delivered on 12 September 2012 (1)

Case C-300/11

(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom))

‘Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Decision to exclude a Union citizen from a Member State on grounds of public security — Obligation to inform the citizen concerned of the grounds for that decision — Disclosure contrary to State security — Right to effective judicial protection’

The present reference for a preliminary ruling concerns the interpretation of Article 30(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. (2)

This reference was made in a dispute between ZZ and the Secretary of State for the Home Department (‘the Secretary of State’) concerning the Secretary of State’s decision to exclude ZZ from the United Kingdom of Great Britain and Northern Ireland on grounds of public security and to take an expulsion measure against him.

By inviting the Court to decide to what extent a Member State may, invoking requirements relating to State security, refuse to disclose to a Union citizen the grounds of public security justifying an expulsion measure taken against him by that State, the present case raises the awkward problem of striking the right balance between the need for a Member State to protect the essential interests of its security and the guarantee of the procedural rights enjoyed by Union citizens.

I – Legislative framework

A – EU law

Article 27(1) and (2) of Directive 2004/38 provides:

‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’

Under Article 28(2) and (3) of that directive:

‘2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

(a) have resided in the host Member State for the previous 10 years ...’

Article 30(1) and (2) of that directive provides:

‘1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

With regard to procedural safeguards, Article 31 of Directive 2004/38 stipulates:

‘1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

B – English law

The Immigration (European Economic Area) Regulations 2006 (‘the Immigration Regulations’) transpose Directive 2004/38 into national law. Under regulation 11(1) and (5) of the Immigration Regulations:

‘(1) An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State.

(5) But this regulation is subject to regulations 19(1) ... .’

Regulation 19, entitled ‘Exclusion and removal from the United Kingdom’, provides, in paragraph (1):

‘A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.’

Regulation 25 provides:

‘(1) In this Part

“Commission” has the same meaning as in the Special Immigration Appeals Commission Act 1997 (“SIAC Act”) ...’

Regulation 28 stipulates:

‘(1) An appeal against an EEA decision lies to the Commission where paragraph (2) or (4) applies.

(4) This paragraph applies if the Secretary of State certifies that the EEA decision was taken wholly or partly in reliance on information which in his opinion should not be made public

(a) in the interests of national security;

Under Article 1(3) of the SIAC Act, the Commission is a superior court of record.

Article 5(1), (3) and (6) of that Act provides:

‘(1) The Lord Chancellor may make rules

(3) Rules under this section may, in particular

(a) make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,

(6) In making rules under this section, the Lord Chancellor shall have regard, in particular, to

(a) the need to secure that decisions which are the subject of appeals are properly reviewed, and

(b) the need to secure that information is not disclosed contrary to the public interest.’

Article 6 of the SIAC Act provides for the appointment of special advocates. In this regard, Article 6(1) of the Act stipulates that the Attorney General may appoint a person authorised to plead before the High Court of Justice (United Kingdom) ‘to represent the interests of an appellant in any proceedings before the Special Immigration Appeals Commission (SIAC) from which the appellant and any legal representative of his are excluded’. Furthermore, Article 6(4) of the Act provides that that person is not ‘responsible to the person whose interests he is appointed to represent’.

Rule 4(1) and (3) of the Special Immigration Appeals Commission (Procedure) Rules 2003 (‘the SIAC Rules of Procedure’) provides:

‘(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security ...

(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.’

Rule 10 of the SIAC Rules of Procedure provides:

‘(1) Where the Secretary of State intends to oppose an appeal, he must file with the Commission:

(a) a statement of the evidence on which he relies in opposition to the appeal; and

(b) any exculpatory material of which he is aware.

(2) Unless the Secretary of State objects to the statement being disclosed to the appellant or his representative, he must serve a copy of the statement of evidence on the appellant at the same time as filing it.

(3) Where the Secretary of State objects to a statement filed under paragraph (1) being disclosed to the appellant or his representative, rules 37 and 38 shall apply.

As regards the functions of the special advocate provided for in Article 6 of the SIAC Act, rule 35 of the SIAC Rules of Procedure stipulates:

‘The functions of a special advocate are to represent the interests of the appellant by

(a) making submissions to the Commission at any hearings from which the appellant and his representatives are excluded;

(b) adducing evidence and cross-examining witnesses at any such hearings; and

(c) making written submissions to the Commission.’

With regard to communication between the appellant and the special advocate, rule 36 of the SIAC Rules of Procedure provides:

‘(1) The special advocate may communicate with the appellant or his representative at any time before the Secretary of State serves material on him which he objects to being disclosed to the appellant.

(2) After the Secretary of State serves material on the special advocate as mentioned in paragraph (1), the special advocate must not communicate with any person about any matter connected with the proceedings, except in accordance with paragraph (3) or (6)(b) or a direction of the Commission pursuant to a request under paragraph (4).

(3) The special advocate may, without directions from the Commission, communicate about the proceedings with

(a) the Commission;

(b) the Secretary of State, or any person acting for him;

(c) the relevant law officer, or any person acting for him;

(d) any other person, except for the appellant or his representative, with whom it is necessary for administrative purposes for him to communicate about matters not connected with the substance of the proceedings.

(4) The special advocate may request directions from the Commission authorising him to communicate with the appellant or his representative or with any other person.

(5) Where the special advocate makes a request for directions under paragraph (4)

(a) the Commission must notify the Secretary of State of the request; and

(b) the Secretary of State must, within a period specified by the Commission, file with the Commission and serve on the special advocate notice of any objection which he has to the proposed communication, or to the form in which it is proposed to be made.

(6) Paragraph (2) does not prohibit the appellant from communicating with the special advocate after the Secretary of State has served material on him as mentioned in paragraph (1), but

(a) the appellant may only communicate with the special advocate through a legal representative in writing; and