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EU ruling not undermining terror curbs

by Jack Schickler | 20.05.2016

“Terror curbs ‘undermined’ by EU ruling,” says a Times headline today about a European Court of Justice (ECJ) case concerning the exclusion of a suspected terrorist from the UK. It quotes pro-Brexit Justice Minister Dominic Raab as worrying that the case means we would have to inform suspects why they have been refused entry, “even if that endangers national security”.

The Daily Mail refers to the case as an “obscure ruling” that Raab “revealed … today”. In fact the verdict came out nearly three years ago. Raab brought it to light to argue that the ECJ was tying the hands of British courts. But not only is the ECJ’s judgment in line with existing UK practice, it does not require us to disclose secret information.

The case concerns an alleged terrorist known as ZZ, a French-Algerian national who, though previously a UK resident, found himself barred from re-entry after a trip abroad. His appeal – eventually referred to the ECJ – hinged on whether he had the right to know why he had been turned away. The Luxembourg court gave its ruling in June 2013.

The ruling distinguished between providing the full grounds why someone has been excluded, which might involve revealing secret intelligence, and providing “the essence of the grounds” – a summary of allegations detailed enough for someone to defend themselves. In saying that the defendant should be provided “in any event” with the essence of the grounds against them, the European court was following the same approach that UK law takes to immigration detention, says Simon Cox, one of the lawyers who took the original case.

The ECJ judgment was not unqualified. It said the the summary should be provided “in a manner which takes due account of the necessary confidentiality of the evidence”. The court’s own press release on the ruling said “so far as is strictly necessary”, the UK could refuse to disclose the grounds for refusing entry if doing so “might compromise State security”. When the case went back to the the UK, the British appeal court interpreted the ECJ to mean the defendant needed to be given the essence of the grounds as a basic minimum, even in a situation where the UK authorities and court agreed that would be contrary to the interests of national security.

Raab’s concern cannot be entirely dismissed. In such circumstances, the Home Office effectively has a choice between revealing secret intelligence and dropping or weakening its case. In the event, the man concerned was allowed into the UK because of the absence of evidence that he constituted a threat. Nevertheless, it seems reasonable that someone – especially a UK resident – be at least told the reasons why he is being prevented from re-entering the country and being reunited with his family. While stressing that it would not comment on ongoing appeal proceedings, the Home Office has told InFacts that the ECJ judgment “does not force us to disclose any information which jeopardises national security”. Moreover, it adds, “where an EU national poses a threat, they can and will be refused entry at the border or deported from the UK”.

Contacted by InFacts, Dominic Raab pointed us towards paragraph 27 of the Court of Appeal judgment, which we have referred to above. The Times has corrected its article to make clear it was based on remarks made by Raab, rather than following a new ECJ ruling.

Edited by Alan Wheatley