight. They provided evidence of his poor mental health (severe post traumatic stress disorder and depression) and poor physical health (severe back and leg pain).[5]On 9th April 2015 the Claimant’s solicitors asked for him to be given a travel document which would specifically permit him to travel to Sweden. His father, also a Syrian national, had gone to Sweden to receive medical treatment for widespread cancer. The Claimant’s father’s condition was serious. He was not expected to live for long.[6]On 8th May 2015 the SSHD agreed to the specific request for a travel document to enable the Claimant to travel only to Sweden. Sadly, on the same day the Claimant’s father died. The Claimant then applied, through his solicitors, for another travel document to allow him to go to Jordan in order for him to attend his father’s funeral. However, this (the Jordan only) application was withdrawn on 5th June 2015. On 26th June 2015 the SSHD maintained the refusal to grant a general travel document. The original decision had been taken by officers within the Home Office. The decision of 26th June was taken by the Secretary of State personally.[7]At the hearing on 30th April 2015 Lang J. ordered that the proceedings could include a closed element, pursuant to the Justice and Security Act 2013 s.6. She also directed that there should be a rolled up hearing for permission to apply for judicial review and a substantive hearing (if permission was granted) of the procedural grounds relied upon by the Claimant. Those grounds can be summarised as follows: i) The Claimant was entitled to be told of the SSHD’s national security concerns in advance so that he could respond to them before a decision was taken (‘disclosure before decision’ argument). ii) The Claimant is entitled to be provided with sufficient disclosure of the reasons for the decision to enable him to challenge effectively the refusal of a travel document (‘disclosure in litigation’ argument).[8]It was this rolled up hearing of these procedural challenges which I heard on 12th and 13th November 2015.

Right to a travel document

[9]Article 28 of the Geneva Convention on Refugees, so far as material, provides:
‘The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such document…’
[10]The Qualification Directive 2004/83/EC Article 25 says, ‘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…’[11]The UK has transposed this aspect of the Qualification Directive in the Immigration Rules r. 344A(i) which says, ‘After having received a complete application for a travel document, the Secretary of State will issue to a person granted asylum in the UK 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 UK, unless compelling reasons of national security or public order otherwise require.’

European Union provisions on which the Claimant relies for procedural rights

[12]Council Directive 2005/85/EC sets out detailed procedures for Member States to adopt in reaching decisions to grant or withhold refugee status. This says nothing about the procedure for decisions relating to travel documents. However, Mr Southey QC for the Claimant relies on the Charter of Fundamental Rights of the European Union – ‘the Charter’ - and three provisions of that document in particular.

