Vittorio Vitale v. Secretary of State for the Home Department

VITTORIO VITALE
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

19 January 1996

Court of Appeal: Staughton, Ward LJJ
Sir Ralph Gibson

Residence-right of residence-EU citizen-whether applicant had right of residence in another Member State when unemployed with no genuine prospect of obtaining employment and without resources to avoid becoming a burden on public funds. Treaty of Rome (as amended) arts. 7(2), 8, 8a, 48, 49, 52, 59, 235: EC Directives 68/360, 90/364, 90/365, 90/366, 93/96: EC Regulation 1612168.

Renewed application for judicial review after refusal by Judge J. The applicant was a citizen of Italy. He arrived in the United Kingdom in June 1993. He stated he was seeking work. As an EU citizen he did not require leave to enter. He became dependent on public funds. The Secretary of State in the fullness of time concluded that the applicant had not sought work with a genuine chance of obtaining work: he concluded that the applicant had therefore no right to remain in the United Kingdom and directed him to leave.

Before the court counsel for the applicant argued that the Maastricht Treaty conferred on the applicant a directly effective right to reside in the United Kingdom even if he were unemployed and was not seeking work with a genuine prospect of obtaining it and even though he was obliged to rely on public funds.

For the Secretary of State it was argued that Antonissen was still good law and the Secretary of State was entitled to put a time limit on the stay of an EU citizen in the circumstances of the applicant.

Held

1. The Maastricht Treaty made no amendment to article 48 of the Treaty of Rome under which the applicant secured entry to the United Kingdom. It followed that Antonissen was still good law and the Secretary of State was entitled to maintain a limit on the permitted stay of a person in the applicant's position.

2. There was no need to refer the matter to the European Court.

P Duffy and P Stanley for the applicant

R Plender QC and Miss G Clark for the respondent

Cases referred to in the judgment:

Van Gend & Loos v Nederlandse Administratie Belastingen [1963] ECR 1.

C.I.L.FLT v Italian Ministry of Health [1982] ECR 3415.

R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR 1-745.

R v Students' Rights: European Parliament v EC Council [1992] 3 CMLR 281.

R v International Stock Exchange of the United Kingdom and Republic of Ireland ex parte Else [1993] QB 534.

Tsiotras v Landes Lauptstadt Stuttgart (Case 171/91 of 26 May 1993, unreported).

Eroglu v Land Baden-Wurttemberg [1994] ECR 1-5113.

Rv Secretary of State for the Home Department ex parte Adams [1995] All ER (EC)-173: [1995] 3 CMLR 476.

R v Secretary of State for the Home Department ex parte Vitale (unreported, QBD, 25 March 1995).

R v Secretary of State for the Home Department ex parte Phull [1996] Imm AR 72.

STAUGHTON LJ: This is the judgment of the Court.

Mr. Vitale is an Italian citizen, now aged 27, who came to the United Kingdom in June 1993. Because he claimed to be seeking work, he did not need leave to enter. In fact he produced no satisfactory evidence that he had made any efforts to find work, at least until shortly before 19 May 1994, which was after he had already launched these proceedings. He became dependant upon income support, which he began to receive in July 1993. When applying for that assistance he asserted on each occasion that he had not been in any form of paid employment during the preceding six months. In an interview at the Hammersmith Job Centre in January 1994 he said that he wanted to find work as a part-time chef or guitar player. He did not want full-time work. He suggested he would only be interested in work in a very limited area of London, and then only between 10am and 4pm. He did not identify any form of employment or potential employer whom he had approached to find work.

The matter was referred to the Home Office. By letter dated 11 February 1994 from the Immigration and Nationality Department, Mr. Vitale was informed:

"It has come to the notice of this department that you have claimed income support since 5th July 1993 and that you are still continuing to claim.

I should like to explain that as a European National you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non-economic capacity provided that you have enough resources to avoid being a burden on public funds.

However, according to our records you are not in employment, self employment or business, nor are you seeking work with a genuine chance of obtaining work. The Secretary of State is therefore not satisfied that you are lawfully resident here under E.C. law and you should make arrangements to leave the United Kingdom."

