AZ v Secretary of State for the Home Department

A refugee’s entitlement to a travel document under the Geneva Convention on Refugees and the Qualification Directive may be withheld where sufficiently serious national-security reasons exist. The word “compelling” must be construed purposively and in context; it does not necessarily impose the highest possible threshold.

The general principle of good administration may require an applicant to be alerted to areas of concern, but that duty is qualified by national security. An opportunity to make representations during a later reconsideration may satisfy fairness. Article 47 of the Charter does not create a universal right to disclosure of an irreducible minimum of national-security material. The adequacy of disclosure depends on the nature of the right, the statutory and legal framework, and the circumstances of the case.

The claimant, a recognised Syrian refugee, challenged the Secretary of State’s refusal to issue him with a general travel document on national-security grounds. The refusal was made under article 28 of the Geneva Convention on Refugees, article 25 of the Qualification Directive and Immigration Rules r 344A(i).

He advanced two procedural grounds: that he should have been alerted to the national-security concerns before the decision, and that he had not received sufficient disclosure to challenge the decision effectively in the judicial-review proceedings. The claim proceeded under a closed material procedure pursuant to section 6 of the Justice and Security Act 2013. The central questions concerned the scope of the general principle of good administration and Article 47 of the Charter.

1. Disclosure before decision. Common-law fairness may require an applicant for an important right to be alerted to the areas of concern relevant to the application. The duty is limited and qualified. Where disclosure would harm national security, the Secretary of State may indicate only that national-security considerations prevent fuller disclosure. The application form did not alert the claimant to the particular concerns, but the later disclosure, invitation to make representations and offer to reconsider were capable of curing the procedural deficiency. The first ground was therefore not made out.
2. Disclosure in litigation. Article 47 of the Charter requires effective judicial protection, but it does not impose a universal rule that the essence or irreducible minimum of a national-security case must always be disclosed. The issue must be assessed in the specific context, including the nature of the act, the context in which it was adopted and the legal rules governing it.
3. The refusal of a travel document was materially less serious than the interference with free movement in ZZ (France) v Secretary of State for the Home Department, control orders in AF v Secretary of State for the Home Department (No 3), asset freezing in European Commission v Kadi (No 2), or the closure of a bank’s business in Bank Mellat v HM Treasury (No 2). The Qualification Directive contained no comparable express right to be informed precisely and in full of the grounds. The closed procedure, including representation by Special Advocates, was sufficient in the circumstances.
4. The expression “compelling reasons” in article 25 of the Qualification Directive did not require the same level of seriousness as the grounds permitting refoulement. Refusal of a travel document was a less serious interference and required reasons reaching a sufficient level of seriousness, but not necessarily the particularly strict threshold suggested by the word considered in isolation.
5. Permission was refused on the disclosure-before-decision ground and granted on the disclosure-in-litigation ground. Neither ground succeeded substantively. The procedural challenges were refused. No reference to the CJEU was necessary.

First-instance judicial review in the Administrative Court. The judgment describes earlier proceedings begun in the Upper Tribunal, but no prior merits decision is stated.