Article 41 of the Charter – Right to Good Administration

[13]This says, ‘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. This right includes: - the right of every person to be heard before any individual measure which would affect him or her adversely is taken. - 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; - the obligation of the administration to give reasons for its decisions….’[14]Mr Southey acknowledges that, in its express terms, Article 41 applies only to the ‘institutions and bodies of the Union.’ Its express terms do not therefore assist him in his challenge to the decisions of the SSHD. That is undoubtedly correct – see YS v Minister voor Immigratie, Intergratie en Asiel (Cases C-141/12 and C 372/12) [2015] 1 WLR 609 [67] CJEU. However, as the Court went on to say in the same case - at [68] ‘It is true that the right to good administration, enshrined in that provision reflects a general principle of EU law’. In YS itself it was not necessary for the CJEU to consider that general principle because it was not something on which the referring court had asked for assistance.[15]The general principle had, however, been considered by the CJEU in earlier cases. Thus in MM v Minister of Justice, Equality and Law Reform (Case C-277/11) the Court said, ‘[81] In that regard it must be recalled that observance of the rights of the defence is a fundamental principle of EU law… [82] In the present case, with regard more particularly to the right to be heard in all proceedings, which is inherent in that fundamental principle…that right is now affirmed not only by Articles 47 and 48 of the Charter, which ensure respect of both the rights of defence and the right to fair legal process in all judicial proceedings, but also in Article 41 thereof, which guarantees the right to good administration. [83] Article 41(2) of the Charter provides that the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, 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, and the obligation of the administration to give reasons for its decisions. [84] It must be stated that, as follows from its very wording, that provision is of general application. [85] Thus the Court has always affirmed the importance of the right to be heard and its very broad scope in the EU legal order, considering that that right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person… [86] In accordance with the Court’s case-law, observance of that right is required even where the applicable legislation does not expressly provide for such a procedural requirement…’[16]Likewise, in N v Minister for Justice, Equality and Law Reform (Case C-604/12) [2014] 1 WLR 3371 CJEU, the Court said, ‘[49] As regards the right to good administration, enshrined in article 41 of the Charter, that right reflects a general principle of EU law. [50] Accordingly, where, in the main proceedings, a member state implements EU law, the requirements pertaining to the right to good administration, including the right of any person to have his or her affairs handled impartially and within a reasonable period of time, are applicable in a procedure for granting subsidiary protection, such as the procedure in question in the main proceedings, which is conducted by the competent national authorities.’ Article 47 of the Charter – Right to an Effective remedy and to a Fair Trial[17]This says, ‘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. 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.’[18]This provision has an obvious echo of Article 6 of the European Convention on Human Rights (‘ECHR’). That provision, though, begins ‘In the determination of his civil rights and obligations or of any criminal charge against him…’ There is an obvious difficulty for the Claimant in relying directly on Article 6 since matters regarding immigration do not concern ‘civil rights and obligations’ – see for instance Maaouia v France (2001) 33 EHRR 42 ECtHR. Likewise, issues concerning nationality are not civil rights or obligations – see R (Harrison) v Secretary of State for the Home Department [2003] INLR 284 CA and the Special Immigration Appeals Commission has recently held that Article 6 is also inapplicable to proceedings concerning the deprivation of British Citizenship – see K2 v SSHD SC/96/2010 decision of 7th July 2015. While Mr Southey was not willing to concede that the issue was beyond argument, he, prudently, chose not to develop the point, since he submitted this was unnecessary. He referred to the Explanations Relating to the Charter of Fundamental Rights 2007/C303/02. These Explanations must be given due regard in the interpretation of the Charter - see Charter Article 52(7) and Treaty of European Union Article 6. The Explanations said of Article 47, ‘The second paragraph corresponds to Article 6(1) of the ECHR… In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law…Nevertheless in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.’[19]Since Union law gave the Claimant at least a qualified right to a Travel Document, he was entitled to rely on Article 47 in that regard.

Article 52 –Scope of Guaranteed Rights

[20]Mr Southey recognised that the structure of the Charter was not to incorporate qualifications in the individual substantive provisions, but to include a general provision to allow for such qualifications. This was Article 52 which says, ‘1. Any limitations 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 those Treaties. 3. Insofar as this Charter contains rights which correspond to the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, 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…’ The Claimant’s submissions Disclosure before decision

