Bernstein v. Immigration Appeal Tribunal and Department of Employment

BERNSTEIN v IMMIGRATION APPEAL TRIBUNAL and DEPARTMENT OF EMPLOYMENT

Court of Appeal (Civil Division)

[1988] Imm AR 449

Hearing Date: 19 May 1988

19 May 1988

Index Terms:

Work permit -- refusal for a post with low salary and requiring little skill, which it was asserted only a woman would seek to fill -- whether there was discrimination under the Sex Discrimiantion Act -- whether the scheme as operated was contrary to EEC law -- the meaning of 'access to jobs' in Directive 76/207 -- the function of the Department of Employment in administering the work permit scheme. Immigration Act 1971 ss 1(4), 3(2), 13(1), 33: Sex Discrimination Act 1975 ss 13, 29, 50, 85: HC 169 para 100; Treaty of Rome arts 118, 235: EEC Directive 76/207 art 3.

Held:

Appeal from Taylor J. The appellant was a citizen of Zimbabwe who after spending time in the United Kingdom as a working holidaymaker, was refused further leave because the Department of Employment declined to grant a work permit for the full-time post she wished to take. Before the Court it was argued that the position was one at a salary which only a woman would find acceptable and there was indirect sex discrimination in the way that the Department of Employment operated the work permit scheme. It was further argued that the discrimination was contrary to the provisions of EEC Directive 76/207. Held: 1. The Department of Employment in adminsitering the work permit scheme was carrying out an immigration function. Following in re Amin the Sex Discrimination Act 1975 had no application to immigration control. 2. Although EEC Directive 76/207 could, following Marshall v Southampton and South West Hampshire Health Authority have direct effect, its provisions had no relevance to the position of non-EEC nationals seeking entry to, or leave to remain in Member States. 3. The reference in Directive 76/207 to "access to all jobs" means "access by persons who are already lawfully within the Member State and it cannot be construed as having anything to do with the function of government which makes rules and regulations about allowing citizens of non-member States to come into one of the Member States." 4. Following Re the Immigration of Non-Community Workers, article 118 of the Treaty of Rome did not empower "the Commission to interfere with the powers of member states in making their own laws controlling the entry of members of non-member states into their countries."

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex pare Kassam [1979-80] Imm AR 132: [1980] 1 WLR 1037. Savjani v Inland Revenue Commissioners [1981] QB 458: [1981] 1 All ER 1121. In re Amin [1983] 2 AC 818: [1983] 2 All ER 864. Marshall v Southampton & South West Hampshire Area Health Authority (Teaching) [1986] QB 4901: [1986] 2 All ER 584. R v Immigration Appeal Tribunal and the Department of Employment ex parte Bernstein [1987] Imm AR 182. Re Immigration of non-community workers: Federal Republic of Germany and ors v EC Commission [1988] 1 CMLR 11.

Counsel:

Sir Charles Fletcher-Cooke QC and G Warr for the appellant; J Laws for the respondents PANEL: O'Connor, Bingham, Mann LJJ Judgment By-1: O'CONNOR LJ

Judgment One:

