R v. Secretary of State for the Home Department, Ex parte Sarabjit Singh Sahota And anr

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Appellant)
v
SARABJIT SINGH SAHOTA
(Respondent)
MOHAMMED ZEGHRABA
(Appellant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

23 April 1997 Court of Appeal: Stuart-Smith, Otton, Judge LJJ Indefinite leave-non EC citizens-spouses of British citizens and EC workers in United Kingdom-granted limited leave to enter-applications for indefinite leave refused-wives had not been living and working in the United Kingdom for four years-whether in reliance on EC law appellants entitled to indefinite leave-whether two distinct systems of immigration control, national and EC-whether one integrated system of rules. Immigration Act 1988 s. 7(1): Immigration (European Economic Area) Order 1994 ss. 3,6: HC 251 paras. 50, 51: EC Treaty (as amended) art. 6: Council Directive 681360 arts. 2, 4.4, 6,7: Council Directive 731148: Council Regulation 1612168 arts. 1,7,10. Two appeals from the Tribunal, heard together as raising to same issue of law. Sarabjit Sahota and Mohammed Zeghraba were citizens of India and Algeria respectively. They were each the husband of an EC worker exercising EC rights in the United Kingdom. On entry to the United Kingdom they had been granted limited leave. They both subsequently applied for indefinite leave: their applications were refused. They appealed. Their appeals were dismissed by adjudicators. On appeal to the Tribunal the appeal of Sahota was allowed: by a differently constituted Tribunal the appeal of Zeghraba was dismissed. The Secretary of State appealed in the case of Sahota: the Court of Appeal granted leave in the case of Zeghraba. The Secretary of State contended that the husbands were not entitled to be granted indefinite leave until their wives had resided and worked in the United Kingdom for four years. The court identified the issue in these terms: "whether spouses of citizens of the United Kingdom who are not themselves nationals of any Member State of the Community are entitled to be granted indefinite leave to remain in the United Kingdom when they have entered from another Member State accompanying their spouses who have returned to the United Kingdom to work".

Held:

1. The authorities showed that the systems of EC and national law in relation to immigration control were regarded as distinct. There was no authority for the proposition that as a matter of Community law they should be regarded as a single system.

2. The wives of the respondent Sahota and the appellant Zeghraba were British citizens and did not rely on their Community rights in returning to the United Kingdom. However to establish the extent of their husbands' rights under Community law it was necessary first to establish their own rights under EC law. Their husbands' rights derived from their rights and were equal to them.

3. In the circumstances the decisions of the Secretary of State were correct.

R Plender QC for the Secretary of State P Duffy and T Eicke for Sahota and Zeghraba

Cases referred to in the judgments:

R v Saunders [1979] ECR 129. R v Pieck [1980] ECR 2171. Monson and Jhanjan v The Netherlands [1982] ECR 3723. Cannela Castelli v Office National des Pensions pour Travailleurs Salarijs (ONPTS) [1984] ECR 3199. Panagiotis Giagounidis v Stadt Reutlingen [1991] ECR 1-1086. R v Immigration Appeal Tribunal ex parte Surinder Singh [1992] ECR 1-4265: [1992] Imm AR 565. R v Human Fertilisation and Embryology Authority ex part Blood [1997] 2 WLR 806: [1997] 2 All ER 687.

JUDGE LJ:

Amarjit Kaur Sahota and Maria Zeghraba are British citizens with a right of abode in the United Kingdom and citizens of the European Community.

