(2) Sufficient basis

“On the first morning of the hearing of the appeal, it was a theme of Mr. Southey's submissions that either there had been inadequate disclosure or there was no satisfactory basis for the decision. With regard to the latter he submitted that as a matter of EU law it was necessary for the court to satisfy itself that there was a satisfactory basis for the decision. He also submitted that there were insufficient facts before the Divisional Court to enable it to perform its function of assessing proportionality”. [Para. 121]

“In this regard he relied in particular on Joined Cases C-584/10 P, C-593/10 P and C-595/10 P EU Council v. Kadi where the CJEU stated (at [119]):

‘The effectiveness of the judicial review guaranteed by Article 47 of the Charter also requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person in Annex I to Regulation No 881/2002 (the Kadi judgment, paragraph 336), the Courts of the European Union are to ensure that that decision, which affects that person individually (see, to that effect, judgment of 23 April 2013 in Joined Cases C-478/11 P to C-482/11 P Gbagbo and Others v Council, paragraph 56), is taken on a sufficiently solid factual basis (see, to that effect, Al-Aqsa v Council and Netherlands v Al-Aqsa, paragraph 68). That entails a verification of the factual allegations in the summary of reasons underpinning that decision (see to that effect, E and F, paragraph 57), with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated’”. [Para. 122]

“Kadi was concerned with a challenge to the decision of the European Council to add Mr. Kadi's name to the list in Annex 1 to Council Regulation (EC) 881/2002 imposing restrictive measures against individuals. The observations of the CJEU must therefore be read in that context. Furthermore, the question whether a reviewing court must itself undertake a fact-finding role is considered subsequently. However, for present purposes we would readily accept that consideration of whether a decision is properly founded is an element of review both on the basis of proportionality in EU law and on the basis of Wednesbury unreasonableness in domestic law”. [Para. 123]

“In our view, the Divisional Court should have made these matters clear in its judgment. We are, however, satisfied that the Divisional Court was in possession of sufficient material to permit a proper assessment of proportionality, that it did in fact consider the matter in the light of all the material before it and that it concluded that there was a sufficient basis for the decision. Furthermore, it is now established that the special advocates accepted in the light of the material considered by the court that they could not challenge the substance of the Secretary of State's decision on proportionality or rationality grounds. In these circumstances, there is no basis on which the Divisional Court's conclusion on this point can be challenged. No purpose would be served by remitting the matter to the Divisional Court for it to make a formal decision on the point”. [Para. 125]

(3) Disclosure

“It addressed (at [64]) the appropriate course in circumstances where state security stands in the way of disclosure of the grounds of decision to the person concerned. It considered that judicial review 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. It then drew a distinction between the grounds on which a decision is based and the evidence underlying the grounds:

"65 In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under Article 27 of Directive 2004/38 is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 of that directive ineffective.

66      Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the Member State concerned – upon which the conclusion set out in the preceding paragraph of the present judgment is founded – 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, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.

…

68      Accordingly, it is incumbent upon the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.

69      In the light of the foregoing considerations, the answer to the question referred is that Articles 30(2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence”. [Para. 128]

(4) Fact finding

“It is submitted on behalf of XH that Article 31(3) of the Directive, when read in conjunction with Article 47 of the Charter, requires the procedure adopted by the reviewing court to include a process of fact finding. Mr. Southey submits that the application of Article 47 implies the need for a tribunal of "full jurisdiction" to determine the legality of the cancellation of XH's passport. In support of the argument that conventional judicial review is insufficient in this context he submits that there are no safeguards of independence in the exercise of the prerogative power by the Secretary of State. He further submits that a number of factual findings are clearly required in order to determine whether the decision challenged is proportionate”. [Para. 135]

“Article 47 of the Charter provides in relevant part:

‘Article 47. Right to an effective remedy and to a fair trial.

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

…’

Article 47 corresponds to Article 6 ECHR and it is, accordingly, appropriate to have regard to the relevant ECHR jurisprudence in this regard”. [Para. 136]

“In determining what standard of review is required by Article 6 it is necessary to assess the nature of the administrative decision and the nature of the exercise which the reviewing court or tribunal is called upon to perform in each particular case. We agree with the Divisional Court that the present case falls clearly on the same side of the line as Begum and Ali as opposed to the Tsfayo side of the line. The decision is one which requires the exercise of judgment and a particular expertise. While factual decisions are required to be made they are, in Lord Bingham's phrase "staging posts on the way to the much broader judgments which the authority had to make." In making her decision the Secretary of State is obliged under domestic public law to act fairly, and the court on judicial review can quash her decision if she does not. Of course, what fairness requires in relation to disclosure may be affected by the national security context, just as it is under EU law. Conventional judicial review is a flexible remedy which can extend to investigation of the factual basis of a decision, where appropriate, without assuming an independent fact finding role. We are satisfied that the adherence of the Divisional Court to conventional standards of judicial review met the needs of this particular case and that it did not result in a breach of the Directive, of Article 6 of the ECHR or of Article 47 of the Charter”. [Para. 147]

(5) Article 41 of the Charter

“Article 41 of the Charter provides in relevant part:

‘Article 41. Right to good administration.