O'CONNOR LJ: This is an appeal by Miss Bernstein against the judgment of Taylor J (as he then was) given on 19 December 1986, refusing her application for judicial review. That judgment is reported in [1987] Imm AR 182 where the facts and full reasons for refusing relief can be found. In so far as this is an appeal from that decision, I can deal with it quite shortly. The Immigration Act 1971 and the rules for adminstering it made by the Secretary of State and approved by Parliament provide a comprehensive code governing the entry of persons into the United Kingdom from abroad. By section 1(4): "The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom." Section 3(2) provides: "The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) and particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality)." Miss Bernstein is a citizen of Zimbabwe. There is no dispute that after the expiry in September 1983 of her permission to work in this country as a working holiday-maker she could only remain in the country and work if she obtained a work permit. "Work permit" is defined by section 3 of the Act. It means "a permit indicating, in accordance with the immigration rules, that a person named in it is eligible, though not patrial, for entry into the United Kingdom for the purpose of taking employment." The relevant rule is rule 100 in HC 169 of 1983 which reads so far as material: "In regard to variation of leave to enter with a view to employment, the general position is that where a person wishes to come to work in the United Kingdom the employer must have obtained a work permit before the person sets out. Applications to remain for employment from persons admitted as visitors or students (including those whose studies were financed by Her Majesty's government, an international scholarship agency or by their home government) or from persons admitted for other temporary purposes" -- that is this case -- "should be refused without reference to the Department of Employment unless the conditions subject to which the applicant was given leave to enter left him free to take employment without the consent of the Secretary of State for Employment." That, again, is this case. "In such a case there is still no claim to remain here in employment but it may be appropriate to refer the case to the Department of Employment. Only if that Department is prepared in the particular case to approve the proposed employment may an appropriate extension of stay be granted . . ." I am in no doubt that when administering the work permit system the Department of Employment is carrying out an immigration function. It follows, in my judgment, that Sir Charles Fletcher-Cooke's attempt to distinguish this case from R v Immigration Appeal Tribunal, ex parte Kassam [1980] 1 WLR 1037, approved by the House of Lords in In re Amin [1983] 2 AC 818, must fail. Those cases establish that the Sex Discrimination Act 1975 does not apply to the immigration function of government. Sir Charles had submitted that the Department of Employment's function in administering work permits was at least in part the same as that of the Inland Revenue in Savjani v Inland Revenue Commissioners [1981] QB 458. Not only does that submission fail in limine, but further Miss Bernstein never asked for or received any advice about anything from the Department of Employment. Sir Charles also submitted that section 50 of the 1975 Act, which deals with indirect access to benefits, etc, operated to bring the Department of Employment within the Act. Although not referred to by Lord Fraser in his speech in Amin, the point was before the House in argument: see page 822 of the report. I would dismiss the appeal against the judgment of Taylor J. Unfortunately that is not an end of the matter. This appeal first came before the court in November 1987. At that time the grounds of appeal were confined to saying that the learned judge was wrong to hold that the case was covered by the decisions in Kassam and Amin. Application was made to amend the notice of appeal to enable the appellant to aver that the Treaty of Rome and Council Directive 76/207/EEC required the courts in this country to construe the Sex Discrimination Act 1975 in such a way as to bring the immigration function of government within its provisions or, at least, the work permit function of the Department of Employment. Further, that before deciding that issue this court should refer the question to the European Court of Justice in Luxembourg. This court adjourned the hearing of the appeal to allow the proposed amended grounds to be precisely formulated and thereafter considered by the respondents. This has been done and further affidavits prepared by both sides. As the new grounds suggest that the Department of Employment is or at least may be acting in contravention of EEC law, Mr Laws for the Department did not oppose the application to amend. Although the amendments have been drafted as amended grounds of appeal, they are in effect amended grounds for seeking judicial review. Ordinarily this court would not permit the introduction of new grounds at this time, but in the very exceptional circumstances of this case we thought it right to do so. Before I consider the merits of the amended grounds, I think it necessary to try and identify precisely how it is alleged that the Department of Employment discriminated against Miss Bernstein. In refusing a work permit in November 1983 and again in March 1985 the Department gave its reasons. These show that the application failed on the grounds that: "1. Generally work permits are available 'only for overseas workers who hold recognised professional qualifications or have otherwise attained a high level of responsibility, skill or expertise', and that any experience relied on to satisfy this requirement should have been gained prior to entry. 