Blog post by Gruša Matevžič, a senior legal officer within the refugee programme at the Hungarian Helsinki Committee.
National security plays an important role in different types of migration procedures. Asylum seekers can be excluded from international protection; holders of international protection can lose their status; residence permits for migrants can be refused or revoked; and foreigners can be expelled if they represent a threat to national security. Detention can also be justified on national security grounds, and national security considerations play an important role in citizenship and statelessness procedures.
Common to the above mentioned procedures is that reasons why someone is considered a threat to national security are usually based on classified data. This means that the access to such data is restricted, and special procedural rules must be followed in order to get access. A recent study conducted in Cyprus, Hungary and Poland showed that access is usually denied to the applicant and their representative in migration procedures. In addition, decisions issued in the cases of these foreigners do not contain factual justification regarding classified evidence. Therefore, neither the foreigners themselves nor their attorneys have any possibility of discovering the reasons for the issued decision.
Why is access crucial?
This can best be answered by an example: Russian citizens of Chechen origin were accused of supporting ISIS and were declared a threat to national security in Poland. They were only able to challenge the accusations, based on inaccurate evidence (the transcripts of their phone calls were mistranslated), because they had access to all the case files in their criminal procedure. Since such access is not allowed in administrative immigration proceedings, foreigners do not have the possibility to challenge the evidence on which their threat to national security is based.
Such a complete lack of access to the reasons why someone is considered a national security threat prevents affected foreigners from effectively exercising their rights of the defence, and protecting themselves against potential arbitrary decisions by the authorities that can have detrimental effects on their lives (e,g, exclusion from protection, detention, deportation). The right to be heard and the obligation to state the reasons for a decision are inherent in respect for the rights of the defence, which is a general principle of EU law (C-166/13, Mukarobega, §45, 48; C-560/14, M, §88). Article 47 of the EU Charter on Fundamental Rights – the right to an effective remedy and to a fair trial – ensures respect for the rights of the defence and the right to fair legal process in all judicial proceedings (C-166/13, Mukarobega, §34; C-249/13, Boudjlida, §31). Therefore, denial of access to the essence of the classified data on which the risk to national security is established reduces the foreigners’ rights of the defence, effective remedy and fair trial to a minimum.
Protection of national security is of utmost importance, but can it be ‘abused’?
If there are no sufficient procedural guarantees that would enable the affected foreigners to effectively challenge the immigration authorities’ decisions, the actual legitimacy of the existence of the threat becomes questionable. There is a danger that national security concerns can become a blanket authorisation for the authorities to deprive migrants of their statutes/residence permits; expel or arbitrary detain them without any meaningful control; and deny them the possibility to know at least the summary of the reasons why they are considered a national security threat.
National security protection may require the classification of the data based on which someone is considered a threat to national security, as for instance, disclosure of that evidence in certain cases 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. However, the complete lack of access (or lack of meaningful access) does not comply with the relevant EU law and the jurisprudence of the Court of Justice of the EU (CJEU) or the European Court of Human Rights (ECtHR).
Serious infringements of the basic human rights of migrants are justified by states in the name of national security protection. This can be illustrated with few examples:
- The Hungarian Government went so far as to adopt a Decree which prohibits foreigners who are expelled based on national security reasons to request a suspensive effect of their expulsion before the appeal is adjudicated, causing an immediate risk of refoulement without access to an effective judicial remedy (including asylum seekers rejected in accelerated procedure).
- An asylum seeker was detained in Cyprus because he was considered a threat to national security due to an entry in the Interpol database by the country from which he was seeking asylum. Political or other motives of such inclusion into databases were not examined in the course of the judicial procedures. It was not disclosed to the applicant which country made the entry into the Interpol database because it was claimed that disclosure of that information would endanger national security (.M.J., Δ.Κ. 16/2020, 7 May 2020).
- An Iraqi PhD student was considered a threat to national security and detained. Despite the fact that the Regional Court released him after checking the relevant documents from the Internal Security Agency and stating that they were laconic and that the threat indicated by the security agency was hypothetical and therefore could not constitute the grounds for deprivation of liberty, he was immediately expelled from Poland under a new decision by the Minister of the Interior and
How can proportionality be assessed if the immigration authority does not have access to classified data either?
Quite specific for Hungary, as the study shows, the Hungarian immigration authority does not have access to classified data. Moreover, the opinion of the Hungarian security agencies on a national security threat (which does not have to contain reasons) is binding on the immigration authority in asylum procedures and in certain immigration proceedings. Although the immigration authority in Cyprus does have access to the classified data on which the threat to national security was established, they do not always examine that information in full and do not include certain documents in a case file. Instead, the immigration authority prefers to automatically accept that someone constitutes a threat. In Poland, the authorities can only access a summary of all the evidence collected by the security agency.
Therefore, a legitimate question occurs: how do the immigration authorities actually perform a thorough and individual examination of a case, taking into account individual circumstances and the assessment of necessity and proportionality?
The Metropolitan Court in Hungary submitted a set of preliminary reference questions to the CJEU in an asylum case exactly on these issues, and the judgement is eagerly awaited.
From zero access to an ‘insufficient’ minimum
According to the CJEU judgment in ZZ case, an applicant’s right to an effective remedy can only be limited to the extent that is strictly necessary. The applicant ‘must be informed, in any event, of the essence of the grounds’ on which the rejection of the application or withdrawal of status is based (C-300/11, ZZ, §65).
