Nijssen v. Immigration Officer, London (Heathrow) Airport and Immigration Officer, Sheerness

[1978] Imm AR 226

Hearing Date: 14 December 1978, 17 January 1979

17 January 1979

Index Terms:

European Economic Community -- National of Member State refused leave to enter -- Applicant not a worker nor wishing to enter in order to seek employment -- Ground of refusal that (inter alia by reason of previous record) likely to become a charge on public funds -- Whether properly refused leave to enter under rule affecting non-Commonwealth visitors -- Whether exclusion improper under the laws of the EEC -- Whether applicant should have had access to appeal procedures before removal -- Whether these questions required or warranted a reference to the European Court of Justice for a preliminary ruling -- Public policy ('ordre public') -- Whether public policy ('ordre public') as understood in EEC law was involved in the refusal of leave to enter -- Treaty of Rome, arts 48, 177 -- EEC Directive 64/221, arts 7, 8 -- Immigration Act 1971, s 13(3), s 19 -- HC 81, paras 13, 52, 65.

Leave to enter -- Refusal -- 'EEC national' -- Ground of refusal that applicant likely to become a charge on public funds -- Applicant neither a worker nor wishing to enter in order to seek employment -- Receipt of 'Supplementary Benefit' during long previous stay in the United Kingdom -- Whether refusal of entry contrary to EEC laws -- Treaty of Rome, art 48 -- HC 81, paras 13, 52, 65.

Held:

The appellant was a national of a member state of the European Economic Community ("the EEC") and as such he had certain privileges under Part V (paras 49-54) of the Immigration Rules for Control on Entry, HC 81. Under para 52 "an EEC national who wishes to enter the United Kingdom in order to take or seek employment... is to be admitted without a work permit or other prior consent". The appellant was on two occasions in September 1977 refused leave to enter after the immigration officer concerned had learnt that he was not coming "to take or seek employment" and that during a great part of three years' previous residence in this country (1974/77) he had been 'in pretty regular receipt of supplementary benefit' from the State; he had, moreover, in defiance of an order of the High Court, been occupying as a 'squatter' premises to which he proposed to return. The appellant was refused leave to enter under para 13 of HC 81 as being a person in whose case "there is reason to believe... he may become a charge on public funds", and he was required to leave the country. On his appeal to an adjudicator, and from the adjudicator to the Tribunal, it was submitted for the appellant that the decisions of the immigration officers were contrary to the laws of the EEC, which it was urged overrode this country's immigration regulations; and it was suggested that two questions should be submitted to the European Court of Justice for a preliminary ruling under art 177 of the Treaty of Rome n1. Those questions concerned (1) the principle of freedom of movement of members of the EEC, and whether previous receipt of Social Security benefits could properly be invoked as a ground of public policy for derogating from that freedom to enter the United Kingdom; and (2) the removal of an EEC national without first allowing him access to appeal procedures. For the Secretary of State it was submitted that there was no obligation on the Tribunal under art 177 to refer the proposed questions to the European Court because there was from the Tribunal's decision (in the words of the proviso in art 177) a "possibility of appeal under internal law", namely by way of certiori and mandamus to the Divisional Court n2; furthermore, as to (1) it was not desirable so to refer these questions because the provisions in the EEC Directives invoked on the appellant's behalf on the freedom of movement within the Community all concerned the mobility of labour and related to 'workers', and upon the agreed facts the appellant was not a 'worker'. As to (2), a right of appeal before removal from the United Kingdom, the appellant did not fulfil the criteria for such a right set out in s 13(3) of the Immigration Act 1971, in that he was not the holder of a current entry clearance or a current work permit; and arts 7 and 8 of EEC Directive 64/221 of 25.2.64 did not avail the appellant, inter alia because he was not a person being refused a residence permit, nor was he being 'expelled' from 'the territory' -- expulsion being synonymous with deportation -- since, having been refused entry, he was not technically in the country so as to be liable to deportation. n1 The English version of art 177 to which the Tribunal's attention was directed was, apparently, a translation used in or before 1973. It is set out on p 230, post. See also footnote 2. n2 The words "possibility of appeal under internal law" appear in art 177 in the English version quoted in the present case. That version was in use in or before 1973, but in 1974 the Court of Appeal were asked, inter alia, to construe a slightly different version in which the words referred to were replaced by the words "judicial remedy under national law". See H. P. Bulmer Ltd v J Bollinger S.A., [1974] 2 All E.R. 1226; [1974] 3 WLR 202. Held, dismissing the appeal and refusing the proposed reference to the European Court of Justice: (i) the appellant had properly been refused admission because he could not bring himself within any of the special provisions of Part V of HC 81, specifically para 52, and therefore the earlier provisions of HC 81 applied, notably para 13 under which visitors who were likely to become a charge on public funds were to be excluded; and (ii) since the appellant was not a 'worker' as understood in EEC law and coming for any of the purposes set out in para 52 of HC 81, art 177 of the EEC Treaty did not apply and, the law being tolerably clear in this case, it was not desirable that the proposed questions be referred to the European Court of Justice for a preliminary ruling; (iii) the appellant was properly required to leave the country before his appeal was entertained inasmuch as s 13(3) of the Immigration Act 1971, indicating that the appellant (not being the holder of a current entry clearance or work permit) only had a right of appeal from abroad, was not ultra vires arts 7 and 8 of EEC Directive 64/221, since the section dealt with the refusal of leave to enter, while art 7 dealt with residence permits and decisions to "expel" which (for the reason advanced by the respondent's representative) should be equated with decisions to make deportation orders; and art 8 could not avail the appellant, since it concerned the right to seek legal redress of administrative decisions.