Sarabjit Singh Sahota

In 1989 Amarjit Kaur Sahota went to live in Germany, exercising her rights under article 48 of the European Community Treaty. On 7 March 1990 she married Sarabjit Singh Sahota, a citizen of India. At the time they were both lawfully resident and working in Germany. On 26 March 1993 she was issued with a German residence permit and she worked in Germany from not later than 1 June 1993 until April 1994. She returned to England on 26 April 1994. Her husband accompanied her. He had no entry clearance. He was given leave to enter as a visitor for six months, with a prohibition against taking employment. They went to live together in Leicester. On 8 August he applied for indefinite leave to remain in the United Kingdom on the basis that Mrs. Sahota was exercising her "European Community (Union) rights and her husband was entitled to leave to remain following the decision in the case of R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department. " On 2 December the application was refused. Instead a residence document valid until 24 November 1999 was issued. No limitations against Mr. Sahota taking employment in the United Kingdom were imposed. The Immigration and Nationality Department understood that the application was made "under the provisions of European law", and pointed out that Mrs. Sahota "has not remained in the United Kingdom for four years and throughout that time fulfilled the conditions in paragraph 257 (iv) of HC 395". By letter dated 20 March 1995, it was acknowledged that the reasons originally given were not "Wholly applicable" but the only significant change was that the reference to paragraph 257 (iv) of HC 395 was amended to paragraph 151 of HC 251. On 12 April her representatives pointed out that Mr. Sahota could not comply with paragraph 151 of HC 251 because she was "not issued with a residence permit" as she did not need one. She had a right of abode in the United Kingdom. It was accepted that Mr. Sahota was not a national of any Member State of the European Community. It was argued that he should be "granted an extension of stay on the same terms as the spouse. The spouse has rights of residence in the UK and therefore Mr. Sahota should also be granted such status". By letter dated 13 June 1995 the Immigration and Nationality Department wrote:

"The application you submitted on behalf of your client was made under the provisions of European law. When such an application is agreed it is deemed that the British citizen has been granted a five-year residence permit and the non EEA spouse is then issued with a residence document in line with that permit.

Consideration may be given to granting Mr. Sahota indefinite leave to remain in the United Kingdom once his wife has completed four years in employment in the United Kingdom from the date on which Mr. Sahota was issued with a resident's document".

The husband appealed to the adjudicator against the refusal to grant him indefinite leave to remain. Although the adjudicator did not agree with the reasoning of the Secretary of State he dismissed the appeal. On 8 May 1996 the Immigration Appeal Tribunal (Chairman: Mrs. R N Mannion) allowed his appeal and granted the Secretary of State leave to appeal to the Court of Appeal. In October 1996, without prejudice to the appeal, Mr. Sahota was granted leave to remain for 12 months and permitted to take up employment without a work permit. It is unnecessary to consider in this judgement whether this grant of leave proceeded on a misapprehension of the facts.

Mohammed Zeghraba

In June 1988 Mohammed Zeghraba entered the United Kingdom as a visitor. He was a citizen of Algeria. The history of his visits to the United Kingdom is chequered and far from clear. In July 1991 he was arrested by immigration authorities. He claimed, untruthfully, that he was already married to a citizen of the Republic of Ireland. He was returned to Algeria. He met Maria Zeghraba. He returned to the United Kingdom using a false passport. In June 1992 the couple married in the United Kingdom under Islamic law. In August he was again removed to Algeria. She went with him to Algeria and their marriage was registered on 5 November 1992. In October he applied for a visa to enter Cyprus. He made a number of false declarations. The authorities in Cyprus refused the visa. On 7 November entry clearance to the United Kingdom was refused on the basis that the marriage may have been entered into primarily for the purpose of achieving entry into the United Kingdom. However for present purposes it is not suggested that the marriage is not a genuine one. On 28 August 1993 a child was born to the couple, and having entered the United Kingdom in circumstances which remain obscure, in September 1993 they moved to the Republic of Ireland. Mrs. Zeghraba worked there for a few months. In January 1994 they returned to the United Kingdom. She started work at a restaurant in Ealing. On 12 February he applied for leave to remain in the United Kingdom as the husband of "an EEC worker and British citizen settled here ... Mr. Zeghraba is now working in the UK and Mr. Zeghraba has an absolute right to install himself in the UK ... We should be grateful, therefore, if you would endorse Mr. Zeghraba's passport accordingly," On 11 May leave to remain was extended until 9 May 1999, and his passport endorsed accordingly, "to enable you to remain here with your spouse who is a European community national exercising a right under the Treaty of Rome in the United Kingdom". An application was then made for indefinite leave to remain "as the spouse of a European Community national who is exercising her right of freedom of movement as a worker under Article 48 of the Treaty of Rome, Mr. Zeghraba has an absolute right to install himself in the United Kingdom by virtue of Article 10 of Council Regulations 1612/68 ... By Article 4 of Council Directive 68/360 you are required to issue Mr. Zeghraba with proof that he may remain for the same period as his wife: ie indefinitely". This was refused on 15 August. The letter from the Immigration and Nationality Department explained:

Your client chose to have his immigration application dealt with under European law rather than the United Kingdom Immigration Rules. His wife was therefore deemed to have been granted a five-year residence permit and Mr. Zeghraba was granted a five-year residence document in line. Under paragraph 151 of the Immigration Rules HC 251 Mr. Zeghraba may qualify for indefinite leave to remain upon application, after his wife has been living and working in the United Kingdom for four years and continues to do so".

No other basis for this application was advanced or considered, and no reference was made on Mr. Zeghraba's behalf to paragraphs 50 and 51 of HC 251. Mr. Zeghraba appealed to the adjudicator against this decision. On 23 January 1996 the appeal was dismissed. His appeal to the Immigration Appeal Tribunal (Chairman: Professor Jackson, Vice-President) was dismissed on 7 June 1996. Leave to appeal to the Court of appeal was granted by Hirst LJ. These appeals therefore raise the identical issue whether spouses of citizens of the United Kingdom who are not themselves nationals of any Member State of the Community are entitled to be granted indefinite leave to remain in the United Kingdom when they have entered from another Member State of the European Community accompanying their spouses who have returned to the United Kingdom to work. Each case has proceeded throughout on the basis that neither the marriage nor the arrangements by which the national of the United Kingdom worked in the Community was a mere device to circumvent ordinary immigration controls. The Immigration Appeal Tribunal sitting in two different constitutions reached inconsistent and conflicting decisions. The Immigration Appeal Tribunal in Sahota concluded:

"The appellant is entitled under Article 4.4 to a residence document which grants him a right of residence in line with the right of residence granted to his wife which, for the purpose of today's hearing, was accepted as being indefinite leave to remain in the United Kingdom."

In Zeghraba the Immigration Appeal Tribunal reasoned:

"The freedom of movement provisions are specifically geared to specific purposes and the Community right of Mrs. Zeghraba to return to this country is not a right to enter for any purpose whatsoever. While the purposes have now been extended from economic to non-economic purposes they still remain essential to the right of residence and requirements of each category are not identical. So in our view Mr. Zeghraba cannot argue that the failure to grant him indefinite leave offends against the freedom of movement provisions of the Community in respect of Mrs. Zeghraba ... We reiterate that Mrs. Zeghraba's right under Community or Union law is to enter and reside in this country for one of the purposes underlying the freedom of movement provisions. Her rights under Community law are defined by and confined to her continuing to qualify for those rights. The fact that she is a British citizen is neither here nor there insofar as the freedom of movement provisions of Community law is concerned."