The effect of that decision was to have brought his recourse to public funds to an end in March 1994 following a decision of the adjudication officer which, it is said, was made pursuant to regulation 21(3)(h) of the Income Support (General) Regulations 1987. This stirred him into some effort to find remunerative employment, and he did begin work as an assistant chef on 19 May 1994. But he was made redundant on 10 July 1994 and has not worked since then. After the termination of that employment he again began to receive income support, until about the time he enrolled at the London College of Printing and Distributive Trades on a course described as NVQ Level 2 Travel Tourism. During that time of study he was not eligible for income support but may well have received some other benefits. The course ended in June 1995 when he made a fresh claim for income support on the basis that he was genuinely seeking work; and that was paid to him until the present day. That may have been an error, it is said, since he had been required to leave the United Kingdom.

Following the Home Office letter of 11 February 1994 and the subsequent cessation of the payment of income support, Mr. Vitale took legal advice. The Kensington Law Centre, acting on his behalf wrote to the Home Office asserting that the decision of 11 February was not in accordance with current European Law and seeking to appeal under the Immigration Act 1971 against it. The Home Office responded on 28 March. The Immigration and Nationality Department explained that Mr. Vitale "has no entitlement to appeal against the letter . . . asking him to leave the United Kingdom". The letter continued that the DSS were not satisfied that Mr. Vitale was "making genuine attempts to find work, nor that he had a realistic chance of finding employment". The letter indicated that the question of income support could be taken up with the DSS and it ended by stressing that no steps would be taken "to enforce Mr. Vitale's departure."

He appealed against the disallowance of income support; that appeal was adjourned pending the outcome of this litigation. He also began these proceedings for judicial review of the Home Office decisions contained in the letters of 11 February and 28 March 1994. On 20 March 1995, apart from making certain declarations with which we have not been concerned, Judge J dismissed the application for judicial review, and refused to refer the matter to the European Court of Justice for its consideration. He gave leave to appeal to this court.

The main issue presented to us by Mr. Duffy on the appellant's behalf is whether the Maastricht Treaty conferred a directly effective right to reside here even when the appellant is neither employed nor seeking work with genuine prospects of obtaining it, and when he does not have sufficient resources to avoid becoming, a burden on the social assistance system of the United Kingdom during the period of his residence. He invited us to refer that question to the European Court of Justice.-The practical issue, of course, is whether or not Mr. Vitale was wrongfully denied income support, for which loss he would wish to claim damages.

The nature and extent of a right of a national of one Member State of the European Union to reside in another Member State must be considered against the changing background of the Treaty of Rome and the Maastricht Treaty. The Treaty of Rome had economic unity as its purpose. Accordingly a right of residence was originally granted only to the economically active nationals of Member States under articles 48 (freedom of movement for work), 52 (freedom of establishment of business), and 59 (freedom of provision of services). Article 48 provided:

"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 justified 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 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."

In pursuance of article 49 and in order to bring about freedom of movement as "a fundamental right of workers and their families", the Council passed Regulation 1612/68 of 15 October 1968 and on the same date adopted Directive 68/360 requiring Member States to grant a right of residence to such workers and the members of their families.

The extent of this right of residence was considered by the European Court of Justice in R v Immigration Appeal Tribunal ex Parte Antonissen [1991] ECR 1-745. In that case a Belgian national arrived in the United Kingdom in October 1984. He made unsuccessful attempts to find work. After his conviction in March 1987 for the unlawful possession of cocaine with intent to supply, he was sentenced to a term of imprisonment and the Secretary of State subsequently decided to deport him. The immigration rules provided that a residence permit should not normally be issued to a national of a Member State if that person had not entered employment within six months from the date of entry to the United Kingdom nor if during that time he had become a charge on public funds. The Queen's Bench Division referred questions to the European Court of Justice for preliminary rulings on whether or not it was lawful to require a worker to leave if he had not found employment within that time limit. The court held:

"11.Freedom of movement for workers forms one of the foundations of the Community and, consequently, the provisions laying down that freedom must be given a broad interpretation...

13.It follows that Article 48(3) must be interpreted as enumerating, in a non-exhaustive way, certain rights benefiting nationals of Member States in the context of the free movement of workers and that freedom also entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment...

21.In the absence of a Community provision prescribing the period during which Community nationals seeking employment in a Member State may stay there, a period of six months, such as that laid down in the national legislation at issue in the main proceedings, does not appear in principal to be insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged and, therefore, does not jeopardise the effectiveness of the principal of free movement. However, if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.

22.It must therefore be stated in reply to the questions submitted by the national court that it is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."

