Ahmad Aradi v. Immigration Officer, Heathrow

AHMAD ARADI v IMMIGRATION OFFICER, HEATHROW

Immigration Appeal Tribunal

[1985] Imm AR 184

Hearing Date: 19 September 1985

19 September 1985

Index Terms:

EEC citizen -- entitlement as EEC worker for husband, a non-EEC citizen to reside with her -- whether an EEC citizen with dual nationality of two Member States can claim the benefit of relevant EEC Regulations while working in one of those Member States by relying on her nationality of the other Member State -- whether a refusal by immigration authorities to treat such a person as an EEC worker in a host country is any abrogation of the rights that flow from the Treaty of Rome.

Held:

The facts are set out in the determination. Held: 1) There is no explicit provision in the relevant Regulations to resolve any issues that arise in consequence of an EEC national enjoying dual nationality of two Member States. 2) The purpose of the relevant Regulations is to ensure equality of treatment between nationals of a Member State and EEC migrant workers in that host state. It is not to create a class of privileged EEC nationals who through dual nationality would enjoy exceptional benefits. 3) In consequence it was no abrogation of the rights accorded to EEC nationals to interpret the Regulations in such a way as not to accord special benefits to those holding dual nationality. 4) Applying settled principles of public international law the immigration authorities on the facts in this case were entitled to treat the wife of the appellant as a British Citizen who was thus outwith the provisions of the relevant EEC Regulations on the freedom of movement for EEC workers.

Cases referred to in the Judgment:

R v Pieck [1981] 3 All ER 46; [1980] 3 CMLR 220. Mousan and Jhanjan v State of the Netherlands [1983] 2 CMLR 221. Diatta v Land Berlin (ruling of the European Court of 13 February 1985) (Proceedings of the Court of Justice 5/85, Case 267/83).

Counsel:

IA Macdonald for the appellant; AR Thomas for the respondent PANEL: RE Maddison Esq (Chairman); JLS Harrison Esq; Dr LP De Souza MC

Judgment One:

THE TRIBUNAL: The appellant is a citizen of Iran, born it is said in 1944. He arrived at Heathrow Airport on 2 October 1984, in possession of an entry certificate issued by the British Embassy Dubai on 19 September 1984. After enquiry it became evident that false representations had been made in obtaining entry clearance. He was refused admission to the United Kingdom and directions were issued for his removal to Iran. He was however granted temporary admission to the United Kingdom and is indeed still here. He appealed against both the refusal to admit him and the removal directions. His appeal was heard by an adjudicator (Sir John Pestell KCVO). He dismissed it in a determination dated 7 January 1985. The appellant sought and on 30 January 1985 was granted leave to appeal to the Tribunal. This is a complex case but by agreement of the parties we heard submissions on only one of the issues raised before the adjudicator. For the consideration of the matter before us, the material facts which are not in dispute may be summarised quite shortly. The appellant had last been in the United Kingdom in 1982. He then knew and had had, it is said, a long-standing relationship with a Mrs Patricia Ann Attia (nee Duffy) whose marriage had been dissolved. The appellant asserted before the adjudicator that his primary purpose in returning to the United Kingdom in October 1984 was to see Mrs Attia. Be that as it may, four days after the appellant was granted temporary admission, that is, on 6 October 1984, he married Mrs Attia, by licence at Hammersmith Register Office. Mr Macdonald's point put very shortly was that the appellant's wife was an EEC worker, a citizen of the Republic of Ireland, working in the United Kingdom. In accordance with the provisions of EEC Regulations she was entitled to have her husband in the United Kingdom. On that basis, the appellant was entitled to remain here. If he were right on that, other questions, as the adjudicator noted, fell to be decided. Mr Macdonald acknowledged however that if he were wrong in his contention that Mrs Aradi was an EEC worker within the meaning of the Regulations, he had no case. We therefore have to look at the circumstances of Mrs Aradi. She was born in County Down, in the province of Northern Ireland on 12 October 1951. Both her parents were born in what is now Northern Ireland and her grand-parents were also Irish. Under the provisions of the Irish Nationality and Citizenship Act [No 26] of 1956 Mrs Aradi acquired citizenship of the Republic of Ireland from the date that Act was passed. That Act, like most Acts dealing with nationality is complex. We did not receive expert evidence on it, but Mr Macdonald who confessed that he at first sight had had difficulties with the Act, told us he had checked its provisions with the Irish Embassy: Mr Thomas, far more expert than us on these matters accepted that Mrs Aradi had Irish citizenship; so for the purposes of this appeal we accept that as a fact. Mrs Aradi however was not aware of her new status in 1956 or indeed at any time before she was legally advised late in 1984. She continued to live in Northern Ireland where she had been born, until she came to Great Britain in 1975. She has never resided in, or indeed visited the Irish Republic. We do not know whether she ever obtained a British passport, but it is common ground that until late 1984 she always regarded herself simply and solely as a British citizen. In fact, since 1956 she had, in the eyes of the government of the Irish Republic, had Irish citizenship. Again we received no expert evidence on the extent to which, in different countries, the concept of dual nationality is recognised, but put loosely, Mrs Aradi has dual nationality. On 14 December 1984 Mrs Aradi was issued with Irish passport No J 677174. Mrs Aradi did not then renounce her British citizenship as she could have done, had she wished, in accordance with the provisions of Section 12 of the British Nationality Act

1981.

