R v. Secretary of State for the Home Department, Ex parte Yiadom

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE YIADOM

Court of Appeal
Simon Brown, Otton LJJ and Sir Christopher Staughton
7 April 1998

European Community - European Economic Area national - Refusal of leave to enter on grounds of public policy - Whether decision to refuse leave to enter was unreasonable - Whether decision had been improperly taken to service 'economic ends' - Whether EEA national was entitled to in-country right of appeal which could be exercised prior to removal - Whether decision to refuse leave to enter was decision concerning 'entry' or 'expulsion'- Questions referred to European Court of Justice pursuant to European Community Treaty 1957, Art 177 - Immigration (European Economic Area) Order 1994, Art 15(1) - Council Directive 64/221/EEC, Arts 2 (2), 8, 9 The appellant had been born in Ghana and had become a national of the Netherlands following a marriage in 1981. In August 1995 the appellant arrived in the UK with another woman whom she falsely claimed to be her daughter. The appellant was granted temporary admission to the UK whilst her claim to enter was investigated. In March 1996, after a number of inquiries and interviews, the appellant was refused leave to enter on the grounds of public policy pursuant to Art 15(1) of the Immigration (European Economic Area) Order 1994, the Secretary of State having concluded that she had facilitated the illegal entry of many individuals in the past and, unless refused admission, would be likely to do so again in the future. Pending removal the appellant was again granted temporary admission and the restrictions imposed upon her against entering into employment were lifted. On 8 July 1997 Tucker dismissed an application for judicial review against the Secretary of State's decision. The appellant appealed to the Court of Appeal. Before the Court of Appeal the appellant argued: (a) as part of the Secretary of State's reasoning for deciding to exclude the appellant was that 'prosecution and any imprisonment would be at the expense of the British taxpayer', the Secretary of State had acted contrary to Art 2(2) of the Council Directive 64/221/EEC which prohibited exclusion on public policy grounds in order to 'service economic ends'; (b) it was not open to the Secretary of State to conclude that the appellant's exclusion was justified on public policy grounds; (c) Art 9 of the Directive was applicable to decisions concerning entry into the UK and, as such, required that the appellant have an in-country right of appeal against the Secretary of State's decision; and (d) if Art 9 did not apply to entry decisions then the Secretary of State's decision, taken as it was nearly 7 months after the appellant had in fact been inside the UK and maintained for approximately 2 years thereafter, could not realistically be viewed as one of 'entry' but as one concerning the appellant's 'expulsion' as envisaged by Art 9(2) of the Directive. Held - dismissing the appeal in part and staying the remainder of the appeal pending a reference to the European Court of Justice - (1)By stating that the 'prosecution and any imprisonment would be at the expense of the British taxpayer' the Secretary of State was merely invoking the public policy ground in respect of the need to maintain immigration control and to prevent people like the appellant from facilitating the illegal entry of those seeking to escape such controls. Such an approach could not be impugned as a policy invoked for 'economic ends' because Art 2(2) of the Directive 64/221 was aimed at measures designed, for example, to prevent other European Union nationals from competing in the receiving State's labour market. In any event. the Secretary, of State had provided a series of reasons each of which independently made exclusion the appropriate course of action. (2)Applying the principles of European Union law to the present case, the Secretary of State was entitled to exclude the appellant on public policy grounds. The appellant's case did not consist merely of a failure to comply with immigration formalities but also an intention to undermine the substance of UK immigration control, an activity involving both past and possible future conduct.

R v Bouchereau and Re Watson and Belmann applied.

