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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte UNAL NARIN

Queen's Bench Division

[1990] Imm AR 259, [1990] 1 CMLR 682

Hearing Date: 18 December 1989

18 December 1989

Index Terms:

Deportation -- overstayer -- Turkish citizen -- whether the applicant could claim the protection of EEC Directives on the freedom of movement of workers -- the relevance of the "Ankara Agreement". Immigration Act 1971 s 3(5)(a): Treaty of Rome arts 48-50: Agreement establishing an Association between the EEC and Turkey (1963) arts 2, 6, 12, 23, 25, 28; Provisional Protocol art 1; Additional Protocol (1970) art 36.

Held:

The applicant was a citizen of Turkey. He was admitted to the United Kingdom as a waiter: he was granted leave to remain as a student: he became an overstayer. The Secretary of State signed a deportation order. On application for judicial review it was argued that on the basis of the "Ankara Agreement", the applicant enjoyed the protection of the EEC Directives and related legislation on the freedom of movement of workers. That Agreement had envisaged a period of 22 years during which freedom of movement for Turkish workers would be achieved. Relying on Reyners counsel for the applicant argued that the provisions of the Agreement were of such precision as to have direct effect in the absence of specific measures within the Community to implement the Agreement within the period laid down. For the respondent, relying on the principles laid down in Van Duyn, it was argued that the relevant articles of the Agreement could not have direct effect, they lacking the necessary precision and not being unconditional. Held: 1. It was common ground, following Van Duyn that to have direct effect, and to give rise to obligations on which the individual could rely, the obligation had to be clear and precise, unconditional and not subject to the necessity of adopting subsequent rules. 2. On examination of the Agreement, those conditions were not fulfilled: that conclusion was supported by the observations of the European Court in Demirel. 3. The Secretary of State accordingly was entitled to consider the deportation of the applicant without reference to the EEC Directives on the freedom of movement of workers.

Cases referred to in the Judgment:

Jean Reyners v Belgian State (case 2/74): [1974] ECR 631: [1974] 2 CMLR 305. Van Duyn v Home Office (Case 41/74): [1975] Ch 358: [1975] 3 All ER 190: [1974] ECR 1337: [1975] 1 CMLR 1. Meryem Demirel v Stadt Schwabisch Gmund (Case 12/86): [1987] ECR 3719: [1989] 1 CMLR 421.

Counsel:

A Riza for the applicant; R Plender QC and D Pannick for the respondent PANEL: Kennedy J

Judgment One:

KENNEDY J: This is an application for judicial review of a decision by the Secretary of State to implement a deportation order made against the applicant, a Turkish national, who has been in the United Kingdom for about nine years. He came initially to work as a waiter, was allowed to stay for a time as a student, but when his leave to remain expired and was not renewed, he disappeared. In February 1986, a deportation order was signed. He appealed against that order, without success. In March 1986, he married a British citizen and sought leave to remain on that basis, but leave was refused. He was then faced with the decision which it is sought to challenge in these proceedings. The proceedings were commenced on 5 July 1988 and, as Mr Riza for the applicant concedes, it was only then that for the first time it was contended that the deportation order was illegal. The case now being put forward on behalf of the applicant is quite simple. Mr Riza contends that under the terms of an agreement between the EEC and Turkey, freedom of movement of workers between member states of the Community and Turkey had to be achieved by late 1986. The applicant, he contends, is entitled to benefit from those provisions, and so he cannot be deported, save on grounds of public policy, public security or public health. It is conceded on behalf of the applicant that the main submission which he makes is not, to use Mr Riza's words, "free from difficulty". He submits that I should now refer the matter to the European Court. In the alternative, Mr Riza originally submitted that even if, as he put it, the terms of the agreement are not "directly applicable in the domestic legal order", they create considerations which the Secretary of State ought to have taken into account when deciding whether or not to deport. At the very end of his submissions in reply, Mr Riza abandoned that alternative way of putting the case on behalf of the applicant in the light of what he concedes to be overwhelming authority, and I need say no more about that particular submission. For the respondents, Mr Plender submits that both as a matter of construction and upon authority, it is clear that the terms of the agreement upon which the applicant wishes to rely do not give rise to rights which can be enforced by an individual. First it is necessary for me to identify the terms of the agreement relied upon. The trail starts with article 238 of the Treaty of Rome which enables the Community to enter into agreements with other states. So there came into existence the Agreement establishing an association between the EEC and Turkey which was signed at Ankara on 12 September 1963 and which is reproduced at section 2 of the bundle. It is clear from article 2 of the Agreement that the aim of the Agreement was to strengthen ties between the EEC and Turkey whilst giving Turkey time to develop its economy, improve its level of employment and the living conditions of its people, to a point at which it would be possible to contemplate Turkey joining the EEC. It is common ground that Turkey has not yet joined the EEC. To the end that the Agreement had in view, a customs union was to be progressively established in three stages. The detailed rules for the first or preparatory stage were set out in the Provisional Protocol to the Agreement, to which I shall return after looking at some of the other articles in the main Agreement. Article 6 of the Agreement provides for the contracting parties to meet in a Council of Association upon which the Agreement confers certain powers. Article 12 of the Agreement reads thus: "The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them." Articles 48, 49 and 50 of the Treaty, are concerned with free movement of workers within the European Economic Community. Returning to the 1963 Agreement, article 23 sets out who are to be members of the Council of Association, and provides that it is to act unanimously. Article 25 provides that the contracting parties may submit to the Council of Association "any dispute relating to the application or interpretation of this Agreement which concerns the Community, a Member State of the Community, or Turkey". Finally, article 28 provides that as soon as the operation of the Agreement has advanced far enough to justify envisaging full acceptance by Turkey of the obligations arising out of the Treaty of Rome, the contracting parties are to examine the possibility of Turkey acceding to the European Economic Community. Returning now to the Provisional Protocol, article 1 provides that four years after entry into force of the main Agreement, "the Council of Association shall consider whether, taking into account the economic situation of Turkey, it is able to lay down, in the form of an additional Protocol, the provisions relating to the conditions . . . for implementing the transitional stage . . ." On 23 November 1970, the contracting parties agreed to the provisions of the Additional Protocol which then became annexed to the Agreement of Association. It is article 36 of that Additional Protocol upon which attention is being focused in this case. It reads thus: "Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement." It is common ground that the twenty-second year after entry into force of the main Agreement ended on 30 November 1986. The principal case for the applicant is, as I have said, really quite simple. It amounts to this. Article 36 allowed 22 years in which to achieve by stages free movement of workers between member states of the EEC and Turkey. That transitional period is now over and so free movement should be a reality, of which this applicant is entitled to take advantage. In support of that submission, Mr Riza relies by analogy upon the 1974 decision of the European Court in Jean Reyners v Belgian State [1974] ECR 631. That case was concerned with article 52 of the Treaty of Rome which provides that after a transitional period, there shall be free movement of self-employed persons between member states. That article was held to be of such precision that it conferred on individuals rights which national courts must protect by prohibiting discrimination based on nationality. Mr Reyners was a Dutch lawyer who wished to practise in Belgium and found that he could not do so under Belgian law because he was not a Belgian national. At page 651 of the judgment, there appear these words: "In laying down that freedom of establishment shall be attained at the end of the transitional period, Article 52 thus imposes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not made dependent on, the implementation of a programme of progresive measures." In his reply this morning, Mr Riza emphasised the value of that case in showing that the existence of what are descrived in the case as "progressive measures" does not of itself mean that there cannot be a situation in which, at the end of a prescribed period, a result has to be attained. He also invited me to have regard to the fact that in that