The Tribunal recorded that Mr. Zeghraba remained free to make an application under domestic law, that is to apply for leave to remain as the spouse of a woman who was settled here. Mr. Richard Plender QC for the Secretary of Sate accepted that Mr. Sahota and Mr. Zeghraba are entitled to return to the United Kingdom to live here with their wives exercising Community rights. The precise extent of those rights depends not on their marriage to nationals of the United Kingdom but on the fact that they were married to and living with British nationals who were working abroad within the Community and then returned to work in the United Kingdom. He also accepted that in addition and as an alternative to Community rights, they were also enabled to utilise the relevant provisions of national law which applied to them as spouses of British nationals, irrespective of Community provisions. He agreed that they were not required to elect between the two schemes, national or Community. If one scheme failed to produce what they required they were entitled to follow up and adopt the alternative scheme. He insisted, however that there were two distinct schemes rather than a single scheme combining the features of both national and Community law. For Mr. Sahota and Mr. Zeghraba, Mr. Peter Duffy submitted that article 4.4 of Directive 68/360 provided his clients with an entitlement to exactly the same rights as those enjoyed by their spouses. These rights represented an amalgam of those provided by Community and national law. The two systems were not watertight. He argued that European law forms part of the domestic law, and referred to R v Human Fertilisation and Embryology Authority ex parte D B (unreported, 6 February 1997)*[1] as an example of that principle in operation. As his clients' spouses right to reside in the United Kingdom was unlimited, his clients were entitled to the nearest equivalent known to national immigration law, namely indefinite leave to remain. His subsidiary submissions were that the decision of the Secretary of State was based on an unacceptable fiction in relation to the entitlement of Mrs. Sahota and Mrs. Zeghraba and served to undermine their rights under national law, and following a late amendment of his grounds of appeal, he suggested that the decision itself constituted adverse treatment in relation to the social "advantages" referred to in article 7.2 of Regulation 1612/68. Despite the refinement of the argument, the resolution of the conflicting principles identified by the respective Tribunals is relatively straight-forward. The first consideration is Community law. Each national of every Member State is a citizen of the Community. He is entitled to move freely within each Member State and to reside and work wherever he wishes in the Community. This "fundamental right" granted to citizens of the Community is secured by a series of measures. Unless normal family life can be enjoyed by each citizen of the Union wherever he is living in the Community the principle of free movement of workers would be seriously undermined. Accordingly non-working spouses-whether or not themselves nationals of any Member State-are enabled to accompany their husbands or wives. The relevant provisions of articles 3, 8 and 48 of the European Community Treaty do not require recital. The principles are clear and well-known. Council Regulations 1612/68/EEC of 15 October 1968 made specific supplementary provision for freedom of movement of workers within the Community. Article 1 provides that:

"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 activity, 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 Member State.

2. He shall in particular have the right to take up available employment in the territory of another Member State with the same priorities as nationals of that Member State."

Article 7 ensures that when employment is taken up there is to be no discrimination between him and nationals of the state in which he is working and that he should enjoy the same "social and tax advantages" that they do while he is present exercising Community rights. Article 10 deals with the position of families and provides that workers' spouses and their dependants who are under the age of 21 years together with other dependants shall, irrespective of their nationality, "have the right to install themselves with the worker who is a national of one Member state and who is employed in territory of another Member State". They also enjoy the same social and tax advantages as those granted under article 7, (Castelli v ONPTS [1984] ECR 3199] and they may make up employment themselves (article 11). Article 10 expressly underlines that the nationality of the accompanying spouse is irrelevant: the entitlement arises from the relationship, not from citizenship of the Union. Furthermore it directly governs the situation which arises when the working spouse is working abroad, that is within each Member State except the one of which he is a national. According to the express terms of Council Directive 68/360/EEC of the same date, 15 October 1968, and on which Mr. Sahota and Mr. Zeghraba rely, the purpose of Regulation 1612/68 is to fix "the provisions governing freedom of movement for workers within the Community" and to "accord" rights and privileges both to nationals of Member States to pursue activities as employed persons, and to members of their families. As the recitals show, Council Directive 68/360 was directed to the abolition of restrictions on movement and residence within the Community for workers and their families together with the "restrictions which still exist concerning movement and residence . . ." The purpose was to ensure that the arrangements for workers in other Member States, together with their accompanying families, should be brought into line with those which applied to nationals of the state in which they were working. Nothing in the recital suggests that this Directive was expressly concerned with the rights and entitlements of workers while they were working in the Member States of which they were nationals. Article 2 imposes obligations on the country from which the nationals wish to travel to work elsewhere in the Community. They are entitled to the freedom to leave their own countries to work elsewhere within the Community. A valid identity card or passport is a sufficient document. Members of their families enjoy the same rights. The appropriate passport valid at least for all Member States and each country which must be passed through to reach each Member State must be issued to them, and if the passport is the only relevant document it must be valid for at least five years. Articles 3 and 4 impose obligations on the Member States to which nationals of other Member States are travelling and in which they will be working. Workers seeking to enter a Member State must produce a valid identity card or passport. On production entry must be granted. An entry visa or similar requirement will not be made of his accompanying family, unless they are not themselves nationals of a Member State, and if so, they must be granted "every facility" to obtain an appropriate entry visa. Article 4 contains corresponding provisions relating to residence, and the granting of a residence permit. This is dependent, at least in part, on the document produced on entry. Similar arrangements were laid down for accompanying members of the family. Article 4.4 provides:

"A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent."