Counsel:

P Moss of the United Kingdom Immigrants Advisory Service, for the appellant. G. Treadwell for the respondent. PANEL: D. L. Neve Esq (President), P. N. Dalton Esq, A. Hooton Esq (Vice-Presidents)

Judgment One:

THE TRIBUNAL: The appellant Maarten Antonius Nijssen is an EEC national -- a citizen of Holland, 26 years of age. He was refused leave to enter this country on two occasions -- on 13 September 1977 and on 16 September 1977 at Sheerness. He appealed against these refusals. His appeal (against both refusals) was heard by an adjudicator (Miss K. D. Phillips) and was dismissed in each case on 31 July 1978. Miss Phillips granted leave to appeal to the Tribunal. The appeal came before us on 14 December 1978 and we reserved our determination. The facts of this case as found by the adjudicator are not in dispute and are briefly as follows: When he arrived at Sheerness on 16 September 1977 the appellant had been resident in this country, with occasional absences, for three years and two months. In the course of this residence he had at one time been employed on a part-time basis by Campden Community Transport and had done odd jobs on a casual basis. Between January 1975 and May 1977, as agreed by the parties, he had been "in pretty regular receipt of 'supplementary benefit'" from the State. On arrival on 13 September 1977 he gave as his address premises which he had for some time been occupying as a "squatter" in defiance of an order of the High Court and he had with him @ 75. When asked whether he intended to seek regular employment he said that he did not, but that he would support himself by repairing friends' motor cycles. Upon his arrival on 16 September he had @ 50 and said he was working for a Mr Hennessey. When this gentleman was contacted he said that he had employed the appellant on a casual basis doing odd jobs; he had no plans to employ the appellant in the future except on the same basis and could give no guarantee that any money so earned by the appellant would be sufficient to support him. This information was relayed to the appellant, and the immigration officer told him that he had reason to believe that, if admitted, he might claim 'supplementary benefit' as he had in the past. The appellant agreed that he might be forced to do so but contended that he had a right to do so. The immigration officer's statement continues:

"I considered the facts of the case. The appellant had @ 50, no prospects of financial assistance from anyone, no offer or prospects of a secure job from anyone, and had admitted that he might be forced to claim Social Security benefits. He had, over the past three years, lived in 'squat' addresses and would now be returning to one. In view of his past conduct, I did not consider it by any means certain that the appellant would not become a charge on public funds."