1.   Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

2.   This right includes:

(a) The right of every person to be heard before any individual measure which would affect him or her adversely is taken; …’”. [Para. 148]

“On the basis of this provision Mr. Southey submits that fairness required that XH should have been heard before the Secretary of State exercised the power under the prerogative to cancel his passport”. [Para. 149]

“The first point to be made in respect of this ground is that Article 41 is concerned with the right to good administration by institutions, bodies, offices and agencies of the EU. It is far from clear that it has any application to the facts of XH's case. However, for present purposes we are prepared to assume, without deciding the point, that it embodies a general principle of EU law of good administration which must be followed by Member States. (See generally, Joined Cases C-141/12 and C 372/12 YS v. Minister voor Immigratie, Intergratie en Asiel [2015] 1 WLR 609 at [67] and [68].) Moreover, there is undoubtedly a fundamental principle of EU law requiring the observance of the rights of the defence. In Case C-277/11 MM v. Minister of Justice, Equality and Law Reform ECLI:EU:C:2012:744, Judgment of 22 November 2012, the CJEU affirmed (at [85]) ‘the importance of the right to be heard and its very broad scope in the EU legal order, considering that the right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person’”. [Para. 150]

“In circumstances where a person is considered by the Secretary of State to be involved in terrorism-related activity and likely to travel overseas in order to engage in such activity, a requirement that he must be given advance notice of a decision to cancel his passport in order to enable him to make submissions gives rise to obvious practical concerns. There would, in such circumstances, be a real risk that the giving of advance notice would undermine the purpose of cancelling the passport. It cannot be the case that requirements of good administration in EU law require advance notice of the Secretary of State's intention in all such cases”. [Para. 151]

“This difficulty is recognised by Mr. Southey who, nevertheless, submits that effect can be given to the principle of good administration and fairness by withdrawing a passport initially only on a provisional basis. Before us, Mr. Eadie questioned whether the Secretary of State would have the power to make such an order. It seems to us that the prerogative power would, at least, extend to the temporary withdrawal of a passport. Indeed, we understand that this is what occurs in cases where a person is repatriated at public expense and has subsequently failed to reimburse the Government for the cost. However, the temporary withdrawal advocated by Mr. Southey would, in our view, still involve a restriction on the right of free movement without a prior hearing”. [Para. 152]

“Mr Southey's proposal in substance reflects what the Secretary of State has done in the present case. Following cancellation of XH's passport she has given reasons for that action and XH has been in a position to make representations to seek to persuade her to change her mind and either revoke the cancellation or issue him with a fresh passport. He has also been able to challenge her decision in judicial review proceedings. Therefore, we do not consider that Article 41 and the general principles of EU law referred to above have been violated by the Secretary of State in this case”. [Para. 153]

“Furthermore, a fundamental objection to Mr. Southey's submission is raised by Nicol J. in his judgment in R (AZ) v. Secretary of State for the Home Department [2016] 4 WLR 12 at para. [46]:

‘As I have noted above, part of Mr Southey's submissions as to the disclosure which should have been made to the claimant prior to the refusal of a travel document, was dependent on him making good the other procedural ground of challenge. In short, he argued, if the claimant is entitled to further information as to the SSHD's national security case as part of his right to an effective judicial challenge, that further detail should have been supplied in advance of the administrative decision-making. I am about to turn to consider that second procedural challenge now, but for the reasons which I give, it is not successful. Accordingly, it can give the claimant no further support for this first procedural challenge. In my judgment, on the contrary, it further undermines the first procedural challenge. If, as I conclude, the SSHD is entitled to withhold material whose disclosure would harm the interests of national security from the claimant in the course of this litigation, it would be illogical if she was obliged to disclose that same information to the claimant in advance of taking the decision. Fayed demonstrates that the common law does not require such a conclusion. Article 41 allows the EU institutions to withhold access to the file if this is necessary to respect the legitimate interests of confidentiality and of professional and business secrecy. I agree with Mr Blake that, so far as article 41 embodies a general principle of good administration that must be followed by member states, they must likewise be permitted to withhold disclosure which would harm national security’”. [Para. 154]

“In circumstances where there are national security objections to giving advance notice and to provision of detailed information to the person affected by the decision, of a kind which would justify adoption of a closed procedure in any court proceedings to challenge that decision, we consider that the same national security objections qualify the ordinary principles of good administration and observance of the rights of defence in the administrative process in a similar way. In the particular circumstances of this case we are satisfied that the failure to afford XH an opportunity to make representations before his passport was cancelled is not an infringement of his rights in EU law or in domestic law. Allowing XH to make representations before reconsideration was, in our view, sufficient to satisfy the right to good administration and the observance of the rights of the defence”. [Para. 155]