K2 v. THE UNITED KINGDOM DECISION 3 prerogative power to exclude an individual on conducive grounds while an appeal against deprivation of citizenship was pending. 10. Secondly, relying both on the common-law principle of “fairness” and on European Union law (most notably, the judgment of Janko Rottmann v. Freistaat Bayern Case C-135/08 of 2 March 2010 – see paragraph 44 below), the applicant argued that the Secretary of State was required to make arrangements for him to return to the United Kingdom to instruct his lawyers and appear personally at the appeal hearing. He submitted evidence suggesting that if he were to give evidence by Skype or video-link there would be a risk that he would become of adverse interest to the Sudanese security service (the “NISS”), which would in turn put his safety at risk. His lawyers also gave evidence that they could not fulfil their professional duties to him unless they were able to speak to him face to face and in confidence. 11. Finally, the applicant submitted that the decision to exclude him unlawfully discriminated against him as a former British citizen. 12. The High Court handed down its judgment on 19 July 2011. In rejecting the first submission, it found that, as a matter of language, Parliament had authorised the exercise of the prerogative power to exclude before the right to appeal against the deprivation order had been exercised and/or while it was pending. 13. The High Court also rejected the applicant’s second submission. Insofar as he was seeking to rely on EU law, it found that the Rottmann judgment was of no assistance, since it was distinguishable on the facts and, as matters of national security were within the exclusive competence of Member States, EU law might not be engaged at all by the deprivation of citizenship on this ground. In any case, it considered it “highly doubtful” that EU law imposed any requirement on Member States to permit a non-EU citizen to be physically present in a State in order to challenge a decision to deprive him of citizenship when the Citizens’ Directive denied such a right to excluded EU citizens. With regard to the more general question of fairness, the court did not consider it necessary to reach any firm conclusion on the possibility of the applicant giving instructions and/or evidence from Sudan since it considered that, on balance, he could obtain a Sudanese passport and travel to a safe third country. The applicant would need a passport to leave Sudan lawfully, and the court considered that if he were permitted to enter the United Kingdom to take part in the appeal hearing there was “little likelihood” that he would return. Emergency travel documents would first have to be obtained from the Sudanese Embassy in London, which would alert the authorities to the fact that he could not travel on his British passport. Consequently, it would be open to him to claim that he could not safely return, and he could thereby frustrate the decision to deprive him of his citizenship on grounds of national security.