The appellant was served with a notice of refusal upon the grounds that his "exclusion was conducive to the public good". n3 This was later amended and fresh grounds substituted, which appear more accurately to indicate the reasons which motivated the immigration officer's refusal. The operative part reads n3 A refusal under para 65 of HC 81. "during your previous stay in the United Kingdom you became a charge on public funds and I have reason to believe that you are again likely to become a charge on public funds". n4 n4 A ground of refusal under para 13 of HC 81 applicable to non-Commonwealth nationals seeking entry as visitors. When the appeal went before the adjudicator two matters were raised on behalf of the appellant. First it was submitted that two questions should be referred to the European Court of Justice for a preliminary ruling. Secondly it was submitted (in a seven-page document of legal submissions) that the appellant was wrongly refused entry under the laws of the European Economic Community, which overrode the immigration regulations, and that in any event Community law required that the appellant should be given a right of appeal against the refusals before he was required to leave this country. The questions which it was proposed that the adjudicator should refer to the European Court of Justice were: "1. In view of the principle of freedom of movement and of the Community's action on social security, is a Member State entitled to rely on the previous receipt of social security benefits as a ground of 'ordre public' (public policy) justifying the exclusion of an EEC national who wishes to enter the territory of that Member State for the purpose of exercising the rights set out in Articles 48, 52 or 59 of the Treaty establishing the European Economic Community? 2. Is refusal of entry and removal of an EEC national without first allowing access to appeal procedures justifiable in the light of Articles 7 and 8 of Directive 64/221? That is to say: (a) does Article 8 of Directive 64/221 have direct effect and create an enforceable Community right? and (b) in view of the prohibition on discrimination between nationals of Member States contained in Article 7 of the Treaty of Rome, does that provision in Article 8 of Directive 64/221 that persons affected by measures of exclusion, refusal of residence or expulsion 'shall have the same legal remedies... as are available to nationals of the State concerned in respect of acts of the administration' entail enjoyment of such remedies under the same conditions as are enjoyed by nationals, who are not confined to exercising their rights from abroad?" The adjudicator, for the reasons given in her determination, declined to refer these questions to the European Court of Justice and dismissed the appeal. Upon the appeal coming before us the same two matters which were before the adjudicator have formed the basis of the appeal. We shall first deal with the suggestion that the two questions (or something like them -- Mr Moss concedes that their actual form is a matter for us) should be referred to the European Court. If we understand him correctly, Mr Moss's carefully researched argument can be summarised as follows: it is implicit in the determination of this Tribunal in the case of Leper n5, heard on 30 March 1977, that the Tribunal is bound to have regard to EEC legislation and not simply to the immigration rules of this country. Section 19 of the Immigration Act 1971 provides for the manner in which immigration appeals are to be determined and requires an appeal to be allowed if it is found that the decision appealed against is not in accordance with the law. By virtue of the Treaty of Rome (the EEC Treaty) and the European Communities Act 1972 "the law" in s 19 must be held to include the laws of the European Community. Article 177 of the Treaty of Rome provides: n5 Leper v Immigration Officer, Folkestone, TH/1548/76(944) d 30 March 1977 (unreported). "The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of measures taken by the institutions of the Community; (c) the interpretation of the statutes of bodies set up by a formal measure of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of one of the Member States, that Court or Tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where such a question is raised in a case pending before a court or tribunal of a Member State, from whose decisions there is no possibility of appeal under internal law, that Court or Tribunal shall be bound to bring the matter before the Court of Justice." Mr Moss contends that there is "no possibility of appeal under internal law" n6 against the decisions of this Tribunal and it is consequently mandatory under art 177 (as it was not before the adjudicator) for the Tribunal to refer this case to the European Court of Justice. Even if we are against him on this submission, and consider that it is not mandatory, Mr Moss submits that it is desirable that we should do so because this case will create an important precedent. In the case of Leper n5. referred to above, the Tribunal held that refusal of entry was justified where an EEC national was "looking to public funds for his or her support", but Mr Moss points out that, when Leper was decided, the later case of Bouchereau n7 was not before the Tribunal. That was a case referred to the Eurpean Court of Justice by a metropolitan magistrate and concerned the recommendation for deportation of a French national. The question of "l'ordre publique" fell to be considered and the judgment of the Court (in its English version) contains the following passage n8: n5 Leper v Immigration Officer, Folkestone, TH/1548/76(944) d 30 March 1977 (unreported). n6 As indicated in footnote 2, ante, the criterion in a later English version (? 1974) of art 177 was the absence of any "judicial remedy under national law". The final sentence of art 177 in the version considered by the Court of Appeal in H.P. Bulmer Ltd v J. Bollinger SA, [1974] 2 All ER 1226, read as follows: "Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice." n7 R v Bouchereau, [1977] 2 CMLR 800, d 27 October 1977. n8 Ibid, at p 825.

