Removal of passport triggers right to disclosure of reasons

06/07/16

The Home Secretary cancelled MR’s passport having assessed that he was "involved in terrorism-related activity” and “likely to travel overseas in future to engage in terrorism-related activity”. Other than noting that MR had been deported from Bulgaria on national security grounds in 2014, no further reasons were given.

In ZZ v Secretary of State for the Home Department, the Court of Appeal (interpreting a decision of the ECJ) ruled that EU nationals subject to deportation are entitled under the Citizens’ Directive and Article 47 of the EU Charter of Fundamental Rights to be told, as a minimum, the essential grounds on which the decision was made, even where such disclosure would endanger national security. The question arose as a preliminary issue whether a person whose passport was cancelled was entitled as a matter of EU law to the same minimum disclosure.

Resolving that question as a preliminary issue in MR’s claim for judicial review, Mr Justice Ouseley accepted that the question whether the ZZ disclosure requirements applied depended on context. But – rejecting the Home Secretary's argument and applying the ECJ’s test in Gebhard – he held that the decision to cancel a passport "hindered or made less attractive" the exercise by MR of his right as an EU citizen to move freely and reside within the  territory of other Member States and so interfered with his EU free movement rights. This was so even if it might be legally possible for MR to travel without a passport. It also engaged MR’s rights under the Citizens Directive in the same way as deportation would.

Although the cancellation of a passport might impact less severely on certain of the Claimant’s rights than an order for deportation, there was no room for any intermediate standard of disclosure. Accordingly, MR was entitled to be told the essence of the grounds on which the decision to cancel his passport had been made, irrespective of whether that would cause damage to national security.

The judgment appears here.