ZZ v Secretary of State for the Home Department

Where a decision restricting a Union citizen’s free movement rights is based on public security, the person concerned must always be informed of the essence of the grounds for the decision. This minimum requirement is not displaced by national-security concerns. Related evidence may be withheld where strictly necessary to protect national security, but the manner of explaining the grounds must respect its confidentiality. The reviewing court must provide effective judicial protection and preserve the person’s opportunity to present an effective defence.

The Secretary of State refused ZZ admission to the United Kingdom under regulation 19(1) of the Immigration (European Economic Area) Regulations 2006 on public-security grounds. SIAC dismissed his appeal after relying principally on closed material, finding that the essence or gist of the case had not been disclosed. The Court of Appeal referred an EU-law question to the CJEU, which gave judgment in Case C-300/11, ZZ v Secretary of State for the Home Department, reported at [2013] 3 WLR 813. The issue on the resumed appeal was whether disclosure of the essence of the grounds was required even where national security was said to prevent it.

1. Appeal allowed and case remitted. Richards LJ gave the lead judgment. Christopher Clarke LJ and the Master of the Rolls agreed. The case was remitted to SIAC for fresh determination under the principles stated by the CJEU.
2. Articles 30(2) and 31 of the Directive 2004/38/EC, read with Articles 47 and 52(1) of the Charter of Fundamental Rights of the European Union, require disclosure of the essence of the grounds on which a decision under Article 27 is based. The CJEU’s phrase “in any event” establishes an irreducible minimum. National-security considerations cannot justify withholding that essence.
3. The requirement differs from the treatment of related evidence. Evidence may be withheld where disclosure would compromise national security, but any failure to disclose grounds or evidence must be limited to what is strictly necessary. The manner of informing the person must respect the necessary confidentiality of the evidence.
4. Judicial review must be effective. The national court must independently examine the existence and validity of the national-security reasons, the legality of the exclusion decision, and all relevant grounds and evidence. The procedure must preserve the adversarial principle and the person’s opportunity to present an effective defence to the greatest possible extent.
5. SIAC’s open judgment recognised that the gist of the case had not been disclosed. Having considered the closed judgment and heard closed submissions, the Court of Appeal confirmed that the essence of the case had not been provided. Secondary arguments concerning balancing and the weight of withheld material were left for SIAC on rehearing.

1. Court of Appeal (Civil Division) — The court dismissed the domestic-law grounds but referred an EU-law question to the CJEU: [2011] EWCA Civ 440 .
2. CJEU — The preliminary reference was answered in Case C-300/11, ZZ v Secretary of State for the Home Department, reported at [2013] 3 WLR 813.
3. Court of Appeal (Civil Division) — Appeal allowed and case remitted to SIAC for fresh determination.