Court of Appeal rules that SIAC’s reliance on secret evidence in national security cases concerning EU citizens is unfair.
Published: January 24 2014
PLP's client ZZ has won an appeal in the Court of Appeal and judgment was handed down today (24 January 2014). The Court of Appeal ruled that the Special Immigration Appeal Commission’s (SIAC) reliance on secret evidence, in cases concerning EU citizens who have exercised rights of free movement in the UK, in deciding whether an EU citizen poses a risk to national security, fails to comply with EU law and that as a bare minimum, the essence of the grounds of the national security case must always be disclosed to the EU citizen.
In this case SIAC concluded that in September 2006 the Home Secretary was justified in excluding ZZ, a French citizen who had permanent residence in the UK, from the UK and separating him from his British family because he was a risk to national security. However the basis of the case against ZZ was not disclosed to him so he has never been able to respond to the Home Secretary’s allegations about his conduct. The Court of Appeal, following its reference of this issue to the Grand Chamber of the Court of Justice of the European Union, held that where an EU citizen who has exercised rights of free movement in the UK is then excluded from the UK on the grounds of national security, the evidence against him should be disclosed to him, but where that is not possible on account of national security considerations then in all cases the essence of the grounds of the national security case must be disclosed – or, in other words, a gist of the evidence must be provided as a minimum.
The Court of Appeal has ordered that the appeal must be remitted to SIAC for a hearing on the basis of the correct position in EU law. The Home Secretary may appeal the decision to the Supreme Court.
Counsel instructed for ZZ in the Court of Appeal were Hugh Southey QC and Nick Armstrong of Matrix Chambers. ZZ’s counsel in the Court of Justice of the European Union were Hugh Southey QC and Simon Cox of the Open Society Justice Initiative.
The full judgement can be read here.