"In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation to the social order which any infringement of law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society."

In the face of this, Mr Moss contends that Leper was wrongly decided and that -- even if we are not prepared at this stage to reverse the decision now before us -- we should at least refer the present case to the European Court, as was done in Bouchereau. A further submission by Mr Moss is that to require the appellant to leave this country without first allowing access to appeal procedures was contrary to articles 7 and 8 of Directive 64/221/EEC dated 25.2.64. Article 7 provides:

"The person concerned shall be officially notified of any decision to refuse the issue or renewal of a residence permit or to expel him from the territory. The period allowed for leaving the territory shall be stated in this notification. Save in cases of urgency this period shall be not less than 15 days if the person concerned has not yet been granted a residence permit and not less than one month in all other cases."

Article 8 provides: "The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of the acts of the administration." Mr Moss contends that in the light of these two articles an EEC national who is attempting to exercise his right of freedom of movement is entitled to appeal against the refusal of entry whilst still remaining in the United Kingdom. In reply to these arguments Mr Treadwell's submissions are briefly as follows. It is not mandatory upon the Tribunal to refer this matter to the European Court because there is a "possibility of appeal under internal law" -- by way of Certiorari and Mandamus to the Divisional Court of the Queen's Bench. The right to apply for such orders -- which is essentially in the nature of a right of appeal -- is one which is regularly exercised. Article 177 does not mention a "right of appeal" but a "possibility of appeal", which is clearly wide enough to embrace application for such orders. n9 Therefore the Tribunal is not bound to refer this case. Although it is open to it to do so, Mr Treadwell suggests that it is not particularly desirable because in his submission the provisions of EEC law which have been invoked by Mr Moss have no application to this case for one simple reason -- that the appellant was not at the material times a "worker". In the case of Bouchereau n10 it was not in dispute that M. Bouchereau was a "worker", and that case is therefore clearly distinguishable from this case now before us. An examination of the relevant EEC Directives and Regulations makes it clear that the provisions relating to freedom of movement within the Community are concerned with the mobility of labour and relate to "workers". Such legislation is to be found inter alia in art 48 of the Treaty of Rome, Regulation 1612/68/EEC of 15.10.68, Directive 68/360/EEC of 15.10.68, Declaration 1451/68/EEC of 27.9.68 and Regulation (EEC) 1408/71 of 14.6.71. n9 See footnote 6, ante. n10 R v Bouchereau [1977] 2 CMLR 800; [1977] 3 All ER 365 (QBD); [1977] 1 WLR 414 (QBD). In the proceedings in the Queen's Bench Division (sub nom R v Marlborough Street Magistrate, ex p Bouchereau) on 17.1.77 the issue was whether M Bouchereau, a French national, was eligible for legal aid under the Legal Aid Act 1974 to cover the reference of a question by the Magistrate to the European Court under art 177 of the EEC Treaty. Lord Widgery CJ in the opening words of his judgment noted that M Bouchereau had "been living in this country for some time working as a motor mechanic" and that he was "a migrant worker in the United Kingdom for the purposes of art 48 of the EEC Treaty". Mr Treadwell therefore submits that Mr Moss's arguments can only be valid if we find that the appellant was a "worker" -- or at least (in the words of the Directive on the free movement of workers within the Community and para 52 of HC 81) someone coming "to seek employment". He suggests that upon the agreed facts the appellant was not such a person; and the Tribunal decision in the case of Leper was correct and should be followed by us in this case. As to the claim that the appellant was entitled to be allowed to remain in this country until his appeal had been heard, Mr Treadwell refers to s 13(3) of the Immigration Act 1971, the end of which reads:

"and a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit."

