Security concerns don’t trump basic procedural rights

Summary

The Court of Justice of the European Communities (EU Court of Justice) has held that a person refused entry to an EU state on security grounds has a fundamental right to receive reasons for the decision. Notwithstanding security considerations, EU states have a core minimum obligation to provide enough information to enable the affected person to understand the basis of the decision and prepare a defence.  

Facts

A key feature of the European Union is freedom of movement for residents and their families between states. This is protected under the Charter of Fundamental Rights of the European Union (the Charter) and a separate EU Directive to member states (2004/38/EC). States do, however, retain discretion to refuse entry at the state’s borders on public policy, security or health grounds under the same EU Directive.

Under the Directive, a state that refuses to allow a EU resident or their family to enter that country is required to inform the person “precisely and in full” of the grounds on which the decision was made unless this would be “contrary to State security interests”. The Directive also provides that all persons refused entry in these circumstances must have the right to access judicial and administrative review procedures in the member state so they can challenge the legality of the decision and the facts relied on to come to that decision.

ZZ, a dual French and Algerian citizen with permanent UK residency, was denied re-entry to the UK after he travelled to Algeria. He was not informed “precisely and in full” of the reasons for the decision. ZZ appealed the Secretary of State’s decision to the UK’s Special Immigration Appeals Committee (SIAC). SIAC, in its “open” decision, acknowledged that ZZ had received “little of the case against” him, which effectively prevented him preparing an appeal and defence.

Two people known as Special Advocates, appointed under UK legislation to represent ZZ’s interests, were given access to more information during a “closed” hearing. While those Special Advocates were tasked with assisting ZZ, they were not allowed to discuss the matter with ZZ or obtain instructions after viewing the confidential information that was not disclosed to ZZ.

ZZ appealed SIAC’s decision affirming the Secretary of State’s original decision to the UK Court of Appeal. The UK Court of Appeal held that it was open to SIAC on the basis of available information to decide that ZZ should not be granted entry to the UK on public policy grounds, but queried whether failure to disclose any substantive reasons for the decision to ZZ breached the authority’s obligations under the EU Directive. 

The UK Court of Appeal referred this question for a preliminary ruling to the EU Court of Justice, which has jurisdiction to issue rulings to ensure that all states interpret and apply EU laws and directives consistently. The UK Court asked if the Directive allows states to derogate from the rule that persons will be told “precisely and in full” about the reasons for refusing entry where it is contrary to state security interests, does that allow a state to tell the person nothing? Alternatively, is there an obligation to provide at least some information? If so, how much?

Decision

The EU Court of Justice affirmed that EU Directives must be interpreted and applied consistently with the European Charter of Human Rights, which provides that every person whose right to freedom of movement is violated is entitled to an effective legal remedy. Based on existing jurisprudence, the EU Court of Justice affirmed that the fundamental right to an effective legal remedy is undermined if the parties have not received reasons for decisions affecting their rights.

While it may be reasonable for the state not to disclose its reasoning “precisely and in full” for security reasons, the EU Court of Justice held this does not entitle a state to withhold all information about the reasons for its decision. Any limits on the right to pursue an effective legal remedy, including access to reasons or evidence, must be proportionate and go no further than strictly necessary to protect state interests. States have a core minimum obligation to disclose the “essence” of the grounds of the decision.

The EU Court of Justice also held that SIAC or the relevant decision-maker has the burden of proving that disclosure would compromise state security. It cautioned that the UK Court of Appeal could not defer to SIAC’s own assessment of what could be disclosed because there was every possibility that SIAC could get it wrong. The UK Court has an obligation to receive and review the evidence underpinning the decision not to disclose reasons.

In the event the UK Court of Appeal determines that state security does not prevent full disclosure of the grounds for the decision, the EU Court of Justice stated that it was incumbent on the UK Court to give the Secretary of State and his department the opportunity to disclose the grounds for the decision in accordance with the Directive and the Charter.

If they continue to withhold reasons the, UK Court of Appeal should make a finding about the legality of the decision solely on the information that was made available to ZZ, excluding any evidence that was not provided to ZZ.

Separate to the core minimum obligation to provide reasons, the EU Court of Justice held that throughout the judicial review proceeding, restrictions on access to documents and evidence should also go no further than strictly necessary to protect state security interests and balance the right to effective judicial protection.

Commentary

This is the latest in a series of cases in which regional and international human rights bodies have found there is a core minimum obligation under relevant human rights instruments to provide sufficient information to persons detained or refused entry to a state to enable them to understand the basis on which it was made and mount a defence (see for instance the UN Human Rights Committee in Caldas v Uruguay, CCPR/C/OP/2 (1990)).

This core minimum obligation is not currently met in Australia. Refugees who are given negative security assessments by ASIO are indefinitely detained without any statutory right to adequate reasons and without access to binding merits review. Profoundly important decisions continue to be made through a process that is closed, secretive and insulated.

Since October 2012 a non-binding review of ASIO security assessments may be conducted by the retired Federal Court Judge Margaret Stone. While the Stone review is a step in the right direction, it does not guarantee the right to receive adequate reasons explaining the basis on which the decision was made. When the review is conducted, ASIO is required to provide an unclassified version of their reasons to the reviewer on the understanding it may be provided to the affected person. Because there is no core minimum obligation under Australian domestic legislation, the obligation to provide an unclassified statement of reasons may be reduced to nothing if ASIO determines that disclosing even the essence of the grounds for the decision would be contrary to national security interests.

The need for greater transparency and legislative protection of the fundamental rights to a fair trial and access to a judicial remedy in these situations was noted in the UN High Commissioner for Refugees recommendations to the Australian Independent Review of the Intelligence Community in 2011. The UNHCR adopted a similar approach to the EU Court of Justice noting that the “point of departure is that open disclosure of all prejudicial information should be encouraged and the use of classified information in determinations which affect refugee status or associated rights should only be maintained on an exceptional basis.” Even where national security justifies limitations on disclosure the UNHCR said, the affected person “should be provided as much information as possible to ensure a fair determination process in accordance with natural justice.”

This decision is available online at: http://www.bailii.org/eu/cases/EUECJ/2013/C30011.html

Madeleine Forster is a lawyer seconded from DLA Piper to the Human Rights Law Centre