Case Watch: National Security, Secrets, and Deportation

In an important judgment last week, a Grand Chamber of the Court of Justice of the European Union ruled that an EU citizen can only be deported for reasons which have been disclosed to him.

The CJEU ruling was given at the request of the English Court of Appeal in an appeal by Mr. ZZ, a French citizen. Having lived in the UK for 10 years with his British wife and children, ZZ was refused re-entry on his return from a trip abroad. He was accused of involvement in an Algerian armed group, but not prosecuted. Instead, the British Home Office made an order excluding him from the UK. ZZ appealed to the UK’s Special Immigration Appeals Commission which held secret hearings in the absence of ZZ and his lawyers. The commission dismissed the appeal for reasons it refused to disclose to ZZ.

ZZ appealed to the Court of Appeal, arguing that his right to a fair trial under Article 47 of the EU Charter of Fundamental Rights was breached if he did not know at least the “essence” of the UK’s grounds for deporting him. The absolute right to know the essence had been accepted as part of article 5 of the European Convention on Human Rights by the European Court of Human Rights in the A v UK case—but that related to detention not deportation. The Home Office argued EU law makes national security the sole responsibility of the UK and that member states cannot be expected to disclose information contrary to national security, according to article 4(2) of the Treaty of European Union and article 346(1)(a) of the Treaty on Functioning of the European Union. The Court of Appeal decided by a 2:1 majority to refer a question of law to the CJEU. The UK Supreme Court refused to hear the Home Office’s appeal from that decision.

The CJEU upheld ZZ’s arguments, making several important new rulings. This judgment sets high minimum standards for deportation proceedings in EU national courts and courts in other European states subject to the same laws. First, the court ruled that national security could not be used to deny a deportee the essence of the right to reasons and to appeal under articles 30 and 31 of the EU Citizens’ Directive 2004/38. Second, based on its reasoning in the Kadi I judgment, the court stated that the national court must have power to examine all the grounds and related evidence against the deportee. Third, the national court can, in exceptional cases, order non-disclosure of grounds and evidence to the deportee, if the state proves that disclosure would in fact compromise state security and be disproportionate. Fourth, that the essence of the grounds for deportation must always be disclosed to the deportee in the appeal proceedings. This disclosure must be made in a manner that respects the confidentiality of the underlying evidence.

While the judgment relates to deportation of EU citizens and their family members, the court’s reasoning implies the same approach wherever EU rights and fundamental rights are at issue. The court did not accept the distinction—proposed by the Advocate-General—between the right to appeal a deportation decision and the right to challenge detention (as in A v UK) or interference with property rights (as in the Kadi proceedings). Also, the court drew no distinction between direct actions before EU courts and cases in national courts under EU law. This sets the stage for Kadi II where the Grand Chamber will rule whether EU courts can require sight of all evidence for decisions under UN sanctions against suspected terrorism and disclosure of the essence to the suspect.