The case involved an Algerian-French national married to a UK citizen and residing lawfully in the UK for 15 years. Applications for naturalisation were refused on grounds of national security. Indefinite leave to remain was granted mistakenly by an official who was unaware of security concerns about the appellant. After leaving the UK for Algeria, the appellant was refused re-admission to the UK and his indefinite leave to remain cancelled. His appeal has been rejected with regard to the 2006 Regulations which transpose the Law Directive 2004/38/EC of the European Parliament and Council.
The regulations state that the free movement of persons may be restricted by a member state on grounds of public health, public security or public policy. Measures shall be based on the personal conduct of the individual, which must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
A question to be determined was the approach which was to be taken to establishing the existence of imperative grounds of public security. Drawing on European Commission v Spain [2006] ECR 1-1097 the judge concluded that the facts were to be proved on the balance of probabilities. In European Commission v Spain something far short of proof to the criminal standard supported a conclusion that the personal conduct of a person represents “a genuine present and sufficiently serious threat”. In the closed proceedings it was found that the appellant did pose a sufficiently serious threat to national security in accordance with this standard of proof.
The argument that the requirements of procedural fairness identified in Secretary of State for the Home Department v MB [2007] QB 415 applied to these proceedings was rejected. The judge drew on G v Bulgaria 1365/07 24th April 2008 and concluded that there was nothing in the judgment or in European law to require material properly kept closed for national security reasons to be disclosed to the appellant or his open advocates.
In dismissing the appeal, the judge took into account the length of time the appellant had resided in the UK and the adverse affect of the expulsion on his wife and children. The 2006 Regulations state that the scope for measures restricting free movement of persons should be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host member state, their age, state of health, family and economic situation and the links with their country of origin. However, the court found that, for reasons which are explained only in the closed Judgment, the personal conduct of the appellant represents a sufficiently serious threat to public security and that it outweighs his and their right to enjoy family life in the UK.