2. It was a condition of the granting of the permit that there is no 'suitable resident labour available to fill the vacancy in question' -- the letter going on to state that in this case there was no evidence of the advertising generally required to demonstrate a lack of such labour. 3. 'The job as described in the application is not of a high enough level of occupational skill to match that now set for the work permit scheme nor does the salary of @6,480 pa indicate otherwise. For this level of employment, employers are expected to recruit from the resident labour force and, if necessary, provide training.'" It is the salary criterion, as it has been called, that is said to discriminate against women. The evidence is that only women are employed in the capacity in which Miss Bernstein is employed. It is argued that we should infer that this is because no man with like skills would accept employment at that salary level. So it is said were a work permit being applied for for a man, this salary would be much higher and he would satisfy the salary criterion. Therefore women are discriminated against. For my part I am quite unable to accept this reasoning. We have plain evidence from the Department that the salary on offer was not determinative of this application. The Department were doing no more than saying that the salary was a factor in their assessment of the level of occupational skills required for the job. The criteria which the Department apply are fully set out in leaflet OW2 of 1982 where paragraph 3(b) reads: "In general, work permits are available only in respect of employment meeting the following requirements: (a) . . . (b) in general, the vacancy is in an occupation serviced by Professional and Executive Recruitment (PER) and necessarily requires a worker with the qualifications referred to in paragraphs 7 to 9 . . ." I need not read paragraphs 7 to 9, but they show a number of skills and qualified occupations. I will assume that jobs served by PER may carry greater remuneration than those not so serviced, but it remains a criterion of skill and not of pay. I do not think that there are any grounds for saying that there has been discrimination. I must, however, test that conclusion against the Council Directive. The preamble to the Council Directive starts by saying: "Having regard to the Treaty establishing the European Economic Community, and in particular Article 235 thereof . . ." Article 235 of the Treaty provides: "If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures." So we find the preamble reciting the necessary prerequisites, and going on: "Whereas, with regard to pay, the Council adopted on 10 February 1975 Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women; Whereas Community action to achieve the principle of equal treatment for men and women in respect of access to employment and vocational training and promotion and in respect of other working conditions also appears to be necessary; whereas, equal treatment for male and female workers constitutes one of the objectives of the Community, in so far as the harmonisation of living and working conditions while maintaining their improvement are inter alia to be furthered; whereas the Treaty does not confer the necessary specific powers for this purpose; Whereas the definition and progressive implementation of the principle of equal treatment in matters of social security should be ensured by means of subsequent instruments. . .[the Council] . . . has adopted this directive." The complaint which is made is that in operating the work permit system the Department of Employment was in breach of article 3(1) of the directive. Before I read that article, I look first at article 1, which provides: "1. The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as 'the principle of equal treatment'." Article 2: "1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status. 2. This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor. 3. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity." Article 3(1) provides: "Application of the principle of equal treatment means that there shall be no discriminaion whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy."It is said that the work permit system does deal with access to all jobs or posts in this country because it forms part of the machinery for achieving such a job or post. In my judgment, when one looks at the Directive as a whole, "access" cannot be given that meaning. It seems to me to be clear beyond any doubt that it means access by persons who are already lawfully within the member state and it cannot be construed as having anything to do with the function of government which makes rules and regulations about allowing citizens of non-member states to come into one of the member states -- in this case the United Kingdom. Taking that view, it is quite plain that article 3(2) simply has no application to the immigration