This provision is critical to the success of the cases of Mr. Sahota and Mr. Zeghraba. Directly enforceable rights are created irrespective whether or not the appropriate residence document has been issued (Giadounidis) [1991] ECR 1/1091). The article is concerned with the position of members of the family, including an accompanying spouse, who is not a national of any Member State, and the entitlement of such spouses to reside in a Member State of which the working spouse is not a national and to be provided with appropriate documents-not formally named-granting similar permission to reside as the residence permit issued to the working spouse. Entry documents are not in contemplation in article 4.4. Throughout this Directive documents for effecting entry (passports, identity cards, to a limited extent, visas, and indeed any documentary formality, Pieck [1980] ECR 2171) and those required for residence purposes (permits or residence documents) are distinguished in accordance with their function. Conditions relating to residence permits and in particular their duration are provided by article 6. Their withdrawal and renewal are governed by article 7 which provides:

"1.A valid residence permit may not be withdrawn from a worker solely on the ground that he is no longer in employment, either because he is temporarily incapable of work as a result of illness or accident, or because he is involuntarily unemployed, this being duly confirmed by the competent employment office.

2. When the residence permit is renewed for the first time, the period of residence may be restricted, but not to less than 12 months, where the worker has been involuntarily unemployed in the Member State for more than 12 consecutive months".

Neither article 6 nor article 7 provides for a residence permit, nor any other document, granting indefinite leave to remain in the Member State, and the entitlement to remain may be withdrawn if the worker ceased to exercise his Community rights by giving up employment unless this is the result of the conditions specified in article 7.1. Council Directive 73/148 dated 21 May 1973 does not directly arise for consideration in these appeals. It was concerned to abolish restrictions on movement and residence throughout the Community, not only for the self-employed and those providing services, but also their accompanying spouses. Like Directive 68/360 this Directive appears to be concerned with those who wish to deploy their labour in Member States other than those of which they are nationals. However in Surinder Singh [1992] ECR 1/4265 the European Court of Justice considered the effect of the Directive in the case of a national of India who married a citizen of the United Kingdom. Thereafter they lived and worked together in Germany. On their return to the United Kingdom, after a history which requires no further narrative for present purposes, the immigration authorities took steps to deport him from the United Kingdom, the marriage having by then been dissolved by a decree nisi which at the relevant time had not been made absolute. The question referred to in the European Court of Justice was answered:

"(It) ... must ... be that Article 52 of the Treaty and Directive 73/148 properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the territory of the State of which he or she is a national. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State."

The court reflected not only on the effect of Directive 73/148 but also on Regulation 1612/68 and Directive 68/360, including in particular article 4. The judgment sets out the relevant principles.

"a national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.

He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of his Member State of origin under conditions at least equivalent to those granted them by Community law in the territory of another Member State.

It follows that a national of a Member State who has gone to another Member State in order to work there as an employed person pursuant to Article 48 of the Treaty and returns to establish himself in order to pursue an activity as a self-employed person in the territory of the Member State of which he is a national has the right, under Article 52 of the Treaty, to be accompanied in the territory of the latter State by his spouse, a national of a non-Member country, under the same conditions as are laid down by Regulations No 1612/68, Directive 68/360 or Directive 73/148."