(3)The court referred several questions to the European Court of Justice, namely:(a) whether Arts 8 and 9 of Directive 64/221 applied to decisions concerning 'entry' into the territory of a Member State, (b) whether the UK's domestic law which provided for an appeal from abroad against a refusal for leave to enter on grounds of public policy was compatible with Art 8, and (c) whether, having due regard to the domestic law relating to temporary admission and the process for the examination of applications for leave to enter, a decision to refuse leave to enter, in circumstances where an EEA national had been given permission to work and where implementation of the removal had been delayed by challenges to the legality of the decision, was a decision concerning 'entry' or a decision relating to an 'expulsion' Statutory provisions considered Immigration Act 1971, s 11, Sch 2, paras 2, 8(1), 16(1), (2), 21 Immigration (European Economic Area) Order 1994 (SI 1994/1895), Arts 3(1), 15(1), International Treaties, Conventions and documents referred to in judgment Council Directive 64/221 /EEC, Arts 2, 3(2), 7, 8, 9, Council Directive 68/360/EEC, Art 4(3)(a) Case referred to in judgment R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477,[1986] 1 All ER 717, CA International cases referred to in judgment Commission of the European Communities v Council of the European Union (Case C-170/96), ECJ Commission of the European Communities v The Netherlands [1991] ECR 1-2637, ECJ R v Bouchereau [1978] QB 732, [1978]2 WLR 250, [1981] 2 AlI ER 924, ECJ R v Secretary of State for the Home Department ex parte Gallagher [ 1995] ECR 1 - 4253, ECJ R v Secretary of State for the Home Department ex parte Shingara and Radiom [1997]3 CMLR 703, ECJ Watson and Belmann, Re [1976] ECR 1185, ECJ Mr P. Duffy QC and Mr T Eicke for the appellant Ms E. Sharpson and Mr S. Kovats for the respondent

SIMON BROWN LJ:

Introduction

The appellant is a Dutch national now aged 43. She was born in Ghana but acquired Dutch nationality following her marriage in 1981. On 7 August 1995 she arrived in this country with another woman whom she falsely claimed to be her daughter. The other woman was returned to Ghana; the appellant was temporarily admitted to the UK whilst her claim to enter was investigated. On 3 March 1996, after a number of inquiries and interviews, the appellant was refused leave to enter on grounds of public policy; in a sentence, the Secretary of State concluded that she had facilitated the illegal entry of others in the past and, unless refused admission, was likely to do so again in the future. Pending removal she was again allowed temporary admission. On 17 May 1996 the appellant was given leave to move for judicial review to challenge the refusal of entry. On 8 July 1997 Tucker J dismissed her application. Now before us is her appeal. It raises two central grounds of challenge to the Secretary of State's decision. First it is contended that there is no sufficient basis for restricting the appellant's free movement within the Community: she does not present a genuine or sufficiently serious threat to one of the fundamental interests of this country, and in any event the Secretary of State's reasoning is flawed. This we shall call the conventional JR [judicial review] challenge. Secondly, the appellant argues that she is entitled to the protection of Directive 64/221 and in particular to the benefit of Art 9 as well as Art 8. What she seeks is an in-country right of appeal to the adjudicator, and not merely the out-country right of appeal accorded by domestic law. This we shall call the Arts 8 and 9 challenge. As we indicated at the end of the hearing, we have reached a clear conclusion in favour of the respondent on the conventional JR challenge and a no less clear conclusion that with regard to the Arts 8 and 9 challenge we have real doubts and must accordingly refer a number of questions to the European Court of Justice. With that brief introduction let us turn to set out the material facts in somewhat greater detail.

The facts

As Mr Duffy QC accepted, the appellant has on any view a somewhat chequered immigration history. On 7 April 1980, then still a citizen of Ghana. she (and a Mr Osei) were refused leave to enter the UK as visitors. The immigration officer in Dover concluded his detailed report:

'I considered there existed ample grounds to suspect the chief purpose of her visit was to secure Mr Osei's entry to this country as she had been requested in his letter [a letter from Mr Osei to the appellant seeking her assistance in securing his entry to the UK to seek employment, which had been found upon the search some weeks earlier of another entrant, a Mr Appiah, a UK citizen of Ghanaian origin].'

The appellant has a history of losing (or at any rate claiming to have lost) passports. On 26 May 1985 she sought entry to the UK with a fresh passport which failed to show the 1980 refusal of leave. After questioning on this occasion she elected to make a voluntary departure. In August 1985 the appellant was granted a 5-year UK residence permit. On 20 July 1990 in the Isleworth Crown Court, she was convicted of mortgage fraud for which she was sentenced to 6 months' imprisonment and ordered to pay £2740 compensation. On 27 October 1992, having, earlier reported her Dutch passport stolen, the appellant was issued with a new, one. On 7 August 1995 she arrived at Heathrow from Ghana accompanied by a female. She maintained that this was her 13-year-old daughter Sonia who was included on the passport she presented. The person, however, looked older and was referred to the Port Health Unit for medical examination. The doctor's report concluded:

'Her general appearance was not entirely consistent with her being, 13 years of age in that she looked older facially, and she was noted to have the type of abdominal stretch marks which usually occur during pregnancy.'