The Claimant’s submissions

[21]While the right to a travel document has its origin in the Geneva Convention, it has now been incorporated into Union law by the Qualification Directive. Although Article 41 does not apply directly, because the decision as to whether to issue a travel document is taken by the UK (and not an EU institution), the general right to good administration does apply to the way in which the UK is required to handle the application. Article 41(2) says that the right to good administration includes the right of every person ‘to have access to his file’. One purpose of the right to good administration is to reduce the possibility of the administrator making erroneous decisions. The person concerned can be expected to lay relevant information before the administrator on areas which he knows will be of importance, but good administration requires the administrator to alert the individual to other matters which he may not understand to be relevant – see Boudjlida v Préfet des Pyrénées-Atlantiques (Case C-249/13) [2015] 1 CMLR 2407 CJEU at [52]-[57].[22]Mr Southey stressed that he was not submitting that Article 41 required a ‘minded to refuse’ letter in every case before a decision was taken. A similar argument to this effect had been advanced in M v Minister for Justice Equality and Law Reform (Case C-277/11) and been rejected by the CJEU – see [60]-[61]. The argument had been based on Article 4(1) of Directive 2004/83 – the Qualification Directive which said, ‘Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.’ The Court did not expressly consider the effect of the Charter in this context. However, later in the same judgment it did consider Article 41 of the Charter. It is inconceivable that the Court would have given the answer which it did if it had thought that such a right could be derived from the general principle of good administration. Indeed, in Boudjlidaat [55] the Court again said that ‘the right to be heard’ (by which it was referring to the general principle embodied in Article 41 of the Charter – see [30]-[32]) did not require a Member State to disclose to the person concerned that it was intending to take an adverse decision or the evidence on which it proposed to rely to justify that decision. Mr Southey, though, was contending for a narrower right, that was a right to be alerted to matters which the state thought important to the application, but which the applicant may have been unaware that he needed to address.[23]Mr Southey accepted that there might be situations where disclosure before decision would not be required. There may, for instance, be cases where advance notification of the intended decision would undermine its pre-emptive purpose. In other words, surprise might be essential. In other circumstances, urgent administrative action might be the predominant consideration and the need for speed could then preclude advance notification. People’s Mojahedin Organisation of Iran v France (Case C-27/09 P) had discussed both possibilities. However, neither of these applied to the current issue.[24]In the present case, the Claimant filled in the required form for a travel document. He answered the general questions concerning his character, but he had no means of knowing that the SSHD was to refuse the travel document on national security grounds. He had no means of knowing, therefore, that this was a subject matter that he needed to address. Still less did he know that he needed to address the SSHD’s concern that he was an Islamic extremist and the SSHD’s belief that he wished to travel to Syria to fight. Even if national security grounds could qualify the SSHD’s duty to alert the Claimant in this regard, the SSHD apparently considered that disclosure, at least to this limited extent, could be made compatibly with national security since that is what was disclosed in January 2015. Mr Blake, for the SSHD, asserted during the course of the hearing that it was wrong to infer that a disclosure which could be made in January 2015 could also have been made consistently with the interests of national security in January 2014 (or before the decision was first taken in December 2013), but, Mr Southey submitted, this proposition would depend on evidence which I should consider in a closed session during which the Special Advocate would have the opportunity to test the assertion.[25]Mr Southey argued that there was a limited overlap between the two procedural challenges. If the Claimant was right in his submission as to his entitlement to be told (at least) the essence of the case against him in the course of litigation and right also that what had been disclosed so far did not fulfil that duty, then he should also have been supplied with this greater detail in advance of the decision being made. A similar point was made by Lord Sumption in Bank Mellat v H.M. Treasury (No.2) [2014] AC 700 at [31].[26]Mr Southey also submitted that the offer in January 2015 to reconsider the decision in the light of any further representations which the Claimant wished to make was not sufficient to redress the failure to comply with the principle of good administration. By then the decision to refuse the Claimant a travel document had been taken and it would be much harder to shift the SSHD from an established position. Hooper LJ had made this point in SSHD v SP [2004] EWCA Civ 1750 at [58] when he said, ‘As Jack J [at first instance] rightly observed, once a decision is made, it is difficult to change it. This is particularly so when a decision has been made on a factual basis and when the person subject to the decision seeks to persuade the decision maker, after the decision has been made, that the factual basis on which he acted is wrong. Inevitably the decision maker will be reluctant to conclude that his original decision was wrong. Simon Brown LJ in R v SSHD ex parte Hickey (No.2) [1995] 1 WLR 734 at 744 made the point that “it is difficult to suppose that [a decision maker] can remain as open-minded as if no clear decision has been taken.”.’

