Right to Know
Comparative Report on Access to Classified Data in National Security Immigration Cases in Cyprus, Hungary and Poland
Written by Gruša Matevžič with substantive contributions from
Jacek Bialas, Nicoletta Charalambidou and Zita Barcza-Szabó.
This study has been supported by the European Programme for Integration and Migration (EPIM), a collaborative initiative of the Network of European Foundations (NEF). The sole responsibility for the study lies with the authors and the content may not necessarily reflect the positions of EPIM, NEF or EPIM’s Partner Foundations.
National security grounds can be a reason for exclusion from, or withdrawal of international protection status; refusal or revocation of residence permits; or expulsion and immigration detention. When someone is considered a threat to national security, the reasons are usually based on classified data.
If there are no sufficient procedural guarantees that would enable the affected foreigners to effectively challenge these decisions by immigration authorities, the actual legitimacy of the existence of the threat becomes questionable. Although a procedure to access the classified data exists in Cyprus, Hungary and Poland, in immigration cases this access is usually denied to the applicant and their representative. The immigration detention procedure in Poland is slightly different, because it is governed by a Code of Criminal Procedure that actually provides access to the classified file. It can therefore be assumed that these provisions on access also apply to immigration detention. However, national law provisions do not regulate whether the obtained information can be used in other immigration procedures.
Furthermore, decisions based on national security grounds do not have to contain reasons in any of the three countries. Administrative authorities in Cyprus and Poland have access to classified data, but not in Hungary. On top of this, the opinion of the Hungarian security agencies on a national security threat (which also does not have to contain reasons) is binding on the immigration authorities in asylum procedures and in certain immigration proceedings. In Cyprus, administrative authorities do not always examine all the classified data based on which the threat to national security was established, and do not include certain documents in the case file. Instead, they rather automatically accept that someone constitutes a threat. In Poland, only the summary of all the evidence collected by the security agency is accessible to the authorities. Therefore, the applicants in all three countries are unable to effectively contest decisions by immigration authorities that interfere with their fundamental rights, such as the right to asylum, private and family life, right to liberty, etc. Detention on national security grounds is automatic in all three countries. In addition, asylum detention in Cyprus does not carry any maximum duration.
In all three countries, the courts reviewing immigration procedure decisions have access to the classified data. Such information is usually examined in immigration procedures, but not in immigration detention procedures in Hungary and Cyprus; while in Poland, the courts are obliged to assess the classified data ex officio. In Cyprus, the courts will go no further than to ascertain that the Government gave evidence that it was protecting national security, and the courts will not question whether the steps taken were indeed necessary and proportional. In Hungary and Poland, the courts cannot refer to the content of the classified data in the judgement. In Cyprus, in practice, the courts do not refer to the content of classified information as such in their judgements, but may give an indication as to what it relates to.
In all three countries, it is possible to appeal the decision if access to the classified information is denied, but these appeals are not effective. In Hungary, even if the applicants would be allowed access to the classified information, they are denied the possibility to use the obtained information in the administrative or judicial proceedings.
In Hungary and Poland, the 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.
It could be concluded that the existing systems in all three countries are not compatible with relevant EU law and jurisprudence of the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR) and violate the rights to defence and the right to an effective judicial remedy.
The study wants to raise awareness of the problem and the human (rights) impact thereof. It illustrates several actual cases where for example:
∙ the Supreme Court in Cyprus took a hard line approach and ruled that no judicial control of decisions denying disclosure of classified data and of ordering detention based on national security grounds is allowed;
∙ an applicant in Cyprus was detained because he was considered a threat to national security due to an entry in the Interpol database by a 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, and 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;
∙ the Metropolitan Court in Hungary submitted a preliminary reference to the CJEU on the lack of access to the reasons why someone constitutes a threat to national security in asylum procedures, on the lack of individual assessment of withdrawal of refugee status due to the binding opinion of the security agency, and on the limited judicial review;
∙ a right to request suspensive effect of an expulsion decision based on national security grounds is denied in Hungary;
∙ detention on national security grounds in high-security detention facilities is automatic in Poland; and
∙ Migrants of Chechen origin in Poland were falsely accused of supporting ISIS, but were able to rebut the accusations due to the access to the evidence based on which the accusations were made.
In all three countries it is accepted and confirmed by national case law that despite the denial of access to the applicant, the right to a fair trial is ensured because the courts have access to classified data. It is interesting to see that such understanding of the right to a fair trial, the principle of equality of arms and adversarial procedure are not shared by several other Member States, where the parties to the procedure must have the same access to all the legal and factual reasons and information available to the court. Therefore, there is a clear need to further legislate the matter at the European level.
The study concludes with several recommendations to Cyprus, Hungary and Poland and the European Commission.