ZZ v Secretary of State for the Home Department, Court of Appeal - Civil Division, March 09, 2017, [2017] EWCA Civ 133

Issuing Organization:Civil Division
Actores:ZZ v Secretary of State for the Home Department
Resolution Date:March 09, 2017

Neutral Citation Number: [2017] EWCA Civ 133

Case No: T2/2015/1323 and T2/2015/1323(C)



SC/63/2007, [2015] UKSIAC SC_63_2007

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/03/2017

Before :





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Between :

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Steven Kovats QC (instructed by the Government Legal Department) for the Appellant

Hugh Southey QC and Nick Armstrong (instructed by the Public Law Project) for the Respondent

Ashley Underwood QC and Martin Goudie QC (instructed by the Special Advocate's Support Office) for the Special Advocate

Hearing dates : 08 February, 2017

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Lord Justice Gross :


  1. This case has a long history of which a short summary will suffice.

  2. The matter comes before this Court by way of an appeal from a judgment of SIAC dated 1st April, 2015 (``the 2015 SIAC judgment''). The Appellant (``the Secretary of State'') raises a single point as to the true construction of s.85(4) of the Nationality, Immigration and Asylum Act 2002 (``the NIAA''), submitting that SIAC erred in taking into account up to date information post-dating the decision under appeal. The Respondent (``ZZ'') cross-appeals, contending (inter alia) that the essence of the case against ZZ had not been disclosed to him. For our own part, the Court raised with the parties its strong and, ultimately, decisive concern that the appeal was academic, given that ZZ was re-admitted to the United Kingdom on the 18th August, 2015.

  3. To explain the background, the starting point must be the regulations and statute in issue. These are the Immigration (European Economic Area) Regulations 2006/1003 (``the 2006 Regulations'') and the NIAA.

  4. The version of the 2006 Regulations, in force at the material times, provided by regulation 11(1) that a European Economic Area (``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. However, by regulation 19(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 21 was in these terms:

    `` (1) In this regulation a `relevant decision' means an EEA decision taken on the grounds of public policy, public security or public health.

    (5) Where a relevant decision is taken on grounds of public policy or public security it shall ....be taken in accordance with the following principles -

    (c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;''

  5. At the material times, the NIAA provided in s.85(4) that, on an appeal from various immigration decisions, SIAC ``...may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.''

  6. ZZ had dual Algerian and French nationality; he had also acquired indefinite leave to remain in the United Kingdom. As Richards LJ observed, when giving the lead judgment of this Court dated 29th July, 2015, [2015] EWCA Civ 987, granting the Secretary of State permission to appeal to this Court, at [2]:

    `` ...ZZ previously had leave to remain in the United Kingdom and had the benefit of an EU residence card. In August 2005, when he was out of the country, the Secretary of State cancelled his leave to remain and made an order excluding him from the United Kingdom. That decision was not appealable. But in September 2006, when ZZ arrived in the United Kingdom from Algeria, he was refused admission and was removed to Algeria. The refusal of admission was appealable and ZZ did indeed appeal to SIAC against it. In 2008 SIAC dismissed the appeal.''

  7. The Open judgment of SIAC on that occasion, dated 30th July, 2008 (``the 2008 SIAC judgment'') was given by Mitting J. At [20] - [21] of the 2008 SIAC judgment, Mitting J expressed SIAC's central conclusions as follows:

    `` 20. ....for reasons which are explained only in the closed Judgment, we are satisfied that the personal conduct of ZZ represents a genuine present and sufficiently serious threat which affects a fundamental interest of society namely its public security and that it outweighs his and their [i.e., ZZ's wife and family's] right to enjoy family life in the UK.....

  8. For reasons which are given in the open and closed Judgments, read together, we are satisfied that the imperative grounds of public security which we have identified in the closed Judgment outweigh...

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