If Mrs Aradi, working in London, is regarded as an Irish citizen, then it may be that she is an EEC worker: if Mrs Aradi, working in London is regarded as a British citizen, then she is outwith the provisions of the relevant EEC Regulations. The principal Regulation is Council Reg 1612/68. That Regulation flows from Article 48 of the Treaty of Rome, and Article 7 is also relevant. Article 7 reads:

"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."

Article 48 reads (so far as is relevant) "1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justifed on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission." Article 49 is the enabling article under which, to achieve the purpose of Article 48, Regulation 1612/68 was promulgated. In the introduction to that Regulation, it states, inter alia: "Whereas freedom of movement for workers should be secured within the Community by the end of the transitional period at the latest; whereas the attainment of this objective entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, as well as the right of such workers to move freely within the Community in order to pursue activities as employed persons subject to any limitations justifed on grounds of public polcy, public security or public health; Whereas freedom of movement constitutes a fundamental right of workers and their families; whereas mobility of labour within the Community must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economies of the Member States; whereas the right of all workers in the Member States to pursue the activity of their choice within the Community should be affirmed; Whereas such right must be enjoyed without discrmination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services; Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that equality of treatment shall be ensured in fact and in law in respect of all matters relating to the actual pursuit of activities as employed persons and to eligibility for housing, and aslo that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker's right to be joined by his family and the conditions for the integration of that family into the host country;" The applicable Articles in the Regulation are (so far as relevant): "Article 1 Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such acitvity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State. Article 10 The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State: (a) his spouse and their descendants who are under the age of 21 years or are dependants; Article 11 Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State." There are other consequential Regulations (notably 62/221/EEC) to which Mr Macdonald helpfully referred us, but we think the matter can be decided within the context of what we set out above. We must begin by saying that to our knowledge, and Mr Macdonald and Mr Thoms confirmed that, there is no authority to guide us on the extent (if at all) to which dual nationality has place in EEC law. The novelty of the issue and its importance, inclined us at one time to suggest that a question be formulated for reference to the European Court for a preliminary ruling, in accordance with Article 177 of the Treaty. There might have been some practical difficulties in doing that: we were conscious also that the President of the Tribunal is on record as indicating that such a course might not be as a rule appropriate for the Tribunal to adopt. We therefore concluded that we ought to seek to resolve the issue ourselves, leaving it to be pursued elsewhere, if need be, at the instance of a higher court. Mr Macdonald submitted that on an ordinary reading of the text of the Regulations, there was no bar to their being applicable to those with dual nationality. Referring us to the opinion of the Advocate General Warner (as he then was) in the case of Pieck [1981] 3 All ER 46, he maintained that the freedom of movement being a fundamental right enshrined in the Treaty, must not be abrogated in any way unless such abrogation were specifically laid down. To that we would add that the European Court in the case of Diatta (case 267/83: 13 February 1985) emphasised that Article 10 in particular could not be interpreted restrictively. That we accept, but we are bound to note that nowhere in the Regulations is there any reference to the approach to be adopted in connection with dual nationaltiy. It cannot we think be said that by silence the Regulations automatically embrace the concept of dual nationality nor that the draftsmen had the issue in mind when the Regulations were prepared. We say that because it is quite clear that the somewhat analogous problems which can arise in relation to bodies corporate and which problems are common to all systems of law, have been acknowledged and provided for in EEC law (see for example, for intention, Article 220, and the provisions of various Company law directives and draft directives. Mr Macdonald submitted and we accept, that there is no significance to be attached to the use in some Articles of "a Member State" and in others of "one Member State"; however the invariable use of a singular article strengthens our view that the Regulations were drafted without regard to issues of dual nationality and not with them in mind nor with the intention of their automatically extending to cover such issues and all the consequences that flow therefrom. None of EEC Regulations is exhaustive in its drafting. It is not infrequently necessary to import limiting and qualifying phrases in order to give a reasonable and equitable meaning to them. This can be illustrated by reference to Article 11 of 1612/68 which we set out above. The member of a worker's family has "the right to take up any activity" in the host state. Commentators have observed that applying the general rule of comparability which underlies the prohibition against discrimination in the Treaty of Rome -- that right must be limited (although the Regulation does not say so) to activities permitted to nationals of the host state, and subject to the same conditions (see B Sundberg-Weitman Discrimination on grounds of nationality, Amsterdam 1977 166-7). If our conclusion is that the relevant EEC Regualtions do not provide for issues that flow from dual nationality, is that a conclusion which either