Disclosure in litigation

[27]Mr Southey submitted that, because Union law gave the Claimant the right to a travel document, he must be allowed an effective means of challenging the SSHD’s refusal to issue one to him. This was the result of Article 47 of the Charter. Thus, even on the assumption that Article 6 of the ECHR could not be relied upon directly, the Claimant had an Article 6-like right.[28]Mr Southey argued that a consequence of this was that the Claimant was entitled to be told the essence of the SSHD’s reasons for refusing to issue a travel document on national security grounds. Even if national security justified withholding some of the evidence on which the SSHD relied, it would render ineffective the essence of the right to legal challenge if an irreducible minimum of the SSHD’s case was not disclosed. Thus, via Article 47 of the Charter, the Claimant had the same right as the Strasbourg Court had held to be entailed when Article 5 or Article 6 of the ECHR was engaged in A v UK (2009) 49 EHRR 625 and the Supreme Court in SSHD v AF (No.3) [2010] AC 269 had again found it to be a consequence of Article 6. In ZZ (France) v SSHD the CJEU - (Case C-300/11) [2013] QB 1136 - and the Court of Appeal - [2014] QB 820 had concluded that there was likewise an irreducible minimum of information which the SSHD had to disclose to French and Algerian national whom the SSHD had decided to exclude from the UK on national security grounds.[29]Mr Southey accepted that this irreducible minimum of disclosure was not always required when a person litigated a claim to rights under Union law and the public authority relied on national security grounds. Kiani v SSHD [2015] IRLR 837 CA was a recent authority to this effect. It held that in ZZ the CJEU had not purported to enunciate a universal principle of EU law but was speaking of its application in a specific context – see [35]. ZZ had concerned an EU national who was seeking to exercise freedom of movement within the territory of the Member States. By Article 27 of the Free Movement Directive (2004/38/EC), rights of free movement could be restricted on grounds of public policy, public security or public health’, but by Article 27(2), ‘Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’[30]Moreover Article 30(2) of the Free Movement Directive provided that, where a Member State restricted free movement rights, ‘1. The person 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 the implications for them. 2. The person 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.’[31]Returning to Kiani the Court of Appeal continued at [35] by saying, ‘The particular feature of the context that [the CJEU in ZZ] identified was that(i) Article 30(2) and 31 of the Directive 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.’[32]The Court of Appeal found further support for rejecting the universal entitlement to know an irreducible minimum of the national security grounds for derogating from an EU right in European Commission v Kadi (No.2) [2014] 1 CMLR 659 where the CJEU had said at [102] ‘Further the question where there is an infringement of the rights of the defence and of 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 legal rules governing the matter in question.’[33]Since the idea of a universal entitlement under EU law was rejected, the Court of Appeal in Kiani upheld the decision of the EAT which followed what the Supreme Court had said in Tariq v Home Office [2012] 1 AC 452, namely that there was no obligation to disclose some irreducible minimum in national security matters of this kind.[34]As I say, Mr Southey accepts that there is no universal rule which he can invoke, but he argues, the present context is one where the Claimant is entitled to be told the essentials of the national security case against him in the same way that ZZ and AF were. In support of this proposition, Mr Southey relies on the following: i) The right to a travel document is now part of Union law, but it derives from Refugee Convention which shows its wide based origin in international law. ii) Tariq v Home Office and Kiani v SSHD both concerned claims for damages. Neither of those individuals was arguing that he had a right to reinstatement. In neither of those cases, therefore, was there continuing state interference in freedom of action. In Tariq v Home Office Lord Hope at [81] had said, ‘Here again the context for the argument is what matters. This is an entirely different case from Secretary of State for the Home Department v AF (No.3). There the fundamental rights of the individual were being severely restricted by the actions of the executive. Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state. In this case the individual is not faced with criminal proceedings against him or with severe restrictions on personal liberty. This is a civil claim and the question is whether Mr Tariq is entitled to damages.’ Lord Mance made similar observations at [27]. iii) This case illustrated how important a travel document could be to a refugee. Without it, the Claimant could not travel to see his terminally ill father before he died. Without it, he is unable to travel to attend his father’s funeral which is a profound loss to someone from the Claimant’s community and culture.[35]Mr Southey submitted that the nature of the SSHD’s obligations when refusing a travel document to a refugee on national security grounds, was of sufficient importance that I should make a reference to the CJEU for a preliminary ruling. There was no clearly analogous case from which I could safely infer that this was not a situation where an irreducible minimum had also to be disclosed. It was only the CJEU which could give a definitive answer. In considering that matter, I should apply the test set out by Sir Thomas Bingham M.R. in R v Stock Exchange ex p. Else Ltd [1993] QB 534, CA at p.545 ‘…I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court’s final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer.’ Discussion Disclosure Before Decision

