Deportation based on confidential evidence: case accepted by ECtHR

The European Court of Human Rights has communicated a case of a foreign national whose expulsion was based on confidential evidence. His family remained in Poland.

The case concerns an Azerbaijani national who was identified as a threat to national security and public order by the Internal Security Agency. Based on the confidential evidence, the Małopolska Province Governor issued an immediately enforceable expulsion decision. Shortly afterwards, the foreign national was detained and expelled from Poland.

Counsel without access to some files

Both during administrative and judicial proceedings foreigner’s attorney had no access to confidential case files. Statements of reasons appended to decisions issued in the expulsion proceedings included no justification for naming the man a national security threat. This meant that neither the foreign national nor his attorney knew the most rudimentary facts of the case, which prevented them from mounting a proper defence.

Top administrative court: foreigners’ rights are protected

According to a ruling of the Supreme Administrative Court, as long as a court may access and evaluate all files of the case, there is no risk of a violation of the foreigner’s right to a defence. The SAC considers such arrangements compatible with the relevant constitutional standard, EU laws and the jurisprudence of the ECtHR.

International courts: right to be heard must be upheld

Both the European Court of Justice and the European Court of Justice has accepted the application of confidential materials in cases related to national security. However, both Courts has ruled that foreign nationals must have an opportunity to (if only partially) learn about the accusations made against them so that they can state their case. The ECJ has once held in a judgment that the necessary protection of State security cannot have the effect of denying a person their right to be heard. According to the ECJ, a foreigner must be informed of the essence of the grounds on which a decision is based (Case C‑300/11, ZZ v. Secretary of State for the Home Department, 65d).

Additionally, the ECtHR has ruled that in such cases, a “special advocate” should be appointed; a special advocate is a lawyer who would be given access to and an opportunity to comment on confidential files of the case, but would be unauthorised to communicate confidential information to their client (judgment of the Grand Chamber, Chahal v. the United Kingdom, no. 22414/93, § 131).

Recurring problem

There are many similar cases currently pending in Poland, including those related to denials of a temporary residence permit or a foreign national’s entry to the register of unwelcome foreigners. One of the most publicised cases was that of Ameer Alkhawlany, a PhD student from Iraq, which we described here. All these cases have one thing in common: foreign nationals have not been given any reasons for their classification as security threats.

Even more worryingly, authorities seem to disregard the fact that some of the deported foreign nationals have started families in Poland and that their spouses and children have Polish citizenship. This is a material factor that needs to be considered in the assessment whether national security interests should in a given case take precedence before a person’s right to protection of their family life.

“In such a situation, only a decision of an international court may determine how much are Polish regulations compatible with international law and contribute to an overhaul of domestic immigration laws that would enable all foreigners to comment on the charges made against them”, said Jacek Białas, the attorney of the Helsinki Foundation for Human Rights who represents the applicant before the ECtHR.

The communication of the case can be viewed here.