Court of Appeal decline to consider scope of ‘ZZ disclosure’ on case’s third and probably final visit to the Court

ZZ has dual nationality, Algerian and French. He was married to a UK citizen in 1990 and lived in the UK with their eight children until August 2005 when he left to visit Algeria. On 25 August 2005 following his departure the Secretary of State for the Home Department (SSHD) cancelled his indefinite leave to remain in the United Kingdom and excluded him from the United Kingdom.  His application for naturalisation was refused on 30 August 2005. 

A little over a year later, on 18 September 2006, the Appellant arrived at Heathrow from Algeria, presenting his French passport.  He was refused admission to the country and removed to Algeria.  His challenge was to the refusal to admit him to the UK on that date.

His appeal was heard by the Special Immigration Appeals Commission (SIAC) in July 2008 and was refused. The key part of the judgment as far as the appellate process that was to follow was at para 18 –

“As will be apparent from the brief analysis of the open case against ZZ and of his response to it, neither really engages with the critical issues, which we have determined principally by reference to the closed material. If MB requirements apply to these proceedings and they require that the gist of the case against ZZ is disclosed to him, they have not been fulfilled.” 

ZZ appealed SIAC’s judgment on three grounds. Two related to matters of domestic law and the third related to the level of disclosure ZZ was entitled to as a citizen of an EU member state – France. It was submitted that he was entitled to the ‘essence of the grounds’ against him which he had not been provided with. The Court of Appeal – [2011] EWCA Civ 440 – rejected the appeal in respect of the two domestic grounds but agreed that a reference should be made to the European Court of Justice in the following terms in respect of the third –

“Does the principle of effective judicial protection set out in Article 30(2) of Directive 2004/38, as interpreted in the light of Article 346(1)(a) of the Treaty on the Functioning of the European Union, require that a judicial body considering an appeal from a decision to exclude a European Union citizen from a Member State on grounds of public policy and public security under Chapter VI of Directive 2004/38 ensure that the European Union citizen concerned is informed of the essence of the grounds against him notwithstanding the fact that the authorities of the Member State and the relevant domestic court, after consideration of the totality  of the evidence against the European Union citizen relied upon by the authorities of the Member State, conclude that the disclosure of the essence of the grounds against him would be contrary to the interests of national security?”

The Court of Justice found that the ‘essence of the grounds’ did need to be disclosed –

69.  In the light of the foregoing considerations, the answer to the question referred is that Articles 30(2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence.” (emphasis added)

The case then returned to the Court of Appeal in 2014 – [2014] Q.B. 820 – where the Court considered whether the case should be remitted to SIAC and if so what should be the test when considering ‘ZZ’ disclosure, per Richards LJ –

37. In any event, it is clear from what it said about the failure to meet MB requirements or to meet a requirement to disclose the gist of the case that in SIAC’s view the essence of the grounds relied on by the Secretary of State had not been disclosed to the appellant.  SIAC was in an unrivalled position to form a view on that matter, being familiar from other contexts with disclosure of the essence or gist of a case and having considered the entirety of the material in the particular case.  But we have also been able to form a view of our own.  We have read SIAC’s closed judgment as well as its open judgment and we heard short submissions from Mr Goudie as special advocate and from Mr Eicke on behalf of the Secretary of State in closed sessions at the hearing of the appeal.  All that has served amply to confirm SIAC’s view that the essence of the case against the appellant was not disclosed to him.  It is sufficient to state that conclusion in this open judgment, without the need for any separate closed judgment on the appeal to this court.

38. Accordingly, I would allow the appeal and remit the case to SIAC for fresh determination, applying the principles in the CJEU’s judgment.

39. For that purpose I do not think it necessary to elaborate on what is required by way of disclosure of “the essence” of the grounds.  As I have said, the concept is one with which SIAC is familiar from other contexts….” (emphasis added)

SIAC considered the case for the second time in late 2014 and handed down its judgment on 1st April 2015 making the following Open conclusions in respect of the national security case against ZZ –

92. In relation to the national security case, the great amount of the evidence in OPEN and CLOSED predates the 2006 decision.  The exception is the evidence from the Appellant himself.  Insofar as we are able to judge his credibility, that assists in relation to the decision in 2006.  We also consider his age, and his more recent history.

93. We are confident that the Appellant was actively involved in the GIA, and was so involved well into 1996.  He had broad contacts with GIA extremists in Europe.  His accounts as to his trips to Europe are untrue.  We conclude that his trips to the Continent were as a GIA activist.  He was not frank about this.

94. Subject to the matter of being in a position to obtain weapons, we have no evidence of continuing Islamist activity after 1996.  We conclude it is likely ZZ discontinued active involvement in the GIA in or around mid/late 1996.  He kept up with some Islamists, including notably Boutemine.  However, there is no evidence that his contact with Boutemine involved activity prejudicial to national security in the late 1990s or after.

95. Until at least 1996, the Appellant maintained an association with Abu Qatada, including reasonably close contact, and at least some sympathy of ideas.  He was not frank about this.

96. We conclude, in the CLOSED case, that the Appellant was on more than one occasion in a position to obtain weapons, which would have been obtained for use in an Islamist extremist context.

97. There is no evidence of further Islamist activity on the part of the Appellant.  The absence of evidence is not conclusive evidence of the absence of such activity.  However, we consider the Appellant’s age and history over the last decades.  We consider it unlikely he has been active in any Islamist organisation since 1996.”

Despite those findings for reasons set out at para 99 ZZ was successful in his appeal.

The SSHD sought to appeal SIAC’s judgment on the basis that the Commission had erred in taking into account post decision material contrary to section 85(4) of the Nationality, Immigration and Asylum Act 2002. The SSHD was granted leave on that single ground and cross-appeals followed in Open and Closed on behalf of ZZ including as to whether he had been provided with the ‘essence of the grounds’ against him.

The case came back before the Court of Appeal for the third time on 8th February 2017, but, crucially post the granting of leave and prior to the hearing ZZ had been re-admitted to the United Kingdom on 18th August 2015.

The Court raised whether in those circumstances the appeal was academic and considered the recent judgment of Hamnett v Essex County Council [2017] EWCA Civ 6 before declining to hear further argument – see para 19.

The Court did however give an insight in its judgment into what its position might have been on the SSHD’s appeal in respect of section 85, see para 26.

The Court did not go that far in respect of the disclosure issue, but, at para 11 highlighted a key paragraph from the previous judgment of the Court – 

11. On that occasion, in observations which, with respect, strike me as having great force, Christopher Clark LJ said (at [41]):

‘… As Richards LJ observes the Court of Justice does not say in terms what is to happen if the essence of the grounds cannot be disclosed without also disclosing the confidential evidence. Moreover, whilst it contemplates [2013] QB 1136, para 66 that in certain cases disclosure of the evidence is liable to compromise state security in a specific manner, it does not in the preceding paragraph consider the position if disclosure of the essence might have that effect, which appears to me a possible circumstance….’ 

Doubtless, these unresolved difficulties, arising from the CJEU judgment, will need to be addressed but they are for another day and not for this case.” 

It is perhaps understandable that the Court was unwilling to grapple with the cross-appeal as to whether ZZ had been disclsoed the ‘essence of the grounds’ against him, especially given the potential quandary raised by Clarke LJ, when it did not have to and so the scope of ZZ disclosure will need to continue to be considered in other cases rather than in ZZ’s own case.

Martin Goudie QC appeared as a Special Advocate for ZZ throughout his appeals before SIAC and the Court of Appeal. 

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