interprets them restrictively or derogates from the fundamental rights given by the Treaty to EEC nationals? We think not. The underlying purpose of the Treaty and Regulation provisions is to ensure parity and equality between citizens of one or another Member State: to allow migrant EEC workers to be treated no less favourably than the workers in the host country. We do not think that would be disputed, but if evidence be required, we would refer to the preamble of the Treaty with its expressed anxiety to "reduce differences", and to Regulation 1612/68 which speaks of "equality of treatment . . . in fact and in law". The practical result of extending the provision of the Regulations to the consequences of dual nationality would not advance equality between EEC citizens, but create a class of privileged EEC citizens. They would be those who holding dual nationality would, by advancing claims under one nationality on some occasions derive some benefit and by advancing claims on another occasion under their second nationality, secure other benefits. Until all domestic laws have been harmonised that would be a practical as well as theoretical possibility. It may be, as Mr Macdonald argued, and if we are wrong in our conclusions, that that is the practical consequence of the Regulations -- to create a class of privileged EEC citizens. To interpret the regulations otherwise is not, however to derogate from the fundamental right of all EEC citizens not to be adversely affected in a host Member State because they are not of the nationality of that State. That was a point put to us, in essence, by Mr Thomas. That in our opinion must be so particularly where the dual nationality arises by choice and not by a combination of circumstances which the individual is powerless to avoid. Mrs Aradi could not avoid securing Irish nationality, but she could, if she had so wished, have divested herself of her British citizenship. There may be good reasons why she elected not to do that, but it was her election. On our reading of the Regulations we conclude that an individual is not entitled to claim their benefit on the simple basis of dual nationality, where both nationalities are nationalities of Member States. We make no finding on the position where a person holds dual nationality, one of which nationalities is of a non-Member State, but we think the position would then be different. If before it can be determined whether the Regulations are applicable in any given case, a decision has to be taken as to which of the dual nationalities is to be selected by the determining authority, then we think there is some guidance to be obtained from public international law. If the individual divests himself voluntarily of one nationality, no difficulty arises. We do not think an individual can retain both nationalities and make a different choice from time to time at their own convenience or merely for their own advantage. We think that it must be then a matter to be decided by the relevant authority in the Member State whose administration is faced with the issue. The principles to be applied may be found, we think, in the provisions of the International Convention on certain questions relating to the conflict of nationality laws, signed at the Hague 12 april 1930. We accept that the provisions of that Convention do not cover cases exactly of the kind now before us and of course, obviously taken no cognisance of EEC law. However, the EEC recognises the force of international conventions and we think that nothing since the date of that convention has impeached the validity of the principles laid down. The relevant Articles seem to us to be: "Article 3 Subject to the provisions of the present convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses. Article 5 Within a third state, a person having more than one nationality shall be treated as if he had only one . . . a third state shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected." On the principle laid down in Article 3, the United Kingdom government is entitled to regard Mrs Aradi as a British citizen. On the principle laid down in Article 5, any government other than that of the Irish Republic would conclude, on the facts and circumstances we have set out, that Mrs Aradi should be regarded as a British citizen. She has had no connection with the Irish Republic: she has at all times been closely associated with the United Kingdom. It follows in our view that the United Kingdom government in the circumstances of this case could conclude rightly that because they would be obliged to select one of her nationalities before considering the applicability of the EEC Regulation, they should regard her as a British citizen. It follows, on the setled cases tthat as a British citizen Mrs Aradi is not an EEC worker within the meaning of the Regulations, while she is working in the United Kingdom. We think that is evidence because it is well-settled that to come within the Regulations and to be an EEC worker for that purpose, a national of one Member State must be working (or seeking work) in another Member State (Mousan and Jhanjan v State of the Netherlands [1983] 2 CMLR 221). We are aware that in dealing with these issues we have been in areas where no guidance from settled law could be obtained. We were therefore particularly grateful to both Mr Macdonald and Mr Thomas for their careful but relevant submissions. A number of related issues were canvassed before us but, in view of the line of reasoning we have conlcuded it was right to follow, those issues need not, we think, detain us. Had we decided otherwise and had we had to consider the other issues before the adjudicator, we might well also have felt obliged to have argument on the question whether Mrs Aradi's divorce (and hence her second marriage) was valid according to the law of the Irish Republic and whether that issue would be germane to the appellant, in the circumstances, being the spouse of Mrs Aradi, for the purposes of the EEC Regulations. We did not hear argument on the appeal against destination. We conclude however that if the substance of Mr Macdonald's case on the first issue fails, so does any argument that might be advvanced over destination.

DISPOSITION:

Appeals dismissed

SOLICITORS:

Taylor, Tyrrell, Lewis and Craig.