AZ (Syria) v Secretary of State for the Home Department

The disclosure required by Article 47 of the Charter of Fundamental Rights of the European Union is context-specific. It depends upon the nature and impact of the decision, its context, and the legal rules governing it. The requirement in ZZ to disclose the essence of the grounds was conditioned by the foundational free-movement right and express procedural safeguards in the Citizenship Directive. It does not apply to every EU-law right.

A refusal of a refugee travel document on national-security grounds is not comparable with interference with free movement, severe restrictions on liberty, asset freezing, or an order preventing a bank from doing business. Open reasons, together with a closed material procedure and special advocates, satisfied Article 47 in this context.

AZ, a Syrian refugee, sought a Convention Travel Document so that he could travel outside the United Kingdom. The Secretary of State initially refused it on national-security grounds, stating that AZ was assessed to hold Islamic extremist views and to wish to travel to Syria to fight. A restricted document for travel to Sweden was later issued, but the refusal of an unrestricted document was confirmed personally by the Secretary of State.

AZ brought judicial review. A closed material procedure was authorised under the Justice and Security Act 2013. Nicol J dismissed the procedural disclosure challenge and refused permission on a proposed prior-disclosure ground: [2015] EWHC 3695 (ADMIN). Substantive grounds remained unresolved. The appeal concerned whether Article 47 required disclosure of the essence of the national-security case, whether disclosure was required before the decision, and whether a reference to the Court of Justice was necessary.

1. Appeal dismissed. The judge was correct to reject the claim that Article 47 of the Charter of Fundamental Rights of the European Union required the ZZ standard of disclosure in this judicial review.

2. Article 47 does not prescribe a uniform minimum of disclosure for every claim involving an EU-law right. Following the contextual approach recognised in European Commission v Kadi and Kiani v Secretary of State for the Home Department, the required procedure depends on the nature and impact of the decision, the context in which it was adopted, and the governing legal rules.

3. ZZ concerned interference with an EU citizen’s foundational free-movement right. The Citizenship Directive also began with a right to be informed precisely and fully of the grounds, subject to a strictly construed national-security derogation. Those features explained the requirement to disclose the essence of the grounds. They were absent from the Qualification Directive and the Procedures Directive in relation to a Convention Travel Document.

4. Refusal of a Convention Travel Document could substantially inconvenience a refugee and curtail travel. It was nevertheless not comparable, for disclosure purposes, with free movement, a control order approaching deprivation of liberty, asset freezing, or a measure which prevented a bank from doing business. The open reasons given to AZ, supplemented by the closed material procedure and special advocates, satisfied Article 47. The comparison with the different standards governing residence permits, refugee status and refoulement was supportive but neither central nor necessary.

5. The proposed duty of disclosure before the decision was unarguable. It would be illogical to require advance disclosure of national-security material which could not be required in later litigation concerning that decision. The court therefore did not decide the wider scope of any EU-law duty of good administration.

6. A reference to the Court of Justice was unnecessary. The governing EU disclosure principles were already articulated, and novelty in their application did not warrant a reference. Disclosure was also not dispositive of the outstanding judicial review.

• Court of Appeal (Civil Division): dismissed AZ’s appeal and upheld the rejection of the procedural disclosure grounds: [2017] EWCA Civ 35 .
• High Court, Administrative Court: Nicol J dismissed the judicial review claim on the litigation-disclosure ground and refused permission on the prior-disclosure ground. Substantive grounds of challenge remained to be heard: [2015] EWHC 3695 (ADMIN).