function in this country. For completeness, that provides: "To [the end set out in article 3(1)], Member States shall take the measures necessary to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended; (c) those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision. Those three paragraphs are also applied to articles 4 and 5, which read. Article 4: "Application of the principle of equal treatment with regard to access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, means that Member States shall take all necessary measures to ensure" -- again the three matters. Article 5: "Application of the princople of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex." I need not read the other articles in the Directive because, as I have said, I am quite clear that "for access to all jobs" article 3(1) means access by persons lawfully in this country, which has nothing to do with the immigration function of government in deciding who may come in. Sir Charles Fletcher-Cooke has submitted that the view which I have formed is not open to the court because of the decision of the European Court of Justice in the case of Re the Immigration of Non Community Workers: Federal Republic of Germany & v EEC Commission [1988] 1 CMLR 11. That case was concerned with a decision of the Commission to require information and consultation about the migration of non-EEC members into member countries. Its scope is best set out by looking at the commencement of Part 2 of the Opinion of the Advocate General on page 15: "The contested decision is based on article 118 of the EEC Treaty . . ." Article 118 provides: "Without prejudice to the other provisions of this Treaty and in conformity with its general objectives, the Commission shall have the task of promoting close cooperation betwen Member States in the social field, particularly in matters relating to . . ." A number of matters are set out, including employment, labour law and working conditions, the right of association and collective bargaining between employers and workers. "To this end, the Commission shall act in close contact with Member States by making studies, delivering opinions and arranging consultations both on problems arising at national level and on those of concern to international organisations." The Advocate General went on: ". . . in the Commission's view, [article 118] empowers it to promote co-operation between Member States in the field of social policy . . . and to organise appropriate consultations to this end' (seventh recital in the premable'). From the point of view of its content, the decision can be broken down into three groups of rules, all addressed to the Member States. Article 1, which subjects them to a series of duties to provide information; aritcle 3, which sets out the objectives of the consultation procedure in which the respective governments are required to participate; and articles 2 and 4, which lay down the relevant procedural rules." I turn next to the commencement of chapter 3 of the Opinion where the Advocate General says: "The centrepiece of the dispute is the interpretation of a primary rule: article 118 of the EEC Treaty. Unlike the Commission, the applicant Member States maintain that that article confers no power on it in the area of migration policies with regard to non-member countries and, above all, that it does not justify the issue of binding acts. It will therefore be appropriate to commence our inquiry by considering that provision and in particular the criteria which have governed its application, the measures which have been based thereon and the practice which the Commission has followed to date with regard to consultations and Member States." I can then turn to the judgment of the court. In deference to the arguments of Sir Charles, who relied in particular on paragraphs 9 to 18 of the judgment, I must read them: "The competence of the Commission 9. The applicant Member States maintain that neither article 118 nor any other Treaty provision empowers the Commission to adopt a binding decision in a field which, moreover, falls within their exclusive juridsiction. The French Republic maintains that matters relating to the conditions of entry, residence and employment of nationals of non-member countries affect the Member States' security and go substantially beyond the social field referred to in article 118. 10. In that connection it should be borne in mind that the first paragraph of article 118 of the EEC Treaty confers on the Commission "the task of promoting close co-operation between Member States in the social field'. Its second paragraph provides that, to that end, the Commission is to act in close contact with the Member States by making studies, delivering opinions and arranging consultations. 11. The first submission rates two separate questions, this is to say whether collaboration between Member States in the social field, as provided for in the first paragraph of article 118, extends to migration policies in relation to non-member countries, and secondly whether the arrangement of consultations, a task conferred on the Commission by the second paragraph of article 118, empowers the latter to issue binding measures. Those two questions should be considered in turn. 12. The first paragraph of aricle 117 of the EEC Treaty, which appears in Chapter 1, 'Social Provisions', of Title II, 'Social Policy', makes it the duty of the Member States to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonization while the improvement is being maintained. Under the second paragraph of article 117 such a development is to ensue not only from the functioning of the Common Market, which is to favour the harmonization of social systems, but also from the procedures provided for by the Treaty and from the approximation of national Legislation. 