A search of the appellant's baggage revealed a birth certificate for a Ghanaian national in the name of Ama Boaity, aged 29, and a second passport, namely the one issued to her on 27 October 1992. The passport which she presented was the one she had claimed to have lost, the expiry date of which had been unofficially altered from 26 April 1995 to 25 April 2000. On 8 August 1995 the appellant's companion was removed to Ghana. Only after the appellant had been investigated by the Benefits Agency in late September 1995 did she admit that the woman had not been her daughter; she maintained instead that it was her niece, Harriet Owusu, whom she claims she was trying to help following a bereavement. The Secretary of State in fact thinks it likely that her companion in August 1995 was Ama Boaity and frankly, having ourselves seen the contemporary photograph, we can readily understand why. Also found in the appellant's luggage on 7 August 1995 was correspondence which itself tended to suggest that she was acting as a facilitator of illegal entry. Based on this (and other) material, Ms Parker, the chief immigration officer with the overall conduct of this case, on 20 August 1996 deposed:

'(20)The Secretary of State regards the facilitation of illegal entry as a very serious matter, which goes to the heart of immigration control. He considers that the applicant had been involved in more than one case of facilitation and that in order to deter her from engaging in such activity in the future it is necessary to exclude her from the UK. Simply to prosecute her would be unsatisfactory for a number of reasons.

(21)First, the deterrent effect of prosecution is likely to be weaker than F that of exclusion. The applicant has already served a sentence of imprisonment. Secondly, if the applicant is able to come and go from the UK, it will be very difficult to monitor whether she is engaged, directly or indirectly, in facilitating others to evade immigration control. By way of illustration, by falsely reporting in 1992 that her passport had been stolen, the applicant was able for a number of years to employ the same modus operandi that she used on 7 August 1995. It is impossible to know how many, if any, other illegal entries she facilitated. It is difficult to see why she should falsely report her 1990 passport stolen save for reasons connected with breach of immigration control. Thirdly, prosecution and any imprisonment would be at the expense of the British taxpayer. Fourthly, the Secretary of State is not confined to considering evidence that would be strictly admissible in criminal proceedings.'

The following, month, on 30 September 1996, the respondent reaffirmed his decision to refuse entry but amended the reasons which had been given in the notice of 3 March 1996 to the following:

'On 7 August 1995 by your own admission you attempted to facilitate the illegal entry to the UK of a person described as Harriet Owusu. Furthermore there is evidence that you have previously been involved in facilitation and that you planned to facilitate other illegal entries in the future. Consequently there is a risk of your involvement in future facilitation. I have considered the circumstances of your case and am satisfied that you would pose a threat to the requirements of public policy if you were allowed admission to the UK.'

Although at one stage of the argument the respondent was disputing the appellant's right to enter the UK in any event given that she was not then economically active, by the end of the hearing it was accepted that the only relevant ground upon which she could be refused admission was that of public policy. Essentially this was because of art 3(1) of the Immigration (European Economic Area) Order 1994 ('the 1994 Order') which is in these terms:

'Subject to Article 15(1), an EEA national shall be admitted to the United Kingdom if he produces, on arrival, a valid national identity card or passport issued by another EEA State.

Article 15(1) provides:

'A person shall not be entitled to be admitted to the United Kingdom by virtue of Article 3 if his exclusion is justified on grounds of public policy, public security or public health;…such a person may appeal against the refusal of admission as if he were a person refused leave to enter and entitled to appeal by virtue of section 13(1) of the 1971 Act, but he may not appeal so long as he is in the United Kingdom.'

As stated, whilst the public policy objection was being investigated, the appellant was granted temporary admission. This was under the provisions of Sch 2, paras 2, 16(1) and 21 to, and s 11 (1) of, the Immigration Act 1971, and it was granted subject to a restriction against her obtaining employment. Following refusal of leave to enter, the grant of temporary admission continued (now under paras 8(1) and 16(2) of the Schedule), and on 31 May 1996 the restriction against employment was lifted. Meantime, in April 1996 the appellant had begun a one-year training course as a nursing care assistant, following which on 18 April 1997, she began to obtain work through an employment agency as a care assistant and home help at a variety of public and private homes. Nevertheless, so far as domestic law is concerned, the appellant pursuant to s 11 is still deemed not to have entered the country and is subject, therefore, to removal directions.