If that case is still good law, Mr. Vitale cannot challenge the lawfulness of the Secretary of State's decision to require him to leave.

There has been a persistent trend to extend the freedom of movement and the freedom of residence-which has so consistently been held to form one of the foundations of the Community. By 1979 the Commission was beginning to exert pressure for a single directive granting a general right of residence to Community nationals whether economically active or not. That had achieved some success by 1990 when three separate directives were made, each subject to a proviso the effect of which was that the beneficiaries of the right of residence in another Member State should not become a burden on the social assistance system of the host Member State. The beneficiaries under Directive 90/366 were students (and members of their families); under 90/365 retired employees and self-employed persons (and their families); and under 90/364:

"Nationals of Member States who do not enjoy this right under other provisions of Community Law and . . . members of their families as defined in paragraph 2 provided that they themselves and members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence."

Each of these directives was made pursuant to article 235 of the Treaty, which empowered the Council to take the appropriate measures if action by the Community should prove necessary to attain one of the objectives of the Community and the Treaty had not provided the necessary powers. Subsequently the validity of the students' directive was challenged and the European Court of Justice held on 7 July 1992 in Re Students' Rights: European Parliament v EC Council [19921 3 CMLR 281 that the legal basis for that measure was not article 235 but article 7(2) which enabled the Council to adopt rules designed to prohibit discrimination on grounds of nationality. That notwithstanding, it was held that an unqualified annulment of the directive would endanger the exercise of a right flowing from the Treaty and that accordingly, even though the directive would be annulled, its provisions were to remain in force until it was replaced by another directive having the proper legal basis. That further directive was made as No 93/96 on 29 October 1993 at the very meeting of the Council which two days later brought the Maastricht Treaty into effect. This Directive contained a provision that:

" Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive not later than 31st December 1993"

Meanwhile, and against that background, the Treaty on European Union ha been signed in Maastricht on 7 February 1992, it originally having been intended that it should come into force on I January 1993. But in the events that happened, implementation was delayed until 1 November 1993.

Maastricht made numerous and far-reaching amendments to the EEC Treaty. For present purposes we must concentrate on the new and no doubt significant concept of citizenship of the Union. This was to give effect to the resolution referred to in the preamble of the Treaty "to mark a new stage in the process of European integration . . . " and also "reaffirming [the States'] objective to facilitate free movement of persons, while ensuring the safety and security of their peoples . . . Article B set the Union the objective to "strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union." The EEC Treaty was amended by the insertion of a Part Two of which article 8 provided:

1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby."

Article 8a, upon which this appeal turns, provided:

"1.Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

2.The Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1; save as otherwise provided in this Treaty, and the Council shall act unanimously on a proposal from the Commission after obtaining the assent of the European Parliament"

The constitutional implications of conferring citizenship were developed in articles 8b-8d, which provided for the right to vote and stand for election, gave certain diplomatic protection and certain rights such as to petition the European Parliament. Article 8e required the Commission to report before 31 December and then every three years on the application of the provisions of this part of the Treaty. The Council was also given certain powers to adopt provisions to strengthen or add to the rights laid down in this part.

In approaching the construction of article 8a, we must bear in mind the judgment of the European Court of Justice in van Gend & Loos [1963] ECR 1 at p 12 that:

"It is necessary to consider the spirit, the general scheme and the wording of those provisions."

Mr. Duffy submits that, interpreted in that way, article 8a confers a free standing directly effective right of residence, which cannot be limited by the domestic law of the host State in the way which found approval in the Antonissen case. Judge J rejected those submissions and in our judgment he was right to do so. The citizen's right to move and reside freely is expressly made subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect. Article 48, as it has been interpreted by the European Court of Justice, does limit the right of residence of the national who is seeking work in another State. Mr. Vitale entered as a worker and his rights to work and to remain here for work are governed by article 48 and the limitations inherent in it. If it had been intended to sweep aside the limitations upheld in Antonissen and to confer a general unfettered right of residence, leaving in place only the limitations expressly referred to in article 48(3) which can be justified on the grounds of public policy, public security and public health, then it would have been necessary to have made that explicit by amendment of article 48. The opportunity was taken to amend article 49 so as to require the Council to issue directives or make regulations setting out the measures required to bring about, by progressive stages, freedom of movement for workers, as defined in article 48. It is inconceivable that the draughtsmen would not have availed of that opportunity to amend article 48, when he had it in mind, if so fundamental a change in the rights of the worker was being contemplated as Mr. Duffy submits. In our judgment there is no room for any argument that Antonissen is no longer good law or that the issue now requires reconsideration by the European Court of Justice.