13. It is with that approximation in mind that article 118 gives the Commission the task of promoting close co-operation between Member States in the social field, particularly in matters relating to employment and working conditions. 14. Consequently, whilst article 118 of the EEC Treaty does not encroach upon the Member States' powers in the social field in so far as the latter is not covered by other provisions of the Treaty, such as, for example, the provisions on the free movement of workers, the common agricultural policy fo or the common transport policy, it nevertheless provides that those powers must be exercised in the framework of co-operation between Member States, which is to be organized by the Commission. 15. The essence of the arguments put forward by the applicant Member States is that migration policy in relation to non-member countries is not part of the social field envisaged by article 118 or, alternatively, that it falls only partly within that field. 16. As regards the applicants' main argument it must be observed that the employment sitaution and, more generally, the improvement of living and working conditions within the Community are liable to be affected by the policy pursued by the Member States with regard to workers from non-member countries. In the preamble to Decision 85/381/EEC the Commission rightly considers that it is important to ensure that the migration policies of Member States in relation to non-member countries take into account both common policies and the actions taken at Community level, in particular within the framework of Community Labour market policy, in order not to jeopardize the results. 17. As early as 1974, in its resolution of 21 January 1974 concerning a social action programme . . . the Council recognised that the migration policies pursued by the Member States affect the Community's social policy, in particular in view of their influence on the Community employment market and on Community workers' employment conditions. In that resolution it acknowledged the need, and expressed the political resolve, to promote consultation on immigration policies vis-a-vis non-member countries. It reiterated that view in its resolution of 9 February 1976 on an action programme for migrant workers and members of their families . . . and in its resolution of 27 June 1980 on guidelines for the Community labour market policy . . . which is referred to in the Commission's decision. The decision also refers to the resolution on guidelines for a Community policy on migration already approved by the Council, which was to be formally adopted on 16 July 1985 . . . 18. It must therefore be held that the argument that migration policy in relation to non-member States falls entirely outside the social field, in respect of which article 118 provides for co-operation between the Member States, cannot be accepted." The court having rejected the main submission by the applicants then went on to consider the alternative submission. There -- and I need not read these into this judgment -- we find the court identifying more closely the ambit of article 118 of the Treaty until we come to some paragraphs which I must read. The court rejected the argument of the French Republic that the whole area of policy on foreign nationals falls outside the social field, but in paragraph 30 of the judgment we have a clear statement from the court. It reads: "30. It must be borne in mind that that power of the Commission must be confined to arranging a procedure for the notification of information and consultation and that in the present stage of development of Community law the subject-matter of the notification and consultation falls within the competence of the Member States. It must also be pointed out that the power which the Commission seeks to exercise under article 118 is simply a procedural one to set up the notification and consultation machinery which is to result in the adoption of a common position on the part of the Member States." In subsequent paragraphs the court struck down the part of the decision which purported to set out as directed the end which the consultations should achieve. In my judgment paragraph 30 of the judgment of the court in the German Workers case makes it quite clear that the court was not suggesting that anything in article 118 empowered the Commission to interfere with the powers of Member States in making their own laws controlling the entry of members of non-member states into their countries. I do not find anything in that case which leads me to think that I am in any way barred from reaching the conclusion on the Directive that I have reached. I conclude that the applicant has failed to show that the Directive applies to her case in any way. In the result I do not think there is any question which this court need send to Luxembourg, and I reject the submissions that have been made in that behalf. For these reasons I would dismiss this appeal.