case, it was said by the Advocate General that no one could really doubt the effect of article 48 of the Treaty of Rome. So, submits Mr Riza, Reyners is of considerable assistance to me because it shows that the qualifications which are relied upon in the present case should not be a bar to the result which he seeks to achieve. For the respondents, Mr Plender submits that article 36 does not produce direct effects, in the sense of giving rise to an obligation on the part of the state upon which the applicant as an individual can rely. For that to happen, Mr Plender submits, and this is really common ground, three conditions must be satisfied, namely, first of all, the obligation must be clear and precise. Secondly, it must be unconditional. Thirdly, it must not be subject to any necessity to adopt subsequent rules. Those conditions were rehearsed by the Advocate General in Van Duyn v Home Office, and they were fulfilled in the Reyners case, but here, submits Mr Plender, there is no comparable precision. Article 4 of the 1963 Agreement, for example, sets out what is to happen during the transitional stage. That stage is to last not more than 12 years, "subject to such exceptions as may be made by mutual agreement", the exceptions being not such as to impede the final establishment of the customs union within "a reasonable period". Article 7 too is imprecise and article 12, which I have quoted earlier, says only that the contracting parties "agree to be guided by articles 48, 49 and 50 of the Treaty". Those are not, submits Mr Plender, the sort of words which create precise obligations. Article 22 also, he says, uses words which are less than precise, and article 25, to which I have already referred, shows by its wording that this agreement gives rise to obligations which exist horizontally between states and not vertically between states and individuals. As to that, Mr Riza submitted to me in reply that the existence of the Council of Association to resolve disputes between states does not assist one way or another as to whether or not the agreement gives rights to individuals. He derives some support for that proposition from the submissions made by the Advocate General in the Demirel case. Coming to the Additional Protocol, Mr Plender submits that here again, the essential precision is lacking, and there is no evidence of verticality. Article 36 does not stand alone, and cannot stand alone, because it expressly refers to article 12 of the 1963 Agreement, the imprecision of which has already been noted. The way in which the obligations are formulated is such that it is possible to envisage many questions being referred to the Council of the Association. Overall, what the Agreement shows is the direction in which it is hoped to progress, not a precise destination, unequivocally to be reached by a certain time. These submissions are made by Mr Plender as a matter of general principle, but they are, he says, reinforced by the decision of the European Court in Demirel v Stadt Schwabish Gmund [1989] 1 CMLR 421, which is directly in point. In that case, the Turkish applicant sought annulment of a deportation order, and relied upon article 12 of the Agreement and article 36 of the Additional Protocol. The applicant failed because the Court held that those articles were not so formulated as to produce a direct effect. At page 440 of the report, the court can be seen to have ruled that articles 12 and 36 "do not constitute rules of Community law which are directly applicable in the internal legal order of the member states". The use of the present tense, submits Mr Plender, makes it abundantly clear that nothing will be different after 30 November 1986 when the period provided for by the Agreement comes to an end although, as he conceded and as is obvious, it was not necessary in the Demirel case for the court to decide when the position would be after that date. In his opinion, the Advocate General said, at page 432: "Since article 12 in itself cannot create a right having a precise content, it is not possible even after the expiry date set for the transitional stage -- 30 November 1986 -- to contend that, in the absence of the requisite decision by the Council of Association, any binding effect relating to the free movement of workers may be inferred from the Agreement. The passage of time -- to quote the expression used by the Commission -- has no legal implications here." Mr Riza submits that that was an over-brief summary of the position adopted by the Commission and, to that end, he has put before me the arguments which were advanced and part of those arguments run thus: "The Council of the Association is to decide on the measures necessary for the progressive achievement of freedom of movement, according to a procedure of a political nature based on unanimity. The end of the transitional stage cannot be regarded as a date on which freedom of movement is automatically achieved and rights are conferred on individuals. Nonetheless, since the freedom of movement to be secured must be analogous to that provided for in article 48 and following articles, there may perhaps exist an essential core of rights which, however, is very difficult to identify." Mr Riza naturally emphasises the last sentence, but the preceding sentence is one which, as he concedes, is hardly of assistance to him. The opinion given by the Advocate General in the Demirel case as to the effect of the passing of 30 November 1986 seems to have been one which was accepted by the court. In his reply this morning, Mr Riza emphasised that in the Demirel case, no submissions were made on behalf of the applicant, Mrs Demirel. He also emphasised, as I have already indicated, that the court did not there have to decide what the position would be after 30 November 1986. He submitted to me, as he submitted in his original argument, that the words of article 36 can be read, as it were, free-standing, and when read together with article 48 of the Treaty of Rome, they create a precise obligation, a target which had to be achieved, by 30 November 1986. It is submitted that thereafter, there should be no need for further measures, the transitional period having come to an end, and that it was not contemplated that anything should happen after that date in order to bring freedom of movement into effect. In my judgment, both in principle and assisted by the authority of the Demirel case, which I accept is not binding because it related to a slightly different point, the submissions made by Mr Plender are correct and so Mr Riza's primary case fails. There is, as I find, no issue here requiring further consideration by the European Court. The plain fact is that arising out of the 1963 Agreement, there is no obligation upon which this applicant, as an individual, can rely. Accordingly, the application to me in this court fails and is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Turkan & Co; Treasury Solicitor

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