Discussion

[36]Mr Blake argued that there was a well recognised distinction in English law between cases where the executive was proposing to deprive a person of an existing right (where the highest standards of fairness were required); where there was a legitimate expectation that some right would be granted or continued; and application cases where the individual concerned could insist on only more attenuated procedural rights – see McInnes v Onslow-Fane [1978] 1 WLR 1520 Ch.D.[37]While this graduated scale may help in some contexts, I share Mr Southey’s doubts as to its usefulness in the present one. He referred to R v SSHD ex parte Fayed [1998] 1 WLR 763 CA which concerned a challenge by the Fayed brothers to the refusal of the SSHD to grant them naturalisation as British Citizens. This was plainly an ‘application’ case. There was, as Phillips LJ said at p.787E, no vested right at risk. Yet it nonetheless concerned an application for rights of great importance, not least because of the rights of free movement within the European Community which would come with British nationality. It is clear that the Court of Appeal considered this to be an example of the type of case where common law fairness required the SSHD, in principle, to disclose the areas of concern which might result in the application being refused. Otherwise it would be impossible for the applicant to make out his case and that would be grossly unfair – see Lord Woolf MR at p.773G and Phillips LJ at p.787E.[38]I also agree with Mr Southey that the application form for a travel document was not sufficient to put the Claimant on notice as to the areas which he ought to address. The questions were too general to fulfil that function in the context of the present case.[39]But, while Fayed assists the Claimant’s case to this extent, Mr Blake was able to rely on it in two other important respects.[40]Firstly, the obligation to alert the individual to areas of concern was limited and qualified. As Lord Woolf said at p.776H-777A. ‘It does not require the Secretary of State to do more than to identify the subject of his concern in such terms as to enable the applicant to make such submissions as he can. In some situations even to do this could involve disclosing matters which it is not in the public interest to disclose, for example, for national security or diplomatic reasons. If this is the position then the Secretary of State would be relieved from disclosure and it would suffice if he merely indicated that this was the position to the applicant who if he wished to do so could challenge the justification for the refusal before the courts.’[41]Secondly, it is apparent that the Courts considered that the failure which had happened in the past could be cured: the past decisions would be quashed ‘so they can be retaken in a manner which is fair’ - Lord Woolf at p.778B and Phillips LJ at p.790B. In this regard, it is pertinent to note that Phillips LJ cited the speech of Lord Mustill in R v SSHD ex parte Doody [1994] 1 AC 531,560 who had said, ‘(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.’[42]This is relevant in the present context because, in January 2015 the SSHD provided the Claimant with some further information as to the reasons why a travel document had been refused, invited him to make further submissions and offered to reconsider the matter in the light of those submissions. It is common for the SSHD in the immigration context to offer to reconsider an adverse decision. When that happens, the Administrative Court will usually treat any remaining dispute as to the legality of the original decision as academic – it serves no purpose since, even if that challenge is successful, the claimant will achieve no more than the reconsideration which is being offered. Usually, the reconsideration will be conducted by the same officials or team of officials within the Home Office. As it happens, the reconsideration decision in the present case was taken personally by the SSHD on or before 26th June 2015.[43]The SP case cited by Mr Southey is an example of where it was not sufficient to give the person concerned the opportunity to make submissions as to why the original decision should be changed. But it is notable that the Court emphasised that it reached its decision in the light of the particular facts. The issue was whether the SSHD, as responsible for the administration of a Young Offenders Institution where the Claimant had been detained, had acted lawfully in transferring him to a segregation unit without a proper opportunity to be heard. As Hooper LJ said at [7] ‘SP being a child and subject therefore to a very particular regime, it does not follow, in my view, that the judge’s declaration would necessarily apply to all prisoners.’[44]I appreciate that these are domestic law decisions and I have to consider Mr Southey’s arguments which are founded on the right to good administration as reflected in Article 41 of the Charter, but that does not mean that the domestic approach to fairness in administrative decision-making is irrelevant. Article 52(4) of the Charter now says, ‘In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.’[45]Of course, the English authorities speak to the equivalent to a constitutional tradition in just one of the Member States, but nothing has been put before me to suggest that in this respect England is out of step with constitutional traditions in other Member States. Neither Article 41, nor any of the authorities cited by Mr Southey go so far as to show that an opportunity to make representations before a reconsideration takes place is insufficient to satisfy the right to good administration.[46]As I have noted above, part of Mr Southey’s submissions as to the disclosure which should have been made to the Claimant prior to the refusal of a travel document, was dependent on him making good the other procedural ground of challenge. In short, he argued, if the Claimant is entitled to further information as to the SSHD’s national security case as part of his right to an effective judicial challenge, that further detail should have been supplied in advance of the administrative decision making. I am about to turn to consider that second procedural challenge now, but for the reasons which I give, it is not successful. Accordingly, it can give the Claimant no further support for this first procedural challenge. In my judgment, on the contrary, it further undermines the first procedural challenge. If, as I conclude, the SSHD is entitled to withhold material whose disclosure would harm the interests of national security from the Claimant in the course of this litigation, it would be illogical if she was obliged to disclose that same information to the Claimant in advance of taking the decision. Fayed demonstrates that the common law does not require such a conclusion. Article 41 allows the EU institutions to withhold access to the file if this is necessary to respect the legitimate interests of confidentiality and of professional and business secrecy. I agree with Mr Blake that, so far as Article 41 embodies a general principle of good administration that must be followed by Member States, they must likewise be permitted to withhold disclosure which would harm national security.[47]For these reasons, I consider that this first procedural challenge, the ‘disclosure before decision’ argument is not made out.[48]Mr Blake had an alternative argument, namely that the principle of good administration which applies to Member States is less demanding than the express terms of Article 41 of the Charter impose on the institutions of the EU. Given the decision to which I have come, it is unnecessary for me to reach a definitive conclusion about this argument, although I think there is some force in Mr Southey’s response that the distinction lacks any support in the authorities.