Judgment Two:

BINGHAM LJ: I agree. The appellant contends that in refusing her a work permit the Department of Employment unlawfully discriminated agianst her as a woman. That contention also founds her challenge to the decision of the Immigration Appeal Tribunal. The complaint of sex discrimination by the Department has been the subject of no factual investigation. Nothing I have seen leads me to think that the criteria applied by the Department in granting or refusing work permits were discriminatory in intention or effect, but in the absence of full enquiry I think it would be wrong to express any concluded view. For purposes of considering the legal arguments advanced on this appeal I shall accordingly make the entirely tentative assumption that the Department might, on investigation, be found to have discriminated against the appellant as a woman in refusing her a work permit. The Department's conduct is said to be unlawful both under domestic and Community law. I consider these heads in turn. Domestic law In reliance on sections 85 and 50 of the Sex Discrimination Act 1975 it is said that the Department's conduct was unlawful under sections 13 and 29 of the Act. In my view, three authorities, each of them binding upon us, preclude acceptance of that submission. In R v Immigration Appeal Tribunal, ex parte Kassam [1980] 1 WLR 1037 the applicant challenged a decision to deport him. The ground of his challenge was that a certain immigration rule, which would have entitled him to remain here had he been a woman, unlawfully discriminated against him as a man. The Court of Appeal did not decide whether the rule was discriminatory, although it would seem plainly to have been so. But the applicant failed because "when the Secretary of State is exercising his discretion in relation to powers granted to him by the Immigration Act 1971, he is not providing a facility within the meaning of section 29 of the Act" (per Ackner LJ at page 1043H; see also Stephenson LJ at page 1043A). In Savjani v Inland Revenue Commissioners [1981] QB 458 a complaint of racial discrimination was upheld by this court on the ground that the Inland Revenue rendered the taxpayer a service in advising him how to obtain a deduction to which he was entitled. Kassam's case was distinguished because in that case the Secretary of State rendered no service and the applicant had no entitlement: per Templeman LJ at page 468D. In R v Entry Clearance Officer Bombay, ex parte Amin [1983] 2 AC 818 the applicant complained of an entry clearance officer's refusal to entertain her application for a special voucher. The officer did so on grounds which plainly discriminated against her as a woman. The applicant's challenge failed (in the judgment of the majority) on two grounds. The first was that the entry clearance officer was not providing a service for would-be immigrants but rather was performing his duty of controlling them (per Lord Fraser at page 835C). The second was that the 1975 Act does not apply to acts done in the course of formulating or carrying out government policy when those acts are quite different in kind from any act that would ever be done by a private person (per Lord Fraser at page 835F). No relevant distinction can be made between the Home Secretary and the entry clearance officer on the one hand and the Department of Employment on the other when the Department (pursuant to paragraph 100 of the immigraitone rules in HC paper 169) is administering one aspect of immigration control. The Department here had no advisory role and rendered no service. The appellant had no entitlement. The Department's act was different in kind from any act which would ever be done by a private person. These considerations are in my view conclusive against the appellant. Section 13(1) of the 1975 Act cannot in my view avail the appellant for reasons convincingly given by Taylor J in his judgment in this case [1987] Imm AR 182 at pages 187-188). Community Law The appellant's case is, in a nutshell, this. The Department's conduct was in breach of article 3 of Council Directive 76/207/EEC ("the Directive"). If its conduct is not unlawful in domestic law that is because full effect has not been given to the Directive as it should have been. But in an action brought against a state authority such as the Department the authority cannot avoid a liability to which it would have been subject had full effect been given to the Directive: Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] QB 401. Therefore the Directive is to be treated as having direct effect and the Department is in breach of it, so any decision founded on the breach cannot stand. The essential starting point of this argument is the contention that discriminatory conduct towards a person in the appellant's position is, or may be, a breach of the Directive. The appellant is a national of a state outside the Community with no right of abode or establishment in any member state. It so happens that she obtained leave to remain and work here for a limited period as a working holiday-maker under paragraph 30 of HC paper 169. But it is not suggested that her presence within this country makes any difference to the question of law which arises. Does the Directive oblige member states to observe the principle of equal treatment in granting permits to non-Community nationals outside the Community seeking leave to enter and work in a member state? I find nothing in the Directive to suggest that it is intended to apply in such a situation. It is made under article 235 of the Treaty, which is a sweeping-up provision with no explicit reference to the treatment of non-Community nationals outside the Community. All the reasoning and all the substantive provisions of the Directive are aptly applied to persons within a member state. None is inapt in that context. If by the Directive the Community were seeking to assert authority in this area, being one not explicitly recognised as within its jurisdiction by any article of the Treaty, Community practice would require a clear identification of that area in the recitals and a clear statement why such an assertion of authority was necessary or desirable in the interests of the Community. One finds neither. If, however, that conclusion is open to doubt, the appellant's argument is in my opinion fatally wounded by the decision of the European Court of Justice in Re The Immigration of Non-Community Workers: Germany and Others v EC Commission [1988] 1 CMLR 11. In that case five member states attacked (some more comprehensively than others) a Commission Decision 85/381/EEC setting up a prior communication and consultation procedure on migration policies in relation to non-member countries. The Decision had been made under article 118 of the Treaty. The court held (paragraph [16]) that the employment situation wihin the Community could be affected by the policy of member states towards workers from non-member countries, and (paragraph [29]) that it was appropriate for the Commission to establish procedures for notification and consultation. But the court made quite clear (paragraph [30]) that at present the subject matter of the notification and consultation falls within the competence of member states and acknowledged (paragraph [34]) that the Commission could not prevent member states implementing drtafts, agreements and measures which it might consider not to be in conformity with Community policies and actions. If the policies of member states in this field are within their competence and they are free (subject to notification and consultation) to follow policies not in conformity with Community policies and actions, I do not think it can plausibly be suggested that member states are in this context obliged to observe the principle of equal treatment. It cannot be said that the validity of a member state's provisions is undermined by failure to notify or consult because this is not a field in which the Community has substantive legislative power. In any event, no such failure has been alleged and it has not been suggested that the obligation to notify or consult existed at the relevant time. If I considered that the appellant's argument on Community law might be correct, I should consider sympathetically her request that a ruling be sought from the Court of Justice. As it is, I consider the law to be clear and there is no question of Community law on which I feel any need for a ruling to enable me to decide the issue. In my judgment the appellant's challenge to the decision of the Immigration Appeal Tribunal and the Department fails on both the grounds argued for these reasons and those given by my Lord. I would accordingly dismiss this appeal.