It seems equally clear to us that article 8a cannot be taken to have replaced the Council Directives 90/364, 90/365 and 90/366. Each of these directives was a measure adopted to give effect to the Treaty, and each of them contained the limitation on the right of residence that the visiting national should not become a burden on the social assistance system of the host Member State. The right of residence conferred by article 8a is, therefore, in our view still subject to that limitation. As for the submission that all nationals now have a general right of residence by virtue of article 8a, this seems to us to ignore the plain words that the article 8a right of residence is made subject to the limitations and conditions contained in measures such as these directives. In our judgment, there is at the moment no unqualified right of residence of the kind claimed by the appellant.

Having reached that clear interpretation of article 8a, it is unnecessary to rule upon the question whether article 8a has direct effect or, more accurately, whether it would have direct effect if it conferred any new right relevant to these proceedings.

We ought however to give our views upon other matters relied on as indicating, one way or the other, whether article 8a presently provides an unqualified right for any national of a Member State to reside in the territory of another Member State. First it is said that, if articles 48 to 66 of the Treaty are now redundant and serve no useful purpose, together with the Directives 90/364, 90/365 and 93/96, they would have been revoked. Against that it is said first, that under the directives but not in the Treaty there is a right for the national of another Member State to be joined by his family, when he is accorded a right of residence. That is indeed the case. The directive relating to students, for example, provides that a student who is a national of a Member State and has sufficient resources shall have a right of residence for himself, his spouse and dependent children even if they are not nationals of a Member State; and the spouse and dependent children may take up employed or self-employed activity. Secondly, Mr. Duffy observes that there are other provisions of articles 48 to 66 which are not redundant. Dr Plender describes both the point on families and those other matters as peripheral.

It does seem odd that a major alteration to community law, such as article 8a is said to be, should be made without any attempt to alter the provisions of the ancien regime or even to indicate in some way that they are almost wholly superseded. However, Mr. Duffy observes that elsewhere in the Treaty one can find a general provision on a topic which is later covered in more detail: see article 6 (as it now is-no discrimination on the ground of nationality) and article 48 (no discrimination on the ground of nationality between workers). We are not confident that the failure to revoke or amend articles 48 to 66 and the directives that we have mentioned is an indication of much weight as showing that Dr Plender's analysis of article 8a is to be preferred.

Next there are two cases which straddle the implementation of the Treaty of European Union (Maastricht), in which the old law is treated as still effective. The first is Tsiotras v Landes-Lauptstadt Stuttgart C171-91, a case decided on 26 May 1993 after the new treaty was agreed but before it came into force. The judgment in paragraph 8 records that the court in the Antonissen case decided that the right of residence was implied in article 48 for those seeking work. It is said that the court might have been expected to mention that another aspect of the Antonissen decision, that is to say the freedom to apply national law in answering how long a person can qualify as seeking work, would no longer be valid when the Treaty of European Union came into force. We cannot give any weight to that point.

The case of Eroglu v Land Baden-Wurttemberg C 355/93 was decided on 5 October 1994, after the Treaty of European Union came into force. Miss Eroglu was the daughter of a Turkish worker in Germany. As such, she was not a national of a Member State; but she enjoyed the benefit of an agreement under which she was to be treated as if article 48 applied. The court in its judgment said this:

"No argument to the contrary can be based on Article 48(3) of the Treaty which, in the field of freedom of movement for workers within the Community, explicitly sets out, in addition to the right to accept offers actually made, the right to stay in a Member State for the purpose of employment. Article 48(3) enumerates in a non-exhaustive way certain rights benefiting nationals of Member States in the context of the free movement of workers (Case C-292/89 Antonissen [1991] ECR 1-745, paragraph 13), and that freedom entails the right for Community nationals to stay in the Member States not only in order to accept offers actually made there, but also to look for employment there (Kus, paragraph 35)."

It is argued that the court would have phrased that passage differently if it had thought that for Community nationals (although not for Miss Eroglu) article 48 had been superseded by article 8a. We consider that there is some force in that point, but not much.

