R v. Immigration Appeal Tribunal, Ex parte Gustaff Desiderius Antonissen

R v IMMIGRATION APPEAL TRIBUNAL ex parte GUSTAAF DESIDERIUS ANTONISSEN

Queen's Bench Division

[1992] Imm AR 196

Hearing Date: 26 November 1991

26 November 1991

Index Terms:

EC national -- Deportation -- convicted of serious criminal offence -- Secretary of State initiated deportation proceedings -- applicant had sought work in United Kingdom -- had never obtained work -- extent of entitlement to protection from deportation under EC Directives. EEC Treaty art 48: Directive 64/221 arts 2, 3: Directive 68/360: HC 169 paras 3(5)(b), 140, 143.

Interpretation -- EC Directives -- whether court permitted to consider minutes of relevant meeting of Council of Ministers in construing a Council Directive.

Immigration rules -- EC worker -- whether the provisions of the rules were contrary to the provisions of Community law. HC 169 paras 140, 143.

Held:

The applicant was a Belgian national who had entered the United Kingdom in 1984. He sought, but did not find work. He was convicted of drug offences and the Secretary of State decided to initiate deportation proceedings against him pursuant to s 3(5)(b) of the 1971 Act. An appeal was dismissed by the Tribunal. The Tribunal had rejected his claim that he should be regarded as an EC worker, enjoying a protection against deportation. On application for judicial review questions were referred by the court to the European Court. Following the determination of those questions, the court considered the application on its merits. Held 1. The European Court had determined that the time limit in the immigration rules imposed on those seeking work was not contrary to the relevant Directives unless the applicant provided evidence that he was continuing to seek work and had a genuine chance of securing it. 2. The European Court had also determined that in interpreting a Directive it was not permissible to have reference to the related meetings of the EC Council. 3. On the basis of the applicant's history the court concluded that while he had continued to seek work he had no genuine chance of securing it. 4. He could not therefore, at the relevant date, claim the protection of the Directives on the free movement of workers. 5. In its discretion, the court would dismiss the application.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Antonissen [1989] 2 CMLR 957. R v Immigration Appeal Tribunal ex parte Antonissen (EC: Case C-292/89), The Times 27 February 1991.

Counsel:

R Plender QC and D Bethehem for the applicant; I Ashford-Thom for the respondent PANEL: Popplewell J

Judgment One:

POPPLEWELL J: On 3 June 1988 the Immigration Appeal Tribunal dismissed an appeal by the applicant against a decision to make a deportation order. The applicant seeks an order to quash the determination and also a rehearing now before that Tribunal. The facts giving rise to that application are not substantially in dispute. The applicant is a Belgian national who was born on 10 September 1958. He met an English woman and in October 1984 he came to this country. He sought work in this country but was unable to find it. In March 1987 he was sentenced to a term of two years' imprisonment concurrent with a term of six months' imprisonment on charges of possessing a controlled drug and having a controlled drug in his possession with intent to supply. On 27 November 1987 a deportation order was made by the Secretary of State on the ground that the applicant's deportation was conducive to the public good. The applicant appealed against that order and a hearing took place before the Tribunal. They came to determination on 3 June 1988. It was the applicant's contention before the Tribunal that he enjoyed the status of a worker and was thus protected by Community law from deportation, save in accordance with the stringent requirements of articles 2 and 3 of Council Directive 64/221. The argument before the Tribunal related to the question of whether in fact the applicant was a worker. The provisions of national law are contained in paragraph 140 of House of Commons Statement 169. That reads: "A person admitted [in accordance with Part VI] may normally remain in the United Kingdom for six months before applying for a 'Residence Permit for a National of a Member State of the EC'. Such a residence permit will be issued if the person: (a) has entered employment . . .". Paragraph 143 provides: "A person may be required to leave the United Kingdom, subject to appeal, if . . . after 6 months from admission, he fails to meet the requirements ofparagraph 140 . . ." The submission before the Tribunal was that this applicant was entitled to protection from deportation and various authorities were referred to. It was submitted he could properly be regarded as a worker because his lack of employment had been involuntary. However the Tribunal made this finding: "In this case the appellant has never been in employment in this country and paragraph 143 of HC 169 in effect provides that if an EEC national has failed to obtain employment after six months from admission he may be required to leave. In the circumstances of this case therefore we do not consider the appellant can properly avail himself of the worker provisions of the EEC legislation." The matter came before Nolan J on an application for judicial review to quash that determination. His judgment is reported in ex parte Antonissen [1989] 2 CMLR 957. Nolan J in the course of his judgment, having referred to the provisions of the Immigration Act and paragraphs of the House of Commons statement, said this: "In the course of arriving at their decision, the Tribunal considered and rejected an argument put forward on the applicant's behalf to the effect that he, being a citizen of the European Economic Community, enjoyed the status of a worker and was thus protected by Community law from deportation . . ." Since the Tribunal did not accept the applicant was a worker it did not address its mind to those requirements, the Secretary of State having taken the view that the applicant ought to be deported on the ground that it would be conducive to the public good. Nolan J went on: "It is common ground that if the applicant succeeds in this application in establishing that he is a worker, the case will have to be remitted to the Tribunal for consideration of them." Further, he said: "The Tribunal refused to accept that the applicant could invoke the 'worker' provisions of the Community legislation, because they found that he had not met the requirements of paragraphs 140(a) and 143 . . . They simply applied the six months' test." In the result Nolan J referred the matter to the European Court for them to answer two questions which had been agreed between the parties. One of them was an evidential point as to whether the minutes of the meeting of the council could be looked at in relation to the adoption by the council of Directive 68/360. The European Court ruled against that submission and I am not therefore concerned with it. But Nolan J referred this question to them: "1. For the purpose of determining whether a national of a Member State is to be treated as a 'worker' within the meaning of article 48 of the EEC Treaty when seeking employment in the territory of another Member State so as to be immune from deportation save in accordance with Council Directive 64/221 of 25 February 1964, may be legislature of the second Member State provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?" The European Court made this ruling: "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." Mr Plender on behalf of this applicant makes the submission that the Tribunal's decision is flawed because they based their judgment on their understanding of the national provision; namely, if he has not found employment after six months, he cannot be categorised as a worker and that was the basis of their decision. The European Court has now added a proviso. That proviso has never been considered by the Tribunal and therefore the Tribunal's decision being flawed it must go back to them for them to apply their mind to any evidence which the applicant may seek to put before it showing that he comes within the proviso. Mr Ashford-Thom, on behalf of the Secretary of State, says that the decision of the Tribunal, even if they applied what is now said to be incorrect law, can nevertheless be sustained because the evidence which was before them as to the prospect of his getting work was totally absent then, is totally absent now and therefore, even if they had properly applied what is now said to be the law under the European Court's direction, they would necessarily have come to the same conclusion. I turn therefore to look at such evidence as there was to show that this applicant was (a) continuing to seek employment, and (b) he has genuine chances of being engaged. I do not have to interpret for the purpose of this judgment precisely the boundaries of the word "genuine"; "good", "real", "more than illusory" are the words that have been canvassed in the course of argument. The evidence before me is contained in the affidavit of the applicant, which was sworn in September 1988, which reads as follows: "On arriving in England I tried to find employment. I have continued to look for employment seriously and repeatedly throughout the period of my arrival in October 1984 until the present. Save for the period between 30 March 1987 and 21 December 1987" -- that no doubt was a period when he was in prison -- "I was unable to find employment, save for a temporary job in Belgium for three weeks in January 1985. I believe my difficulty in obtaining work was due to the high rate of unemployment in the north-west of England compounded by my foreign origin, my lack of British reference and my lack of qualifications. There is now produced and shown to me, marked GDA1, a bundle of twelve documents being letters from employers to whom I applied and introduction cards from the Chester Job Centre, as evidence of my serious persistent and continuing search for employment." There is therefore material upon which it is possible to conclude that he was continuing to seek employment. But there is a total absence of any evidence that he had or has had, because that is the test, at the time of the deportation order a genuine chance of being engaged. Mr Plender has referred to some evidence, which is not before the court, of some letter which has been subsequently written, which he would want to elaborate on before the Tribunal as fresh evidence casting light on the applicant's position at the material time. But in my judgment the material presently before the court and the material which was before the Tribunal make it abundantly clear that there was no genuine chance within a reasonable period of time. There must be some limit in time; it cannot be a genuine chance that in 30 years' time, for instance, he might get a job. Within a reasonable period of time there is no evidence that he has a genuine chance of being engaged. Accordingly, it seems to me that the decision of the Tribunal (not for the reasons which it relied on) is in fact a correct decision. Accordingly, exercising a discretion which I have, I do not propose to grant the remedy sought, which is to quash the original decision and order a rehearing before that tribunal. Accordingly, this application is refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley-Burgess, London EC1; Treasury Solicitor