Brussels, 04/06/2013 (Agence Europe) - A member state must inform the person concerned of the reasons why it has taken a decision to refuse entry to its territory. However, a member state may, so far as it is strictly necessary, refuse to notify the person concerned of its reasons, if there is the risk that disclosure will compromise state security.
In its ruling on Tuesday 4 June (case C-300/11), the Court of Justice of the EU answered a question put to it by the Court of Appeal (England and Wales), calling on it to interpret the directive on the right of stay and free movement in member states for EU citizens (2004/38/EC). The British court had a case referred to it involving a Franco-Algerian national married to a British citizen. After residing lawfully in the UK for 15 years, that Franco-Algerian national left the UK and the secretary of state cancelled his right of residence on the grounds that his presence was “not conducive to the public good”. This decision was upheld by the Special Immigration Appeals Commission (SIAC) after proceedings during which the person concerned was able to consult with his two special advocates only on public evidence. The SIAC dismissed the person's appeal and gave an “open judgment” with summary grounds and a “closed judgment” with exhaustive grounds (the implication of the person concerned in terrorist activities of the Armed Islamic Group), only the first of which was notified to the person concerned, who then appealed against SIAC's judgment to the Court of Appeal. The latter asks to what extent, under the directive, SIAC is obliged to inform the person concerned of the public security grounds which constitute the basis of a decision refusing entry, even if the national authorities, after examining the elements of proof, conclude that there are state security reasons that mean the substance of the reasons for refusing entry should not be disclosed.
The Court finds that, according to the directive, a decision to refuse entry must be notified to the person concerned in writing and in such a way that he is able to comprehend its content and the implications. In addition, the person concerned must be informed, precisely and in full, of the public policy or public security grounds which constitute the basis of the decision, unless this is contrary to the interests of state security. In that context, the grounds for the decision to refuse entry and reasons concerning state security invoked to refuse informing the person concerned of the reasons for that decision must be assessed by a competent legal authority that must, for that, have access to all relevant reasons and elements of proof.
Furthermore, the Court explains, a judge must be entrusted with verifying whether the reasons connected with state security stand in the way of disclosure of those grounds and that evidence. In this connection, the Court of Justice states that the competent national authority must prove that state security would, in fact, be compromised by precise and full disclosure of the grounds to the person concerned. Consequently, there is no presumption that the reasons invoked by a national authority in order to refuse disclosure of those grounds exist and are valid. If the judge concludes that such is not the case, it gives the authority the possibility to disclose to the person concerned the missing evidence and reasons. Nonetheless, when the authority does not authorise disclosure, the judge examines the legality of the decision simply on the basis of the reasons and evidence notified. If, on the other hand, the judge finds that state security is, indeed, at risk if the reasons are disclosed to the person concerned, then judicial review of the legality of the decision refusing entry must be carried out in a “procedure which strikes an appropriate balance between the requirements flowing from state security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary”. In particular, the person concerned must be able to contest the grounds on which the decision in question is based and to put forward an effective defence. That is why the person concerned must be informed “of the essence of the grounds on which a decision refusing entry is based, as the necessary protection of state security cannot have the effect of denying him his right to be heard and, therefore, of rendering his right of redress ineffective”, the Court states.
The Court also points out that the weighing up of the right to effective judicial protection against the necessity to protect the security of the state concerned is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise state security in a direct and specific manner as it may endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities. Finally, the Court explains that the United Kingdom court has the task, firstly, of ensuring that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question, in a manner that takes due account of the necessary confidentiality of the evidence and, secondly, of drawing the appropriate conclusions from any failure to comply with that obligation to inform. (FG/transl.jl)