Arguably more significant is the Council's treatment of the Students' Directive. As we have said, this was originally enacted in June 1990 (90/ 366), but was later held to be based on the wrong provision of the Treaty. So a new Directive (93/96) was enacted on 29 October 1993, two days before the Treaty of European Union came into force. Can the draftsman really have overlooked that article 8a would give an unqualified right to a student in any case in two days' time? And why did he provide in article 6 that Member States should adopt laws necessary to comply with the directive by 31 December 1993, which would become ultra vires if it conflicted with an unqualified right under article 8a? Against that it may well be, as suggested by Sir Ralph Gibson in the course of the argument, that replacement of the former Students Directive was a necessary task entrusted to someone who was not immediately concerned with the provisions of the Treaty of European Union.

Fourthly, there are two reports of the Commission that are relied on by Dr Plender for the Secretary of State. The first is dated 21 December 1993. it contains some general observations that rights flowing from citizenship are to be construed broadly, and that the status of rights already flowing from community law is now fundamentally altered. But it also contains this statement:

"At present the right of residence is governed by a number of different regulations and directives. In keeping with the new policy of the Community institutions of making Community law more accessible, the Commission intends to propose the codification of these provisions.

While it is true that the general right of nationals of Member States to reside in other Member States was laid down in community law well before the Treaty of Maastricht came into force, that Treaty has placed this right on a new conceptual basis by enshrining it in the Treaties themselves. Accordingly, it has now been put on a par with other rights central to Community law and is thus in general to be construed broadly."

The report of the Commission on 10 May 1995 is less equivocal. There are these passages at page 9:

"8.Citizens of the Union have not been given general rights of freedom of movement and residence; the exercise of these rights is subject to the limits and conditions laid down by Community law.

9.The Union citizen's right to freedom of movement must therefore be seen in the context of the establishment of the "area without internal frontiers in which the free movement of . . . persons . . . is ensured in accordance with the provisions of this Treaty" (Article 7a, added by the Single European Act).

It has not yet proved possible, however, to meet the target of setting up an area without frontiers for individuals, as no agreement has been reached on the security measures which are recognized as being necessary, both for abolishing the internal frontiers and for harmonizing the systems of checks at external frontiers.

Similarly, when it comes to the right of residence, the Treaty refers back to a complicated series of directives setting out the often restrictive conditions to which each category of person is subject. The Commission has undertaken to condense these directives into a single, simplified instrument in 1995, a task which will be complicated by the disparities between the legal bases and decision-making procedures laid down in the existing instruments, which vary according to the category of person covered.

10.The weakness of the resulting system is that although the principle of freedom of movement and residence is established, its practical application is in some cases linked to directives which are still not complete and in others depends on the introduction of accompanying measures either in areas governed by the Treaty establishing the European Community or in the fields of justice and home affairs of the Treaty on European Union.

In practice, therefore, the Treaty has made no improvement at all on what went before. As freedom of movement and residence are rights of the individual, ordinary citizens' expectations can only have been disappointed."

Of course the Commission is not the arbiter of what the Treaty means; that must be the task of the European Court of Justice. But some weight must be accorded to those views, coming from an institution which has to balance the rights of Member States against the integration of the Community.

Fifthly, there are the opinions of academic writers. Dr Plender referred to two which he described as the most distinguished (and for all we know he may be right). The first was European Community Law by Wyatt and Dashwood1[1] (3rd edn) p. 659:

"According to Article 8a of the EC Treaty, as amended by the T.E.U., every Union citizen is to have the right to move and reside freely within the territories of the Member States, subject to the limitations and conditions laid down by the Treaty and by legislation adopted under it. The new right thus created will not significantly extend the rights of free movement and residence already accorded to nationals of Member States under the EEC Treaty or pursuant to Council Directives. In particular, Article 8a has been so worded as to allow the continued application of conditions imposed by existing legislation to prevent persons who are not economically active from becoming a burden on the social services of the host State. However, it-will not be open to the legislator to make those conditions more restrictive, to a point where they would substantially interfere with the general right conferred by the T.E.U."

Similarly O'Keefe and Twomey on Legal issues of the Maastricht Treaty2[2] take the view that:

"the TEU does not appear to have added anything to the right of free movement and of residence in existing Community law"

but that article 8a(2) could be used as a basis for further legislation.

We were referred to other academic writers; but what is striking is that none gives unequivocal support to the notion that article 8a now gives every citizen of a Member State the unconditional right to reside in any other Member State. There is some tentative support for that view to be found in Martin (Dr Jur. of Brussels University and an administrator at the Commission) La libre circulation des personnes dans l'union européenne3[3] and Hall (the Australian Government Solicitor) Nationality, migration rights and citizenship of the Union4[4]. But that is all, as far as we were told.