Disclosure in litigation

[49]The material on which the SSHD wishes to rely in closed session has already been disclosed to the Special Advocates who represent the interests of the Claimant. I am told that they have completed the exercise of reviewing the SSHD’s claims that neither this material nor any further gist of it can be disclosed without damaging the interests of national security. Either they have accepted, or the Court has ruled, that no further disclosure can be made compatibly with the Court’s duty in CPR r.82.2(2) to ensure that information is not disclosed in a way which would be damaging to the interests of national security.[50]It is, though, Mr Southey’s case, that this obligation must give way to the superior requirement of Union law as represented by Article 47 of the Charter that the Claimant is entitled to know the essence of the case against him so that his challenge to the refusal of a travel document can be effective.[51]There are circumstances where the entitlement to know the essence of the case against a litigant can prevail over the interests of national security. Article 6 of the ECHR required this in the case of control orders made pursuant to the Prevention of Terrorism Act 2005 s.2 – see AF v SSHD (No.3) (above). Article 6 required disclosure of an irreducible minimum in Bank Mellat’s challenge to the Treasury’s order which effectively shut it out of the UK financial sector – see Bank Mellatv H.M. Treasury (No.2) above and in Bank Mellat v H.M. Treasury [2015] EWCA Civ 1052 the Court of Appeal confirmed that the AF (No.3) standard did indeed have to be applied. Article 47 of the Charter was found to have a like consequence when EU nationals, who were prevented from exercising Treaty rights of free movement on national security grounds, challenged the legality of those decisions – see ZZ (France) v SSHD [2014] QB 820 CA. Again, in European Commission v Kadi [2014] 1 CMLR 659 the Grand Chamber of the CJEU held that the right of effective defence meant that an individual whose assets were frozen as a result of a UN measure against those allegedly connected with Al Qaida should be told the identity of firms through which money had allegedly been funnelled to extremists, when the alleged conduct had taken place and the identity of the extremists who were alleged to have benefited.[52]It is, therefore, too simplistic to argue, as Mr Blake did, that, since a travel document can be refused on national security grounds, it would be absurd if the SSHD was obliged to defend her decision only by making a disclosure which itself was harmful to national security. After all, free movement rights of EU nationals can be curtailed for reasons of public security and yet the CJEU has said in ZZ (France) v SSHD –above - that an irreducible minimum of disclosure must be made if the decision is challenged.[53]I remind myself that in Kadi the CJEU said at [102] that, ‘Further the question whether there is an infringement of the rights of the defence and of 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.’[54]While I appreciate the points which Mr Southey made as to how important a travel document can be to a refugee, the refusal to issue a travel document is simply not in the same league as the interference with free movement rights of an EU national (which is the case that comes closest to the Claimant’s). Free movement for EU nationals within the territory of Member States is one of the founding freedoms of the Union – see for instance paragraphs (1) and (2) of the Preamble to the Free Movement Directive (2004/38/EC). Derogation from that right is strictly construed. In addition, there is an express procedural right to be given ‘precisely and in full’ the grounds for restricting the right unless this is contrary to the interests of State security. The Court of Appeal attached particular significance to this procedural right when, in Kiani at [35], it distinguished ZZ. There was no comparable procedural entitlement in the context in which Mr Kiani was claiming Union rights and that was a strong pointer against him being entitled to some irreducible minimum of disclosure. Thisis no doubt an example of what the CJEU in Kadi described as ‘the legal rules governing the matter in question’ being relied upon to distinguish cases where there is, or is not, an entitlement to that degree of disclosure.[55]Nor is the refusal to issue a travel document truly analogous to the curtailment of liberty involved in control orders with which the Supreme Court was concerned in AF (No.3), the freezing of assets (which were in issue in Kadi) or the shutting down of a bank’s business in the UK (as in Bank Mellat). I recognise, as Mr Southey submitted, that the Claimant’s claim is not just about compensation, but a continuing failure by the SSHD to give the benefit to which he says he is entitled. In practical terms the absence of a travel document inhibits the Claimant’s ability to go abroad, but this is not comparable to the ‘severe restrictions on personal liberty’ to which Lord Hope referred in Tariq at [81].[56]The Qualification Directive Article 25 allows Member States to refuse to issue a travel document if there are ‘compelling reasons’ of national security. In HT v Land Baden-Wurttemberg (Case C-373/13) the CJEU was asked to give a preliminary ruling in relation to German litigation brought by a refugee who had not been refouled from Germany (pursuant to Article 21 of the Qualification Directive) but whose residence permit (which had been issued pursuant to Article 24 of the same Directive) had been revoked. Article 24 required a residence permit to be issued to a refugee ‘unless compelling reasons of national security or public order otherwise require’ – in other words a proviso in the same terms as Article 25. Article 21 requires Member States to respect the principle of non-refoulement but (consistently with the Refugee Convention) permits such action if ‘(a) there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; or (b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.’ The CJEU commented, ‘[73] However, Article 24(1) of Directive 2004/83, whose wording is more abstract than that of Article 21(2) of that Directive, pertains only to the refusal to issue a residence permit to a refugee and to the revocation of that residence permit, and not to the refoulementof that refugee. That provision therefore concerns only situations where the threat posed by that refugee to the national security, public order or public [presumably, health] of the Member State in question cannot justify loss of refugee status, let alone refoulement of that refugee. That is why implementation of the derogation provided for in Article 24(1) of Directive 2004/83 does not presuppose the existence of a particularly serious crime. [74] The consequences, for the refugee, of revoking his residence permit pursuant to Article 24(1) of Directive 2004/83 are therefore less onerous, in so far as that measure cannot lead to the revocation of his refugee status and, even less, to his refoulement within the meaning of Article 21(2) of that directive. [75] It follows that the concept of ‘compelling reasons’ contained in Article 24(1) of Directive 2004/83 has a broader scope than the concept of ‘serious reasons’ contained in Article 21(2) of that directive There is a problem with this part of the Court’s decision. The expression ‘serious reasons’ does not in fact appear in Article 21(2) of directive 2004/83. One possibility is that the Court intended to refer to the term ‘reasonable grounds’ which is used both there and in Article 33 of the Refugee Convention. This seems most likely. As Mr Southey pointed out in written submissions after the hearing, the French text of Article 21(2) speaks of ‘raisons serieuses’, as does the French text of Article 33 of the Refugee Convention. I regard this as far more likely that a second possibility, namely that the Court was alluding to Article 28 of the Free Movement Directive (Directive 2004/38/EC) which the Court quoted at paragraph 14 of its judgment. Article 28(2) of that Directive provides that ‘The host MemberState 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.’ I reject this possibility because it would mean that in paragraph [75] of its judgment in HT the Court referred not only to the wrong article but also to the wrong directive as containing the phrase ‘serious grounds’. , 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) of that directive and to take a refoulement decision can nevertheless permit that Member State on the basis of Article 24(1) of the same directive, to deny the refugee concerned his residence permit.’ As Mr Blake submitted, if derogation from the right to a residence permit is easier to justify than refoulement, it must follow that refusal of a travel document which is also permitted if there are ‘compelling reasons of national security’ is likewise of a lesser order than refoulement. Furthermore, I also take from HT that it is dangerous to assume that a derogation qualified by the adjective ‘compelling’ means it must be interpreted particularly strictly. Paragraph [75] treated it as allowing a ‘broader scope’ than the term ‘serious reasons’ (or, I assume, ‘reasonable grounds’).[57]In construing an English statute a common (though rebuttable) presumption is that when Parliament has used the same word or phrase in different parts of the statute, it is intended to have the same meaning in each part. EU legislation is prepared in each of the official languages of the Union. The legislative instrument must be given a common meaning. Necessarily, therefore, the approach to interpretation cannot be the same as with a domestic statute. Greater emphasis is given instead to a teleological or purposive approach. Indeed, in HT itself the Court discussed the problems that arose from the multiple languages in which EU legislation was prepared - see [59]-[62]. It seems to me, though, that the arguments of Mr Blake to which I have just referred are consistent with this approach. A purposive approach must acknowledge that refoulement is a far more serious step than the refusal or withdrawal of a residence permit. The circumstances in which refoulement would be justified are correspondingly likely to be much narrower. It follows that, at least in this context, the term ‘compelling reasons’ could be construed more widely than the expression which qualified the circumstances in which refoulement was permitted. The same approach, though, leads to the same conclusion in the context of refusal of a travel document which Article 25 also permits if there are ‘compelling’ reasons of national security. Since the consequences of refusal of a travel document will also be less serious than refoulement, the circumstances in which that will be permitted will likewise be wider. They must, of course, reach a certain level of seriousness to justify withholding a travel document, but not of the degree which the word ‘compelling’, considered in isolation and without regard to this teleological approach, might suggest.[58]In the course of the hearing, I asked the parties to reflect on whether there was any assistance to be gained from Article 32 of the Refugee Convention, which also uses the word ‘compelling’. This provides:
‘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 refuge 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. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they deem necessary [my emphasis].’
The parties made their submissions on this matter in writing after the hearing. Mr Southey argued that it was notable that the use of the same word ‘compelling’ in Articles 28 and 32 of the Refugee Convention showed that in both contexts there was expected to be a relatively high threshold. The CJEU’s conclusion in HT as to the relatively low threshold implied by the word ‘compelling’ was undermined because it had not taken account of the use of the same word in Article 32. I disagree. The process of reasoning which I have summarised above, is still sound. Furthermore, I consider that Mr Blake makes the reasonable point that, while the Refugee Convention in Article 32 sets procedural requirements which must normally be met before a refugee is expelled, it is silent as to any similar procedural requirements before a travel document is refused. That is a further pointer as to the relative importance of this right among the package of rights which the Convention affords to refugees.[59]Mr Southey contended that HT supported the Claimant’s case since the CJEU had referred in the course of its judgment to the rights of EU nationals to free movement under Directive 2004/38 (the Free Movement Directive). I do not accept that the Court’s references to this Directive help the Claimant. The Court made two points at [78]. First, rights of free movement under the Free Movement Directive can be restricted in the interests of a Member State’s internal or external security. In my view, the Court was saying no more than refusal of a residence permit under the Qualification Directive could likewise be justified by reasons of internal or external security concerns. Its second point was to emphasise that, by Article 28(3) of the Free Movement Directive an EU citizen who had resided for the previous 10 years in another Member State could only be expelled if there are ‘imperative grounds of public security’. As the Court said, this required a particularly high degree of seriousness. It had no equivalent in the Qualification Directive (certainly not so far as decisions regarding residence permits were concerned, or, I would add, so far as decisions regarding a travel document were concerned).[60]Furthermore, as Mr Blake observed, before a Member State withdraws refugee status, it must follow the procedure set out in the Procedures Directive (Directive 2005/85/EC) Article 38. There is nothing equivalent prescribed for the refusal of a travel document.[61]None of this means that fairness will be a matter of indifference to the Court which considers the Claimant’s substantive challenge. The Claimant has been told something of the grounds on which the decision was taken. The Special Advocates will represent his interests in any closed session. Because of a closed material procedure direction which has been made, the disclosure obligations on the SSHD in closed are somewhat greater than would otherwise be the case (see SSHD v Special Immigration Appeals Commission [2015] EWHC 681 (Admin) [2015] 1 WLR 4799 Div Ct.). The Special Advocates are inhibited in what they can communicate to the Claimant, but he is free to pass whatever information he wishes to them in accordance with CPR r.82.11(6). This procedure has inherent limitations, but it has been considered consistent with the requirements of fairness, Article 6 and/or Article 47 for the purposes of litigating claims of race discrimination, deprivation of citizenship and many other issues. In my judgment the Claimant has not established that he is entitled to more in his litigation challenging the refusal of the SSHD to issue him with a travel document.[62]Mr Southey invited me to refer one or more questions to the CJEU. That seems to me to be unnecessary. Although there is no case precisely on the point, that is not unusual. The previous authorities from the CJEU itself and the UK courts enable me to reach a clear conclusion that this is not one of those cases where either of the Claimant’s procedural grounds succeeds. In saying that I have proceeded with the caution which Sir Thomas Bingham had stressed was necessary in regard to European law. There is also a second reason for not making a reference. I have been considering only the procedural parts of the Claimant’s judicial review. A reference should only be made when any necessary factual issues have been resolved.

