ZZ v Secretary of State for the Home Department (Rev 1)

Article 6 ECHR does not apply to decisions concerning entry, stay or deportation of aliens. In exclusion proceedings under Directive 2004/38/EC, the criminal standard of proof should not be transplanted to the assessment of imperative public-security grounds. The tribunal must evaluate the evidence and risk in context and apply the Directive’s exacting proportionality requirements. A non-UK Union citizen cannot rely on equal-treatment provisions to claim the procedural position of a UK national, whose right of entry is inalienable. The majority considered it reasonably arguable that effective judicial protection may require disclosure of the essence of the case despite state-security interests. The question was referred to the CJEU under TFEU article 267. The remaining grounds of appeal failed.

The appellant, a dual Algerian and French national, had been married to a British citizen since 1990 and had eight children. After travelling to Algeria, he was excluded from the United Kingdom on national-security grounds and refused admission under regulation 19(1) of the Immigration (European Economic Area) Regulations 2006. His appeal under regulation 28 was certified and transferred to the Special Immigration Appeals Commission, which dismissed it in open and closed judgments dated 30 July 2008.

He appealed under section 7 of the Special Immigration Appeals Commission Act 1997. The issues were whether EU law required disclosure of the gist of the closed case, whether the refusal was discriminatory, what standard of proof applied, and whether SIAC gave adequate reasons. The central unresolved issue was whether effective judicial protection under the Citizens Directive required disclosure of the essence of the case despite state-security interests.

Disposition. The Court of Appeal referred the EU-law disclosure question to the CJEU. The remaining grounds of appeal were rejected.

1. Disclosure and preliminary reference. Maurice Kay LJ considered that Article 47 of the Charter could not create disclosure rights in an area where national security was the sole responsibility of Member States under the Treaty on European Union and article 346 of the Treaty on the Functioning of the European Union. He regarded the SIAC procedure as domestic rather than an implementation of EU law. Carnwath and Moses LJJ considered the contrary view reasonably arguable. The interaction between the security exception in article 30(2) of Directive 2004/38/EC and the requirement of effective judicial protection was not acte clair. A reference was therefore required under article 267 TFEU.
2. Equal treatment. Article 24(1) of the Citizens Directive did not make a French national’s position comparable with that of a UK national. A UK national has an inalienable right to enter and live in the United Kingdom, whereas another Union citizen’s rights are subject to Treaty and secondary-law limitations, including exclusion on public-security grounds. The discrimination ground therefore failed.
3. Standard of proof. The criminal standard was not appropriate for the assessment of whether conduct constituted a genuine, present and sufficiently serious threat justifying imperative grounds of public security. The issue required an evaluation and judgment of risk, taking account of the security interest and the serious consequences for the individual. The exacting Directive threshold nevertheless had to be satisfied.
4. Reasons. SIAC’s open and closed judgments had to be read together. They contained sufficient findings and reasoning to establish the threat, weigh the very heavy family circumstances, and conclude that the imperative grounds of public security outweighed them. Any possible error in the standard used in the open judgment was immaterial because SIAC had determined some essential facts to the criminal standard in the closed judgment.

• Court of Appeal (Civil Division) — On appeal under section 7 of the Special Immigration Appeals Commission Act 1997, the court referred the EU-law disclosure question to the CJEU and rejected the other grounds.
• Special Immigration Appeals Commission — Dismissed the appeal in open and closed judgments dated 30 July 2008.