The conventional JR challenge

Turning to the appellant's challenge to her exclusion on public policy grounds, we deal first with a discrete point which arises under Art 2(2) of Directive 64/221:

'Such grounds [ie grounds of public policy, public security or public health] shall not be invoked to service economic ends.'

One of the four reasons put forward by the respondent to explain why simply prosecuting, the appellant for her admitted offence of attempting to facilitate an illegal entry in August 1995 would not be satisfactory was, as stated, that 'prosecution and any imprisonment would be at the expense of the British taxpayer'. That, submits Mr Duffy, is a ground of public policy impermissibly being invoked to service economic ends. We respectfully disagree. The ground of public policy being invoked here is the need to maintain immigration control and to prevent people like the appellant from facilitating the illegal entry of those seeking to escape such controls. That cannot be impugned as a policy invoked for economic ends. Article 2(2) is aimed rather a t measures designed for example to prevent other EU nationals from competing in the receiving State's labour market. What the respondent is explaining in para (21) of Ms Parker's affidavit is why for a variety of reasons the suggested alternative course of prosecution rather than exclusion would not meet the public policy requirements of the situation. Although perhaps not altogether felicitously drafted, we read para (21) in the end as containing not a number of cumulative reasons which in aggregate are being said to justify exclusion rather than prosecution, but rather a series of reasons each of which independently makes exclusion the appropriate course. Why in any event, one may ask, should the UK have to prosecute the appellant rather than refuse her admission? This could hardly be required in the interests of proportionality: the appellant's offence is after all one punishable by a term of 7 years' imprisonment and it must surely therefore be kinder to exclude her. The other grounds of challenge to the respondent's decision can be taken together. Essentially, as stated, Mr Duffy's argument is that it was simply not open to the respondent on the facts to conclude that the appellant's exclusion was justified on policy grounds. There is no doubt about the central principles of EU law in play. They may conveniently be summarised as follows: (1)Derogations from Treaty rights, including, the public policy derogation, must be strictly construed. (2)Exclusion on grounds of public policy must be based exclusively upon the personal conduct of the individual concerned; the deterrence of others from similar conduct is not a legitimate reason for exclusion. (3)Recourse to public policy requires the existence of 'a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.' - see R v Bouchereau [ 1978] QB 732. (4)Mere failure to comply with immigration formalities does not justify exclusion - see Re Watson and Belmann [1976] ECR 1185. Nor in themselves do previous criminal convictions - see Art 3(2) of Directive 64/221. (5)The measures taken to counter the perceived threat must be proportional to it, ie both no more than is necessary to achieve the desired end and proportionate to the extent of the problem. However, the national authorities have a margin of discretion in determining their public policy. Applying those principles to the present case, we see no reason to doubt the respondent's entitlement under EU law to exclude this appellant on public policy grounds. This is not a case of mere failure to comply with immigration formalities; rather there was ample material on which the respondent could conclude that the appellant was intent on undermining the substance of immigration control. Her exclusion, moreover, was based not merely on past conduct but upon the reasonably perceived risk of her undesirable conduct continuing into the future. It seems to us that the decision taken here was comfortably within the margin of discretion accorded to the respondent as a national authority. It is right to note the appellant's affidavit in these proceedings putting forward her account of events and generally seeking to explain away a number of matters relied upon by the respondent. In our judgment however, he was perfectly entitled to give little credence to these purported explanations.

The Arts 8 and 9 challenge

It is convenient at once to set out the text of these Articles:

'Article 8

(8)The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration.

Article 9

(1)Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance of representation as the domestic law of that country provides for.

This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering, expulsion.