Mr Treadwell submits that articles 7 and 8 of Directive 64/221/EEC have no application to this case. Article 7 deals with the refusal to issue or renew residence permits or the decision to "expel" a person from the territory. "Expulsion" is synonomous with deportation, and a person cannot be "expelled" from a country until he is in it. A person who is refused entry is not technically in the country. Article 7 thus does not apply to the refusal of admission. The meaning of art 8, Mr Treadwell submits, is obscure. We have carefully considered these submissions. In our opinion consideration of the EEC legislation referred to makes it clear that such legislation is intended to deal only with workers, or those coming to seek employment. We accede to Mr Treadwell's argument in this respect. HC 81 in its entirety deals with the control on entry of EEC and other non-Commonwealth nationals. Part V makes special provisions for EEC nationals which, in cases to which they apply, override the earlier provisions of those rules. If an EEC national cannot bring himself within any of these special provisions, the earlier provisions of HC 81 must apply. In this case the appellant's claim would appear to be under para 52 of HC 81 which seems to us to be made in conformity with EEC law and provides: "An EEC national who wishes to enter the United Kingdom in order to take or seek employment, set up in business or work as a self-employed person is to be admitted without a work permit or other prior consent." Unless the appellant in this case could satisfy the immigration officer upon a balance of probabilities that he was a worker, or that he was coming genuinely to seek employment (the other purposes mentioned in the paragraph having no application), the immigration officer was not bound by the EEC Directives and Regulations which have been cited, which are in our view clearly concerned with the mobility of labour, and he was entitled to refuse the appellant admission (see para 13 of HC 81 which stipulates that a visitor is to be refused entry if there is "reason to believe that he may become a charge on public funds"). Should the immigration officer have been so satisfied? In our opinion, upon the admitted facts, he should not. Our attention has been drawn to an article in the New Law Journal of 12 January 1978, dealing with the rights of entry of EEC nationals. Dealing with the right of residence, it considers the definition of the term "worker":

"The term 'worker', although not defined in the Treaty, applies only to persons 'whose work or work potential can reasonably be regarded as forming part of the economic life of one or more of the member States (R v Secchi [1975] 1 CMLR 383, 393). Thus, while the term will include someone who, having left his job, is capable of taking another, it will not apply to an 'idle lay-about' (City of Wiesbaden v Barulli [1968] CMLR 329) or every EEC national 'who in the course of his life may at different times have done a few hours, a few days, or even a few weeks' work' (R v Secchi)."

Applying these standards to the admitted history and statements of the appellant as set out earlier on in this determination, we have no doubt that he was not coming to this country for any of the purposes set out in para 52 of HC 81 and was properly refused admission on the gound that he was likely to become a charge on public funds. For the same reason we do not consider that art 177 of the EEC Treaty enabling us to refer questions to the European Court n11, applies: and since the law is in our opinion tolerably clear, we do not consider it desirable to do so. Lastly we refer to Mr Moss's suggestion that the appellant should not have been required to leave before his appeal had been heard. Section 13(3) of the Immigration Act 1971 clearly indicates that the appellant in this case only had a right of appeal from abroad: but is this section -- as Mr Moss contends -- ultra vires article 7 and 8 of EEC Directive 64/221 which we have quoted? In our opinion it is not. Section 13(3) deals with the refusal of leave to enter. Article 7 deals with residence permits and decisions to "expel", which -- for the reasons advanced by Mr Treadwell -- we consider to refer to decisions to make deportation orders. The two pieces of legislation therefore refer to different matters and do not conflict. Article 8 appears to us to mean that an EEC national shall have the same rights as a United Kingdom citizen to seek legal redress of administrative decisions. We cannot see how it can avail the appellant in this case. n11 In Bulmer v Bollinger, [1974] 2 All ER 1226, the Court of Appeal considered the mandatory and discretionary elements in art 177, and gave general guidance on the factors to be considered in deciding whether reference should be made. See per Lord Denning MR at pp 1232-1236, and per Stephenson LJ at p 1239 (b-f) and p 1241 (a-d). In our opinion, for the reasons we have given, the appellant was properly refused entry on each occasion. His appeal to the adjudicator was properly dismissed. His appeal to this Tribunal is also dismissed.

DISPOSITION:

Appeal dismissed. Reference to the European Court of Justice refused.

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