Equality of arms? Use of classified information in return cases in Poland

Introduction

Return decisions should generally include factually based information on why the decision is being issued. However, under the Return Directive justification of the decision can be limited for reasons of national security (Article 12(1) second sentence). The information contained in such a decision is often provided by the intelligence services of the state and therefore protected by the law. The problem arises when factually based information is not disclosed to the person concerned so that their access to procedural guarantees is precluded.

The Supreme Administrative Court in Poland ruled on a case of a third country national who was expelled from the territory without being informed of the factual reasons for his return. Neither he nor his legal representative had been granted access to files of the return case. The Supreme Administrative Court dismissed the complaints submitted on behalf of the third country national.

Facts of the case

The third country national, who lived in Poland for seven years, was refused a subsequent temporary residence permit and issued a decision on return which had no factual justification. The proceedings were initiated upon request of the Internal Security Agency. He and his legal representative were refused access to any factual information that gave a basis to issue him with a return decision. The return decision was immediately enforceable so the third country national was expelled before the decision of the appeal authority.

The Supreme Administrative Court in Poland issued four judgements in this case, which regarded four different decisions of the administrative authorities which were appealed by the person concerned: the decision on refusal of issuing a temporary residence permit, the decision on return, the decision on refusal of access to classified information in the return proceedings and the decision on refusal of access to classified information in the appeal proceedings concerning return. The general justification was the same – the party to the proceedings cannot be granted access to the information considered classified under relevant national law.

Under the Polish law on foreigners (Article 302(1)(9)), the decision on return is issued if further stay of a third country national constitutes a threat to the defense or security of a state or to the protection of security and public order or to the interest of the state. The decision on return is issued ex officio or upon request of other authorities, including the Internal Security Agency (Article 310(2)). In the present case the administrative authorities argued that they were obliged to issue a decision on return, since the Internal Security Agency is a competent authority to give an opinion on the threats to national security. The information submitted by the Internal Security Agency was considered ‘classified’ and as such, it could be disclosed only to authorised persons (Article 5(2) and Article 8 of the 2010 Law on protection of classified information). That is why according to the administrative authorities the reasons for the return of the third country national could not have been presented in the return decision. It should be noted that a threat to national security is not defined in any of the national legal provisions.

Summary of the arguments of the applicant

Before the Voivodeship Administrative Court in Warsaw and the Supreme Administrative Court  the legal representative of the applicant claimed that refusing access to classified information made it impossible for the third country national to actively participate in the proceedings, to present arguments against return and effectively challenge the decision on return. That, in his opinion, constituted a violation of Article 1 Section 1 of Protocol no 7 to the European Convention on Human Rights (ECHR). This provision ensures that a third country national residing lawfully in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

a) to submit reasons against his expulsion,

b) to have his case reviewed, and

c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

Although these procedural rights can be restricted under Section 2 of this Article for the reasons of national security, the legal representative of the expelled third country national claimed this restriction can be imposed only temporarily – until the expulsion takes place. He cited the jurisprudence on Article 1 of Protocol no 7 and the Explanatory Report of the Council of Europe, which states that “the State relying on public order to expel an alien before the exercise of the aforementioned rights must be able to show that this exceptional measure was necessary in the particular case or category of cases. On the other hand, if expulsion is for reasons of national security, this in itself should be accepted as sufficient justification. In both cases, the person concerned should be entitled to exercise the rights specified in paragraph 1 after his expulsion”.

Furthermore, the applicant’s legal representative claimed that the principle of proportionality was infringed in this case, because the procedural rights of the third country national could have been limited in a less disruptive way. In the complaint the legal representative also pointed to the lack of clarity of the EU legal provisions and asked the Court to submit a request for preliminary ruling to the CJEU. The suggested reference concerned the right to an effective remedy against a return decision envisaged in Article 13(1) of the Return Directive. The question was whether this provision, interpreted in light of Article 47 of the Charter of Fundamental Rights of the EU (hereinafter: EU Charter), allowed for such a limitation of the information on the factual reasons for the return decision, which in practice meant no possibility to get to know the essential reasons of the return decision and no possibility to access the files of the case.

