In this judgment the Court interpreted right to defence in cases involving state security. The Court interpreted relevant provisions of the Directive 2004/38 in the light of Article 47 of the Charter
ZZ has dual French and Algerian nationality. He has been married to a British national and the couple had eight children. He was granted a right of permanent residence in the United Kingdom. When he left UK, British authorities decided to cancel his right of residence and to exclude him from the United Kingdom on the ground that his presence was not conducive to the public good. When he travelled back to the UK decision refusing him admission was taken by the UK authorities. Following that decision, ZZ was removed to Algeria.
He appealed against entry refusal decision. As grounds of the decision were not disclosed to ZZ , two special advocates were appointed to represent ZZ’s interests during appeal proceedings. These special advocates had consultations with ZZ based upon the ‘open evidence’.
Subsequently, the information not disclosed to ZZ upon which the decision refusing entry at issue in the main proceedings was based was disclosed to those special advocates, who were from then on precluded from seeking further instructions from, or providing information to, ZZ or his personal advisers without the permission of the appeal body. Subject to those limitations, the special advocates proceeded to represent ZZ’s interests before SIAC as regards that ‘closed evidence’.
Appeal was dismissed on the basis that that decision was justified by imperative grounds of public security. Appeal body gave an ‘open’ judgment and a ‘closed’ judgment, the latter being provided to ZZ’s special advocates. In open judgment it was held in particular, that ‘little of the case against’ ZZ had been disclosed to him and that that which had been disclosed did not concern ‘the critical issues’.
Whether Article 30(2) of Directive 2004/38, read in the light in particular of Article 47 of the Charter, must be interpreted as requiring a national court hearing an appeal of a Union citizen against a decision refusing entry taken under Article 27(1) of that directive to ensure that the essence of the public security grounds which constitute the basis of that decision is disclosed to the person concerned where the competent national authority contends before that court that such disclosure is contrary to the interests of State security.
The court stated that if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information (para 53)
The Court held that in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision by invoking reasons of State security.
The Court stated that in such cases judicial review of the legality of a decision 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.
In this connection, 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 taken is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard
Although the context of this case was deportation, the judgment of the court is expressed in broad terms as regards the basic protection enshrined in Article 47 of the Charter and should be interpreted as having a wide application.
Samantha Knights. Case Comment: ZZ v Secretary of State for the Home Department (C-300/11), available at: https://eutopialaw.com/2013/06/20/case-comment-zz-v-secretary-of-state-for-the-home-department-c-30011/