(2)Any decision refusing the issue of a first residence permit or ordering expulsion of the person concerned before the issue of the permit shall, where that person so requests, be referred for consideration to the authority whose prior opinion is required under paragraph 1. The person concerned shall then be entitled to submit his defence in person, except where this would be contrary to the interests of national security.' It is common ground that judicial review constitutes one of 'the same legal remedies... as are available to nationals of [the UK] concerned in respect of acts of the administration' so that its availability satisfies the requirements of Art 8 - see R v, Secretary, of State for the Home Department ex parte Shingara and Radiom [1997] 3 CMLR 703. Mr Duffy, however, advances two main arguments as to why that remedy, supplemented as it is under UK law merely by an out-country right of appeal under s 13 of the Immigration Act 1971, is insufficient to provide the appellant with the safeguards to which she is entitled under the Directive. First, he argues that because judicial review constitutes an appeal (for Art 9 purposes) 'only in respect of the legal validity of the decision', the case falls within the second of the three situations specified by Art 9 as requiring the further protection which that Article provides for - for present purposes an in-country right of appeal. That argument it was which was advanced and failed below (rightly, submits Ms Sharpson for the respondent) on the straightforward basis that the decision here in question is a 'decision concerning entry' and one therefore expressly falling within the terms of Art 8 and conspicuously omitted from the scope of Art 9. Mr Duffy's second and alternative argument is that if, contrary to his first submission, Art 9 has no application to decisions concerning entry, the decision in the present case, taken as it was nearly 7 months after the appellant had in fact been admitted to this country - and maintained as it still is 2 years later - cannot realistically be regarded, at least viewed through EU eyes, as one concerning entry rather than, as envisaged by Art 9(2), a decision ordering the appellant's expulsion before the issue of (for this visit) her first residence permit. This second argument Ms Sharpson seeks to counter by reliance upon the clear provisions of s 11 of the 1971 Act which, as already stated, still deems the appellant someone who has not entered the UK whilst she continues, as she does, to be temporarily admitted under the provisions of Sch 2. Somewhat academically Ms Sharpson adds that if, contrary to that argument, Mr Duffy were to overcome the apparent effect of s 11 and establish that under EU law the appellant must be regarded as now having entered the UK, then in those circumstances the appellant would be entitled to an in-country appeal before being removed so the case would not in any event fall for consideration under Art 9: none of the three qualifying situations would arise.

General comments

We think it unnecessary and unhelpful to rehearse the rival submissions on either of these two main arguments in any detail. Suffice it to make the following points in the hope that it may assist those hereafter seised of this case: (1)As to whether Art 9 has any application to decisions concerning entry, the strength of the respondent's case lies in a literal reading of the directive. Article 8, like Art 2(2), in terms refers to decisions 'concerning entry'. Both refer also to the various other measures with which the Directive is concerned: (a) whether to issue or refuse a (first) residence permit; (b) whether or not to renew a residence permit; (c) whether to expel the entrant before any residence permit is issued; (d) whether to expel the holder of the residence permit. Article 9, however, like Art 7 but unlike Arts 8 and 2, ostensibly refers only to these particular four measures: 9(1) to measures (b) and (d); 9(2) to measures (a) and (c).

As against this approach, however, it must be remembered that the entire Directive is concerned with measures (ie refusals or expulsions) taken on grounds of public policy, public security or public health, and it may be wondered why, for example, under Art 5(1) a decision whether or not to refuse a first residence permit is required to be taken within 6 months (of the application and ex hypothesi, therefore, following entry - see Art 4(3)(a) of Directive 68/360), the entrant remaining 'temporarily' meanwhile, if there is no limit to the time during which the receiving State may consider whether or not to refuse entry in the first place.

It is perhaps one thing to refuse admission on public policy (or security or health) grounds upon initial examination at the port of entry; another to admit (purportedly only temporarily) on a prolonged basis, thereby apparently avoiding any of the Art 9 safeguards which logically might be thought no less appropriate in this situation than in others. No doubt to some extent the ECJ is prepared to recognise the distinction between legal entry and physical entry. So much indeed is suggested by the Advocate-General's recent opinion in Commission of the European Communities v Council of the European Union (Case C-170/96). It may be doubted, however, whether it would be prepared to accept this fiction to the full extent provided for under UK law.

(2)Although we were referred to a number of passages in several ECJ cases (both in the opinions of Advocate-Generals and in the judgments), none of them directly addressed the present issue. Mr Duffy relied heavily on R v Secretary of State for the Home Department ex parte Shingara and Radiom and on R v Secretary of State for the Home Department ex parte Gallagher [1995] ECR 1-4253. Neither, however, did we find of particular assistance. (3)The academic commentators appear divided on the point. Wyatt and Dashwood in their European Community Law (Sweet & Maxwell, 3rd edn, 1993) at p 271 express the view that:

'In the case of decisions concerning entry, it will be noted that Article 8 is applicable, but that Article 9 is not, since the latter provision conspicuously omits such decisions.'

