United Kingdom / Court of Appeal, Civil Division / T3/2016/0278 AZ v Secretary of State for the Home Department

Key facts of the case: 

AZ was a refugee present in the UK who had been refused a Convention Travel Document to visit his sick father in Jordan. The Secretary of State did not give reasons for her decision to issue this refusal. Once judicial review proceedings were issued, the Home Office wrote to AZ informing him that his request had been denied on national security grounds, as he was assessed to hold Islamic extremist views and had expressed a desire to travel to Syria to engage in fighting. AZ’s claim for a Convention Travel Document was pursuant to Council Directive 2004/83/EC (the Qualification Directive), superseded by 2011/95/EU, which did not include procedural protections. This adopted the principles of Article 28 of the Geneva Convention, which equally did not include explicit procedural protections. This was in contrast to the expulsion of refugees, dealt with under Directive 2004/38/EU (the Citizenship Directive), based on Article 32 of the Geneva Convention, both of which did contain explicit procedural protections. A previous case under the Citizenship Directive, ZZ (France) v Secretary of State for the Home Department (C-300/11), relying on Article 47 of the Charter, had found that ZZ was entitled to be given the ‘essence’ of the grounds upon which the decision against him was made (ZZ disclosure). In that case, ZZ had been refused entry into the UK.

Outcome of the case:

The appeal was dismissed. The right to a Convention Travel Document in the present case was not of the same importance as the freedom of movement rights in question in ZZ. ZZ had not established a general requirement for a certain standard of proof and was limited to its own specific circumstances, concerning a right of paramount importance. The procedure in the present case therefore satisfied the requirements of Article 47. Further, ZZ’s case concerned the Citizenship Directive, which, in contrast to the Qualification Directive, did contain explicit procedural safeguards and a right to be informed of the reasons for decisions. This Directive was based on Article 32 of the Geneva Convention, which equally had procedural safeguards. The Court of Justice of the European Union had thus interpreted the provisions in the light of Article 47 of the Charter in establishing that ZZ was entitled to the ‘essence’ of the grounds for the decision against him. Such interpretation was not applicable to the Qualification Directive. This case was therefore distinguished from ZZ as it concerned a comparatively less important right under EU law and was based on a directive which did not contain explicit procedural safeguards.

Paragraphs referring to EU Charter (original language): 

“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:

  1. 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;
  2. Whether AZ was entitled by virtue of EU law to the same level of information in advance of the decision being taken;
  3. Whether this court should refer the question of his entitlement to disclosure to the Luxembourg Court”. [Para. 1]

“Article 18 of the Charter guarantees the right to asylum with due respect for the rules of the Geneva Convention”. [Para. 10]

“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: … [goes on to quote Article 47 in full]”. [Para. 12]

“In support of his claim for disclosure before the decision was made, AZ relies upon article 41 of the Charter: … [goes on to quote Article 41 (1), (2) (a) (b) and (c)]. The Charter contains a number of general provisions, including article 52, which provides … [goes on to quote Article 52 in full]”. [Para. 13]

“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)”. [Para. 14]

“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”. [Para. 16]

“The judge [in the previous court] accepted the broad thrust of the Secretary of State's argument. His reasoning may be distilled to the following conclusions:

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).

… [other conclusions were mentioned that did not concern the Charter].” [Para. 17]

“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: [goes on to quote judgment]”. [Para. 20]

“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”. [Para. 21]

“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’”. [Para. 22]

“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”. [Para. 27]

“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”. [Para. 29]

“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”. [Para. 37]

 “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”. [Para. 39]

“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”. [Para. 40]

 

Language: 
English
Deciding body (original language): 
Court of Appeal (Civil Division)
Language: 
English