EU court to rule on fairness of keeping evidence secret from terrorist suspects

It is incredibly difficult for suspects to argue their case under the current system at the special immigration appeals commission
A high-security convoy leaves Belmarsh prison, south London, carrying foreign terror suspects. But are the UK's 'Kafkaesque' procedures compatible with European law? Photograph: Gareth Fuller/PA

Last week the coalition released an ineffective counter-terror review. On Wednesday in the case of ZZ v secretary of state for the Home Office, the court of appeal made a preliminary referral to the court of justice of the EU seeking clarification as to whether the UK's Kafkaesque terrorism immigration proceedings are compatible with European law.

ZZ is an Algerian and French national and so, unlike most terrorist suspects dealt with through these proceedings, has recourse to EU law by virtue of his French nationality.

He wishes to return to the UK where his family are based, but the home secretary contends that he is a danger to national security.

The court of appeal is referring the current special immigration appeals commission (Siac) procedures to the court of justice of the EU for a preliminary ruling.

The court of justice shall be asked whether a system in which appellants are unable to see even the "irreducible minimum" of the evidence against them is compatible with European law.

Under the present system, those suspected of being a terrorist can be deported without seeing the evidence against them. Instead, a security-cleared barrister called a special advocate is appointed to review any classified evidence and argue their case.

However, once special advocates have seen the evidence they are allowed very little further contact with the suspect, thus making it incredibly difficult to effectively argue their case.

Further, instead of having to prove suspicion beyond reasonable doubt, or even on the balance of probabilities, the Siac only needs to be satisfied that there is "reasonable suspicion" that the suspect poses a threat.

They can then be deported to countries such as Algeria, Jordan and Lebanon, all premised upon non-legally-binding agreements with those countries that they will not be harmed.

At question for the court of justice is the extent to which the national security policy of member states is within the scope of EU legislation. This is an extremely pertinent question, especially in the sphere of immigration.

In the case of Maaouia v France (pdf), the European court of human rights (an entirely different body from the court of justice), found article 6 of the European convention on human rights to be inapplicable to immigration proceedings. This is the provision that would otherwise guarantee a fair trial.

Thus under British and European human rights law, a suspect facing Siac proceedings has no right to open efficient justice.

The ZZ case provides an opportunity for EU law to step into this void and ensure some small degree of procedural justice, if only where the Siac is dealing with an EU citizen.

One can only hope that the court of justice will firmly entrench EU citizens' right to hear the basis of decisions made against them, yet it is a sad indictment of British justice and European human rights law that such a scenario can occur in the first place.

We are still only talking about a suspect's right to see the "irreducible minimum" of the classified evidence against him, the very bare bones.

Simon Crowther is a student at City University in London. His work on Siac has been published in the Cambridge Student Law Review.

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