None of those matters lead us to doubt the conclusion which we have reached on the meaning of article 8a. Mr. Duffy's primary contention was not that this court should decide the issue of construction of article 8a in his favour but was that the appellant's case requires or justifies reference to the European Court of Justice under article 177: see R v Stock Exchange ex parte Else [1993] QB 534 at 545 D. He cited CILFIT v Ministry of Health, October 1982, Case 283/81 for the proposition that, even if it should appear clear to this court that the appellant's case on article 8a should be rejected, this court remains ". . . entirely at liberty to bring a matter before the Court of Justice if they consider it appropriate to do so . . ." (p. 3430, para. 15); and he asserted that the importance of the issues raised makes it appropriate for this court to take that course. Before Judge J, and in this court, Mr. Duffy pointed to the case of ex parte Adams [1995] All ER(EQ 177, [1995] 3 CMLR 476, as a case in which the Divisional Court (Steyn LJ and Kay J, 29 July 1994), has already referred to the ECJ questions arising under article 8a. Judge J did not find any force, relevant to this case, in that decision to refer or in the reasons stated. He observed that the Adams case was "concerned with the right to move rather than with the right to reside within the territory of Member States and, more significantly, no question arose for decision about the effect of 'the limitations and conditions laid down in the Treaty' to which those rights are subject." Subject to the comment that it was with reference to "limitations and conditions laid down in the Treaty" upon the right to residence only that no question arose for decision, we agree with that observation. The reference to the European Court of Justice in the case of Adams was later abandoned when the exclusion order was withdrawn. In this court Dr Plender has repeated his submission that the construction of article 8a, in its application to the facts of this case, is clear and that there is no justification for a reference to the European Court of Justice. He has cited the case of R v Home Secretary ex parte Phull, decided in August 1995 after the decision of Judge J, in this case., and has submitted that this court there rejected arguments in support of a reference of the European Court of Justice of questions upon the interpretation of article 8a which are similar to those advanced in this case. The key submissions of the applicants in the Phull case were that "since the coming into force of articles 8 and 8a the enjoyment of the relevant Community rights depends on citizenship of the European Union and not upon bringing into play of the free movement rights conferred by articles 48, 52 and 55 and the implementing Regulations and Directives":p.3D:and that "the direct affect of article 8a(l) was to enable a national of Italy or Portugal to remain lawfully within the U.K, whether he was in work or seeking work or not." The court in rejecting that argument, said: "Article 8a refers expressly to limitations and conditions laid down in the Treaty and by the measures adopted to give it effect. This directs attention in particular to article 48 relating to freedom of movement for workers, to article 52 relating to freedom of establishment and to article 59 relating to supply of services." The court in Phull's case had no doubts upon the questions raised such as would warrant a reference to the European Court of Justice. The House of Lords refused leave to appeal without making any reference under article 177. Mr. Duffy, rightly as we think, asserted that the main ground for the decision in Phulls case was that article 8a was inapplicable to the facts, which were wholly domestic and with no connection to EC law. There is, in our view, nothing decisive for this case, on the question of reference, to be found in Phull's case. But it provides some support for Dr Plender's submissions. We have concluded that we should not refer to the European Court of Justice any question, because in our judgment proper construction of article 8a for the purpose of this case, as set out above, is clear. We have in mind the principles stated by Sir Thomas Bingham MR., in ex parte Else, and by the European Court of Justice in the case of CILFIT; and we are mindful of our limitations as judges with experience only of the law in this country. Nevertheless, for the reasons stated, the issue of construction is, in our judgment, capable of receiving only one answer. Save for the limited declaration granted by Judge J, the application for judicial review of the Secretary of State's decisions is dismissed and so is this appeal.

Application dismissed:
leave to appeal to the House of Lords refused

Solicitors: North Kensington Law Centre, Treasury Solicitor


 

[1] D Wyatt & A Dashwood European Community Law London. 3rd ed (1993). [2] 2 D O'Keefe & P Twomey. Legal issues of the Maastricht Trean', London (1994). [3] D Martin. La libre circulation des personnes dans l'union europeenne, Brussels, (1995). [4] S Hall. Nationality migration rights and citizenship of the Union, Dordrecht, (1995).

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