Conclusion

[63]Having reviewed the matter, I consider that the ‘disclosure before decision’ ground is not reasonably arguable. I refuse permission to apply for judicial review on that ground. The ‘disclosure in litigation’ ground is reasonably arguable and, for that, I grant permission to apply for judicial review. However, for the reasons which I have set out neither ground can succeed in substance. It follows that the Claimant’s procedural grounds for seeking judicial review are refused.

Further progress of the claim

[64]As I have noted above, Mr Southey argued that it was only Mr Blake’s assertion that the SSHD was unable to disclose as much as she had in January 2015 when the decision to refuse the Claimant a travel document was first made in December 2013 or when more attenuated reasons were given in January 2014. Further evidence to support it would be necessary to be given in a closed session. In the event, I do not consider that it is necessary to resolve this aspect. Even if closed evidence could not make good Mr Blake’s proposition, the position became academic in January 2015 when the further information was provided and the SSHD invited the Claimant to make submissions and said she was willing to reconsider the refusal.[65]Mr Southey raised the possibility that a review of the declaration under Justice and Security Act 2013 s.7 might be necessary. He did not make an application in that regard at the hearing. The Special Advocates have not done so. Section 7(3) requires there to be a formal review once the disclosure exercise has been completed. CPR r.82.30 provides for the appropriate procedure. I shall invite the parties to make submissions in writing as to how this should now be progressed. Indeed, those submissions should address more generally what further directions should be given for the remainder of the claim.

Cited in 1 later judgment