Professor Jackson, however, in Immigration: Law and Practice (Sweet & Maxwell, 1996) at para 3-233 states:

'There is no doubt that a determination of an adjudicator or the tribunal constitutes either an appeal or an opinion. Where an appeal lies to the appellate authority from the refusal of admission or residence or from removal or exclusion the necessary opinion therefore is provided for. However if, as in the case of appeals against refusal of admission, an appeal lies only from outside the country, this would offend against the need under Directive 644/221 for an opinion or an appeal satisfying the Directive.'

(4)We should perhaps note certain specific reservations entered by the respondent. First, that whilst, as stated, he accepts that admission cannot be refused to any EU national, irrespective of whether they are a 'qualified person, within the meaning of the 1994 Order (or economically active or exercising Treaty rights as sometimes it is put), except only on grounds of public policy, public security or public health, he does not accept the appellant's arguments as to the effect either of the ECJ's decision in Commission v Netherlands [1991] ECR 1-2637 or of the introduction by the Treaty on European Union of Art 8A(1) into the Treaty, and reserves the right to seek the later removal of those to whom entry is allowed if at any time it appears that they are not in fact exercising Treaty rights. Secondly and this we record was Mr Kovats' argument - the respondent, whilst not in this case objecting to the appellant's judicial review challenge (and the stay on her removal pending its final determination), reserves the right, were he ultimately to defeat this challenge, to seek to apply to any future Mrs Yiadom the principle established in R v Secretary of State for the Home Department ex parte Swati [1986] 1 VRLR 477, ie to contend that an EU applicant refused leave to enter on public policy grounds should thereafter be left to his or her out-country right of appeal. That, he submits, would satisfy the requirements of Art 8 no less than a judicial review challenge. The independent appellate authorities have the advantage of being able to consider fact as well as law and it would be immaterial that the appellant would have to conduct the appeal from abroad; it is not as if the remedy of judicial review itself requires that the appellant be allowed to remain here.

The Art 177 reference

Those matters, however, as stated, are but general comments, offered in the hope that they may give some broad assistance to the Court of Justice. As indicated in our Introduction, we for our part now need and seek that court's assistance and to that end we refer the following questions: (1)Do both Arts 8 and 9 of Council Directive 64/221/EEC on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ English Special Edition 1963-4, p 117) apply to decisions concerning entry into the territory of a Member State, or are decisions concerning entry covered solely by the provisions of Art 8? (2)If the answer to the first question is that Art 8, but not Art 9, of Directive 64/221 applies to decisions concerning entry into the territory of a Member State, are the requirements of Art 8 satisfied by provisions of national law which grant to the national of a Member State who is refused entry into another Member State on grounds of public policy a right of appeal to a court of law which may only be exercised once that person is no longer physically present in the Member State concerned? (3)For the purposes of Arts 8 and/or 9 of Directive 64/221/EEC, where national law:

-permits the competent authorities, as an alternative to detention, to grant 'temporary admission' to a national of another Member State who does not hold a current residence permit onto the territory of the host Member State, without granting that person 'entry' under national law into the Member State concerned; and

-permits the competent national authorities to keep the person concerned on temporary admission until they have completed their inquiries as to whether or not the facts justify measures to exclude that person from the Member State on grounds of public policy.

is a subsequent decision to 'refuse entry' to that person and to exclude her from the territory of the Member State on grounds of public policy a decision concerning entry into the territory of a Member State, or a decision concerning expulsion from the territory of a Member State?

(4)Is the answer to question (3) different if national law permits the competent national authorities to lift employment restrictions initially imposed as a condition of such temporary admission, and those authorities do so after the decision is taken to refuse admission to the national territory, pending the determination of judicial review proceedings to set aside that refusal? (5)Is the answer to question (3) capable of being affected by the length of time taken (a) to decide to 'refuse entry', and/or (b) to implement such a decision by actually removing the person concerned from the territory of the Member State, and if so in what way? (6)Is the answer to question (5) in turn capable of being affected by whether the delay in implementing a decision to 'refuse entry' is due to a challenge to its legality, and if so in what way? Appeal dismissed in part. Proceedings staved pending reference to European Court of justice. Solicitors: Bindman & Partners for the applicant Treasury Solicitor

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