According to the CJEU, the ‘essence of the grounds’ therefore must be disclosed to the applicant. What constitutes the essence of the grounds remains at the discretion of the national courts (C-300/11, ZZ, §67). Although CJEU (C-584/10 P, C-593/10 P and C-595/10 P, Kadi II, 145, 147, 149) as well as ECtHR (A. and Others v. UK [GC], §§ 210, 220, 222,223; Muhammad and Muhammad v. Romania [GC], §168; Al Husin v. Bosnia and Herzegovina, §§25, 121) case law has pronounced some examples on what the essence of the grounds is, the national authorities seem to be satisfied by disclosing only very general information. For example, in a recent case in Poland, information stating that ‘there are allegations that the foreigner may conduct terrorism-related activities, that he travelled to certain destinations, and that he has contacts with other persons staying in another EU country’ were considered sufficient enough to comply with the ‘essence of the grounds’ criteria (Case no. II OSK 3002/18, 6 February 2019).
Thus, we believe that the criteria of what constitutes the ‘essence of the grounds’ should be further developed by the CJEU. If this remains at the discretion of the Member States, the right of a foreigner to effectively challenge a decision will not improve.
It is enough that domestic courts have access to classified documents
Is an often heard reasoning in domestic court judgments in Hungary, when responding to the applicant’s argument that a denial of access to classified data infringes their right to a fair trial. A worrying precedence from Cyprus states that the court does not examine the reasons given for posing a threat to national security, the sole judge of that is the executive power. Furthermore, Hungarian and Polish courts do not have the possibility to examine and decide whether the classification was lawful. In Cyprus, the courts have such a possibility; but in the majority of cases their examination does not focus on this issue.
Someone might wonder how this is possible, despite the clear jurisprudence of the CJEU and ECtHR on the matter. Domestic courts saying that the ZZ case only applies in freedom of movement cases (Hungary); that the application of Article 47 of the Charter is excluded by lex specialis of Article 12(1) of the Return Directive (Poland); that the right of access to classified documents by a foreigner’s lawyer, contained in Article 23 of the Asylum Procedures Directive, is only an example of possible solutions and the rights of the defence may be ensured in a different way (Poland); and referring to the Regner v. Czech Republic case, instead of the more recent Grand Chamber judgment Muhammad and Muhammad v. Romania (Cyprus), are just some examples.
It is interesting to see that such an understanding of the right to a fair trial, and the principles of equality of arms and adversarial procedure is not the same in certain other Member States where the parties to the procedure must have equal access to all the legal and factual reasons and information available to the court. The above principles are understood as guarantees, that the court may only consider and use legal and factual information and reasons, if the parties concerned have had the same access to it (Chlebny, J. (2018)). On the contrary, in Cyprus, Hungary and Poland, the fact that the court can examine the classified files to which the applicant does not have access represents a sufficient safeguard of the principles of equality of arms and adversarial procedure. Bearing in mind that the applicant is the only one who can actually defend themselves if they know why they are considered a risk, there is a clear need to further legislate the matter at the European level in order to achieve a common understanding of the notion of a fair trial.
The role of the judge in the judicial review of detention based on national security grounds
Beyond the question of access to classified data, the judicial scrutiny of national security cases is also problematic. Detention of migrants (including asylum seekers) on national security grounds is automatic in Cyprus, Hungary and Poland. The courts too often simply take the assessment of the security agencies that someone represents a threat to national security for granted, and do not question it. In Hungary and Cyprus, the classified data justifying the risk to national security are not even examined by the courts reviewing detention.
Such automatic acceptance of the opinions on the risk to national security by the authorities is in stark contrast to the established jurisprudence of supranational European courts. According to the CJEU’s jurisprudence, before ordering detention, an immigration authority has to carefully examine all the facts and evidence why a person is considered a threat to national security. The authority has the obligation to determine whether the threat that the applicant represents to the national security corresponds at least to the gravity of the interference with the applicant’s liberty. Judicial control of decisions in national security cases must not be formalistic. The court is required to examine all the documents of security agencies, provide the applicant a chance to explain/defend themselves; and the applicant’s individual conduct has to represent a genuine, present and sufficiently serious threat affecting a fundamental interest of society or the internal or external security of the Member State concerned (C-601/15, J.N).
According to the ECtHR’s jurisprudence, while the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of national security that is unlawful or contrary to common sense and arbitrary. National authorities cannot do away with effective control of lawfulness of detention by the domestic courts whenever they choose to assert that national security and terrorism are involved (Al-Nashif v. Bulgaria, §§94, 123, 124).
In conclusion, protection of national security is indeed a crucial legitimate aim of every country and well-founded national security concerns can lawfully trigger measures such as exclusion or withdrawal of international protection status/residence permit, expulsion and detention of a foreigner. However, specific procedural safeguards, indispensable in a democratic society, must be in place. Opinions of security agencies must not be automatically accepted. Instead, a judicial review must encompass the examination of all the documents based on which such a conclusion is formed. Nonetheless, it is not adequate that just the courts have access to the reasons why someone is considered a threat to national security. Foreigners need to have access to at least the ‘essence of the grounds’, and be able to use this information in their proceedings. The essence should encompass information that would enable foreigners to meaningfully exercise their rights of the defence, without which they are not able to effectively defend their fundamental rights in immigration procedures. Forced migrants, such as asylum seekers and beneficiaries of international protection have increased vulnerability and high stakes in this process.
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