The expression of Community principles is clear and unequivocal. As the claims on behalf of Mr. Sahota and Mr. Zeghraba are based on Community law it is unnecessary to investigate domestic law in detail. Provided they can establish that they are entitled to it, the right of abode enjoyed by Mrs. Sahota and Mrs. Zeghraba exempts them from the general provisions for regulation and control of their entry or re-entry to the United Kingdom. They are entitled to live here, and to return if they have travelled or lived and worked aboard. They cannot be deported. Ignoring as immaterial for present purposes the European Convention on Human Rights, these rights arise under national law. However their spouses do not, on marriage, automatically become entitled to identical rights. For example, their entry into the United Kingdom is subject to immigration control and in certain circumstances an order may be made for their deportation. Section 7(1) of the Immigration Act 1988, coming into force on 20 July 1994 making provision for persons "exercising Community rights and nationals of Member States" provides:

"A person shall not under the principle Act (that is the Immigration Act 1971) require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972."

Self evidently, national law continues to distinguish between British citizens with a right of abode, and citizens of the Community exercising Community rights. The Immigration (European Economic Area) Order 1994 came into force on the same date. The Order did not apply to nationals of the United Kingdom or their families, but to all other nationals within the European Economic Area Agreement (with an irrelevant exception in relation to Liechtenstein). Nevertheless in accordance with the principle in Surinder Singh they would as a matter of Community law be entitled to receive no less favourable treatment. The provisions of the Order are taken directly from and intended to implement the effect of Directive 68/360 and in effect were declaratory in the United Kingdom of the rights to which citizens of the Community had already been entitled under the Directive. Qualified nationals (that is those entering as workers, and undertaking a number of other recognised "activities") were entitled to enter the United Kingdom, and their spouses were permitted to join them as family members with a "right of admission" under regulation 3 and an "entitlement to reside" here without requiring "leave to remain" under the 1971 Act. Nevertheless the entitlement to reside depended on continued qualification under regulation 6 and, in relation to their spouses, the continuing subsistence of the marriage. Indefinite or permanent leave to remain in the United Kingdom was not granted by the 1994 Order to any citizen of the Community nor to his or her spouse any more than a right of abode was created for them by the Immigration Act 1988. Accordingly the claims by Mr. Sahota and Mr. Zeghraba are unsustainable on the basis of domestic law. According to Mr. Duffy's submission Mr. Sahota and Mr. Zeghraba are entitled to indefinite leave to remain in the United Kingdom, that is, an unlimited right to reside, as a matter of Community law. Yet this is not an entitlement envisaged by any relevant Community Regulation or Directive, and would not be immediately available to every citizen of the Community entering the United Kingdom for a qualifying purpose nor, indeed, for his spouse. The privilege would be confined to British citizens and their spouses. If Mr. Duffy's argument were correct, it would follow that the entitlement available to nationals of any other Member State of the Community and their spouses would as a matter of Community law, and in particular article 4.4 of Directives 68/360, be different and more restricted than those available to Mr. Sahota and Mr. Zeghraba. In my judgment this would involve a discriminatory distinction in Community law against citizens of Member States other than the United Kingdom, by granting a privilege in the United Kingdom to United Kingdom citizens not enjoyed by citizens of other Member States entering the United Kingdom in exercise of identical rights of free movement. This is contrary to the fundamental principle of non-discrimination between citizens of the Community, and where applicable, their spouses. Article 6 of the EC Treaty, as amended, is unequivocal:

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

If any further authority is required for the proposition that such discriminatory consequences are unacceptable in Community law, Surinder Singh provides the clearest possible demonstration. Furthermore the decision proceeded on the principle that domestic law did not prevent Member States "from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law" without suggesting for one moment that the same favourable outcome would also arise as a matter of Community law. As the attention of the court was expressly directed to questions of national immigration procedures (see for example paragraphs 4,7 and 12 of the opinion of Advocate General Tesauro), the contrast drawn in the judgment between domestic and Community law, and the recognition that the entitlements under each system could, without any breach of Community principles, be different is striking. Nothing in the principles applied by the court suggested that national rather than Community law could or might be of any relevance to the particular application by Surinder Singh. The systems were plainly regarded as distinct. This conclusion is reinforced by the general reluctance of the European Court of Justice to interfere with the national arrangements unconnected with Community provisions. (R v Saunders [1979] ECR 112). In Monson and Jhanian v Netherlands [1982] ECR 3723 it was said to follow

"...that the Treaty provisions on freedom of movement for workers and the rules adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations governed by Community law."