Judgment Three:

MANN LJ: I also agree that this appeal should be dismissed. I take first the applications in regard to the decisions of the Department of Employment dated 21 november, 1983 and 27 March, 1985, whereby on each occasion the Department refused to grant a work permit in favour of the appellant. The relief sought as against the Department is an order of certiorari to quash those two decisions and an order of mandamus to compel the grant of a work permit. The second claim for relief was plainly misconceived. The decision whether or not to grant a permit was for the Department. The court's jurisdiction is purely supervisory. Sir Charles Fletcher-Cooke argurd that the two impugned decisions were unlawful. His attack was upon two fronts. The weapon upon the first front was the Sex Discrimination Act 1975. Upon the second front it was the Council Directive 76/207/EEC of 9 February, 1976. Each attack must have a separate consideration, but in regard to each it must be remembered that the impugned decisions were taken in the course of the administration of the immigration control. In particular they were taken in regard to a somewhat inaptly expressed application for variation of leave to enter which fell for consideration under paragraph 100 of the Statement of Changes in Immigration Rules, HC 169. As I understood his submissions, Sir Charles asserted that the Department of Employment employed a criterion in regard to the grant of work permits which was such that "the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it." The quotation is from section 1(1)(b)(i) of the 1975 Act. The particular criterion of which complaint was made was as to the level of remuneration. The Department it was said had regard to the level of remuneration proposed. The level fixed by the Department was more achievable by a man than by a woman. I am far from clear as to the extent to which proposed remuneration was taken into account in the impugned decisions and, if so, whether it was in any sense a determinant factor. I am also far from clear that the fixing of a gateway level which excludes those whose market rate is below that level is capable of being an act of discrimination even though more men can pass through the gate than can women. As to that matter we had no evidence. I do not wish to be taken as impugning in any way any of the criteria used by the Department of Employment in deciding whether or not to issue a work permit. However, let it be assumed that those criteria do involve a discrimination aginst women. There can be an illegality by a Department of State only if the act done by the Department -- in this case the refusal of a work permit -- is caught by the application provisions of section 85 of the Act of 1975. In considering section 85, it must ever be remembered that sex discrimination of itself is not unlawful. It is unlawful only in circumstances prescribed by the 1975 Act. The prescribed circumstances here relied upon were those in sections 13 and 29 of the Act. So far as section 13 is concerned, I content myself with an adoption of what Taylor J (as he then was) said in the court below at [1987] Imm AR 182 at pages 187-188. So far as section 29 is concerned, the matter is in my judgment conclusively determined by the majority view in Re Amin [1983] 2 AC 818 at pages 835G, 836A and 849D. I can perceive no difference between the refusal of a work permit which is a condition precedent to a variation of leave to enter. Neither is in the least similar in kind to acts which could be done by a private person. I would refer also to R v Immigration Appeal Tribunal, ex parte Kassam [1980] 1 WLR 1037, especially at page 1042H, and in addition remark that the majority of the House of Lords in Re Amin did not regard the approach of Templeman LJ (as he then was) in Savjani v Inland Revenue Commissioners [1981] QB 458 as inconsistent with the view of their Lordships. For those reasons there is no illegality perceivable by reference to the Sex Discrimination Act. I turn to the Council Directive 76/207/EEC. That directive -- commonly called the Equal Treatment Directive -- is addressed to the member states. It is now clear that: "wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the state where that state fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly." (See Marshall v Southampton Area Health Authority (Teaching) [1986] QB 401 at page 421G.) Sir Charles argued that the interpretation placed on section 85 by the Department, and now by this court, showed that the United Kingdom had failed to implement the Directive in the context of work permits. However, in order to make good his point, Sir Charles would have, amongst other things, to show that the Directive covered discrimination in regard to the admission by a member state of a non-EEC national for work. The Directive is silent upon the admission of non-EEC nationals into a Community territory. Sir Charles was unable to refer to any power in the Treaty by reference to which the Council would have been competent to make a directive by reference to which a regime of admission would have to be administered. I cannot discern any such power. But, more importantly, the European Court of Justice seems to me to have clearly indicated that there is no such power. I refer to Re The Immigration of Non Community Workers: Federal Republic of Germany and Others v EC Commission [1988] 1 CMLR 11, in particular paragraphs 25, 30, 34 and 35. It is quite clear from those paragraphs that the European Commission can by virtue of article 11 of the Treaty require consultation and information but it cannot direct in regard to immigration control. Accordingly, I cannot regard the equal treatment directive as having application to the terms on which a member state admits non-EEC nationals for employment. I regard the matter as clear and would decline a reference to the European Court and would accordingly simply dismiss the application for judicial review against the Department of Employment. It follows that the application against the Immigration Appeal Tribunal must also fail. I add two matters. First, the appellant was in the United Kingdom at all material times. Her presence was not relied upon by Sir Charles. Had he done so, I for my part would have held that there is no difference so far as immigration control is concerned between the granting of a work permit required for entry and the granting of a work permit required for variation of leave. Secondly, Mr Laws argued that, even if the salary component of the criteria was illegal, assuming it to have been applied at all, its excision would have made no difference as other criteria were not satisfied. That is a tempting argument in regard to a discretionary remedy such as relief on judicial review, but I find it unnecessary in the circumstances to express a view upon it. For those reasons I would dismiss this appeal.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused

SOLICITORS:

Colin Raizon & Co: Treasury Solicitor