By Aisha Maniar
ZZ – Refusal of Entry – is a joint French-Algerian national and lived in England with his British wife and 8 children until August 2005. A week after ZZ‘s departure from the United Kingdom (UK) in August 2005 the Home Office cancelled his indefinite leave to remain status and excluded him from re-entry to the UK on the grounds that his presence posed a risk to national security. In September 2006 ZZ traveling on a French passport was refused admission to the UK under the Immigration (European Economic Area) Regulations 2006 and was returned to Algeria but his family have continueed to live in the UK without him. ZZ‘s appeal against his exclusion from the UK was rejected by Special Immigration Appeals Commission (SIAC) in 2008. SIAC”s decsion was finally challenged in February/March this year with Court of Appeal giving its decision in April 2011.
The main points of the 2011 appeal in this case were whether, as a French national, ZZ could benefit from certain procedural rights which he could not benefit from as an Algerian national, namely to be provided, under EU law, with disclosure of “at least the gist of the closed national security case against him” (paragraph 4 of Court of Appeal judgement) so that his special advocate, who represents him in closed proceedings, which he and his counsel are excluded from, can have his instructions on the allegations made, to be able to refute them. As with all SIAC appellants, he is not a party to all the allegations which form the basis of deportation/exclusion, on national security grounds and cannot thus appeal effectively. The other issue is discrimination against him, as a French citizen, given the level of disclosure afforded to British nationals subject to control orders, which is higher. Other points were also raised.
ZZ contended that under Article 47 of the Charter of Fundamental Rights of the European Union (Charter), he is “entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law”, namely, in his case, disclosure of the evidence against him so that he can defend himself and fight the refusal of entry, which has kept him separated from his family for over six years. On the other hand, the Home Secretary contended that various EU treaties allow her not to disclose information for national security purposes.
Appeals based on discrimination and the standard of proof were rejected, however the three judges (Kay, Carnwath and Moses) decided to refer (for a preliminary ruling) to the Court of Justice of the European Union (CJEU) the issue of the procedural fairness of SIAC proceedings, given the lack of clarity on this matter and the clear conflict between “national security, […] and basic procedural fairness” (paragraph 51 of the judgement). The judges also recommended that the referral be expedited given, in particular, the stress and strain on family life the separation of the family is causing. The referral was accepted in June 2011, however, expedition was rejected and it is unlikely to be considered for another two years. The question, as formulated during the hearing by Hugh Southey QC, representing the appellant, is as follows:
Does the principle of effective judicial protection require that a judicial body considering an appeal from a decision to exclude a EU citizen from a member state on grounds of public policy and public security under chapter VI of Directive 2004/38 ensure that the EU citizen concerned is informed of the essence of the grounds against him, notwithstanding the interests of state security?
While a positive outcome may only affect nationals of other EU states, it would also only lead to further disclosure providing a gist and not full details of the case against the appellant. This departure into EU law, after ZZ had exhausted all domestic remedies available to him, could provide an interesting development in the law in this area.
XX – Deportation to Ethiopia – a 33 year old Ethiopian national has lived in the UK since the 1990s. During a visit to Ethiopia in 2006 XX‘s indefinite leave to remain status was revoked by the Home Secretary on national security grounds and he was excluded from the UK. However, XX was subsequently allowed to return to the UK at the end of 2006 only to be arrested under anti-terror laws in January 2007 where upon XX was placed under immigration bail. XX appealed to SIAC but this was considered abandoned because early in 2008 his indefinite leave to remain in the UK was reinstated but XX was then placed under a control order. That control order was revoked in 2009 following an order by the Home Secretary to deport him on national security grounds. As a consequence a second appeal to SIAC against deportation to Ethiopia was made and later rejected in September 2010. The Court of Appeal will now consiser the matter.
At the SIAC appeal (which was rejected last year) XX challenged his deportation to Ethiopia on the basis on Articles 3 (prohibition of torture), 5 (right to liberty and security) and 6 (right to a fair trial) of the Convention for the Protecton of Human Rights and Fundamental Freedoms which is better known under its shorter title of European Convention on Human Rights (ECHR). SIAC’s appeal dismissal was on the basis that the court was satisfied with the assurances given by the Ethiopian government in a Memorandum of Understanding an accord that exists between Ethiopia and the UK .
Although the original submission to the Court of Appeal was rejected it was reformulated following new evidence in the SIAC appeal of J1 (also concerning deportation to Ethiopia with judgment given last July). This new and as yet to be heard appeal concerns the following points:
- That SIAC allowed evidence obtained from prisoners held incommunicado, in illegal detention centres and subject to torture in Ethiopia, therefore upholding the abuse of process.
- That SIAC was wrong to conclude that there was no real risk of XX being prosecuted or denied a fair trial if returned to Ethiopia in breach of Article 6, ECHR especially as claims were made against XX in open evidence of his links to terrorist organisations in Ethiopia and the wider region.
- To challenge SIAC’s finding that there is no risk of ill treatment or torture as defined in ECHR Article 3 if XX is returned to Ethiopia regardless of the MoU between Ethiopia and Britain. A finding made against the weight of evidence provided to SIAC by Human Rights Watch detailing the exact opposite.
U – Bail granted
In July, U, who has been under house arrest or other forms of detention for all “but 2 weeks of [the past] 6 years” (paragraph 7) was granted bail after various application made over the past 18 months. According to the judgment, U has returned to live under house arrest at his previous bail address. Judgement in U and The Secretary of State for the Home Department.
Z – Bail revoked
Z had his bail revoked at the end of June for allegedly tampering with his electronic tag. Judgement in Z and The Secretary of State for the Home Department.