No authority in Community or national law has been cited in support of the proposition that the two separate systems created independently of each other by the Community and the United Kingdom should, as a matter of Community law, be treated as a single system. Although care must be taken to apply relevant Community provision and give effect to Treaty rights, in the present cases there is in my judgment no sound basis for concluding that the rights enjoyed under Community law should be elided or amalgamated with those which arise under domestic law within the territory of Member States for their own nationals and their spouses. Accordingly I rejected Mr. Duffy's primary submission. The most favourable assessment was made of the entitlement of Mr. Sahota and Mr. Zeghraba under Community law, on which they relied. Mr. Duffy suggested that an important constitutional principle was involved because the process by which their entitlement was assessed depended on a fiction which had no application to their spouses. It is elementary that the executive cannot suspend laws or grant dispensations nor pretend to do so. What happened here however was not so portentous. Ignoring for this purpose only the rights to which Mrs. Sahota and Mr. Zeghraba were entitled under national law, as citizens of the Community they enjoyed Community rights. In order to establish the extent of the rights of their husbands as spouses of "workers" in the Community returning to work in the United Kingdom the Community rights of Mr. Sahota and Mrs. Zeghraba had to be analysed to ensure compliance with article 4(4) of Directive 68/360. Once their Community rights were assessed there could then be an accurate appraisal of the rights of their spouses. As Mr. Sahota and Mr. Zeghraba were United Kingdom nationals they did not need to use their Community rights, and no-one suggested for a moment that the process which was being undertaken might serve to reduce their rights under national law or to suspend or alter them in the slightest degree. In my judgment the process is not open to realistic criticism. In view of my clear conclusion about the principles which apply in these cases it is unnecessary to discuss further in this judgment problems relating to the issue of documents and passports, and arguments about their effect, nor save to a limited extent, to refer to the precise offers made to Mr. Sahota and Mr. Zeghraba or analyse the argument relating to the various paragraphs of HC 251. In this context, however Mr. Duffy's final submission, based on the late amendment to the grounds of appeal in the case of Mr. Zeghraba, asserted that the Tribunal wrongly upheld the decision that he would only qualify to apply for indefinite leave to remain under paragraph 151 of HC 251. Instead he could have relied on paragraphs 50 and 51 and applied for indefinite leave to remain in the United Kingdom after 12 months of residence. Mr. Duffy deployed an interesting argument that a breach of the principle of equal "social advantage" laid down in article 7.2 of Regulation 1612/68 was involved. Although leave was given to Mr. Duffy to argue the point, it is not on detailed analysis practical to express any opinion on the question whether this principle applies, and if so to what extent, to rights of residence. The issue was not raised before the adjudicator or the Tribunal nor, as far as I can ascertain, with the Immigration and Nationality Department. The focus of each enquiry was the application, and refusal, of indefinite leave to remain in the United Kingdom, both of which were concluded before Mr. Zeghraba had been resident in the United Kingdom for 12 months. It is by no means clear that Mr. Zeghraba held any current entry clearance when he sought admission. Without such clearance neither paragraph 50 nor paragraph 51 of HC 251 had any application. In any event the circumstances in which he entered the United Kingdom remain obscure. Finally, in its determination the Tribunal underlined Mr. Zeghraba's entitlement to make whatever application remains open to him under United Kingdom law. All remaining questions in his case should be decided by the appropriate authorities. In my judgment the appeal by the Secretary of State in the case of Sarabjit Sahota should be allowed and the appeal by Mohammed Zeghraba should be dismissed.

OTTON LJ:

I agree.

STUART-SMITH LJ:

I also agree.

DISPOSITION

Appeal in the case of Sahota allowed: appeal of Zeghraba dismissed

Solicitors:

Highfields and Belgrave Community Law Centre, Leicester (for Sahota), Edward McCourt & Co, London, WC1 (for Zeghraba); Treasury Soclitor
 

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[1]* See now [1997] 12 WLR 806.