The judgement of the Supreme Administrative Court

The Supreme Administrative Court dismissed the complaint and held that when there is a need to protect the security of state and public order, the rights of the party of the proceedings have to be limited. The party cannot get to know the motives of the decisions and has to rely on the fair judgement of the authority. Assessment of the authorities is subject to the control of legality in administrative court proceedings, so it cannot be stated that the actions of the authority are out of control. The courts as well as the administrative authorities were sufficiently informed of the motives of the decision and had a possibility to verify them in the context of the legal conditions in return proceedings. Their assessment is binding and sufficient.

The Supreme Administrative Court dismissed the request to submit a reference to the CJEU. The Court concluded that the Return Directive which allows for non-disclosure of certain facts in the return decision for reasons of national security is a specific law applicable in return cases and to that extent it excludes the general safeguards envisaged in Article 47 of the Charter.

Equal arms

Article 47 of the EU Charter envisages the right to an effective remedy and a fair trial. Its scope covers Article 6 and 13 of the European Convention of Human Rights (hereinafter ECHR) and guarantees even more extensive protection. The aforementioned Articles of the ECHR include the right to adversarial proceedings and the right to equality of arms.  The principle of adversarial proceedings means that the parties to a trial have knowledge of and are able to comment on all evidence adduced or observations filed (Lobo Machado v Portugal, Appl. no. 15764/89, 22 January 1996, para 31). The principle of equality of arms ‘requires each party to be given a reasonable opportunity to present  his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent’ (Dombo beheer v the Netherlands, Appl. no 14448/88, 27 October 1993, para 33 and see ECRE and Dutch Council for Refugees, The application of the EU Charter of Fundamental Rights to asylum procedural law, p 167). However, the entitlement to the disclosure of relevant evidence is not an absolute right. These rights can be limited in order to protect national security, but as the European Court of Human Rights has already ruled in Chahal v UK, in the course of judicial review there should be techniques applied, which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual a sufficient measure of procedural justice. The Court of Justice agreed in ZZ that the right to an effective remedy may be limited in the interest of the protection of national security, but limitation must respect the essence of this right and be proportionate (para 51). This means that the person concerned should be informed of the essence of the grounds which constitute the basis of the decision issued in their case and that the national court should make sure the interference with the right to an effective remedy is strictly necessary (para 64). The CJEU did not define what is meant by the ‘essence of the grounds’ of the decision, but it distinguished between the essence of the grounds and the evidence supporting these grounds (para 66). ECRE points at the case law of EU courts and concludes that the grounds should provide sufficient detail of the allegations against a person (for example mention names, dates, places) in order to enable him or her to defend him or herself against these allegations (The application of the EU Charter, p 169).

Conclusion

Taking this into consideration, both in administrative proceedings and in judicial proceedings in the present case, the person concerned should have been provided with at least basic information about the grounds on which the return decision had been based, allowing them to argue their case. Otherwise the practice of the Polish authorities and the Polish administrative courts raises serious concerns about the consistency with Article 47 of the EU Charter. Since national security is a term which is not defined in any national law and therefore can be open to arbitrariness, ensuring access to procedural safeguards to the party of the proceedings is of utmost importance.

The described case is not the only example of the Polish authorities leaving the third country national completely unaware of the reasons of the decision concerning his rights and obligations. In previous years HFHR litigated a case of a Moroccan national, who was also refused a temporary stay permit and expelled on the basis of classified information presented by the Internal Security Agency, and a case of a Belarusian national, who was refused Polish citizenship, had his permanent stay permit revoked and was expelled on the basis of classified information provided by the same Agency (see D.Witko, Tajność akt a prawa cudzoziemca w postępowaniu wydaleniowym [Classified information and the rights of the foreigner in return proceedings] for more information). Currently HFHR lawyers work on two other similar cases and the international protection case in which the justification of the negative decision had not been disclosed to the applicant for reasons of national security.