R v The Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | Lightman J |
| Judgment Date | 11 December 1998 |
| Judgment citation (vLex) | [1998] EWHC J1211-13 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 December 1998 |
| Docket Number | CO/985/98 |
[1998] EWHC J1211-13
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
The Strand
London WC2
Mr Justice Lightman
CO/985/98
MR P DUFFY QC, MR R DE MELLO and MR B HALLIGAN (Instructed by Maurice Andrews Solicitors, Birmingham B4 6SE) appeared on behalf of the Applicant
MISS E SHARPSTON and MR R TAM (Instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
Friday, 11th December 1998
INTRODUCTION
This application for judicial review is a test case raising questions of great importance regarding the criteria for determining who is a citizen of the Union and the rights (if any) conferred on citizens of the Union by Articles 8 and 8a of the European Community Treaty ("the EC Treaty") as introduced by the Treaty on the European Union ("TEU"). Article 8 provides that every person holding the nationality of a Member State shall be a citizen of the Union and Article 8a provides that every citizen of the Union shall have the right to reside freely within the territory of Member States. The applicant Mrs Manjit Kaur ("the Applicant") is a British Overseas Citizen ("BOC"). It is common ground that under United Kingdom ("UK") domestic law the Applicant has no right to enter or remain in the UK. But the Applicant claims that as a BOC under European law she is a national of the UK and accordingly a citizen of the Union; and in turn that as a citizen of the Union she is entitled to enter and remain in this country and to travel from this country to other Member States. This claim is challenged by the respondent Secretary of State for the Home Department ("the Respondent"). The issue of nationality turns upon the legal effect under European law of certain declarations, and most particularly a declaration made in 1972 ("the 1972 Declaration"), as to nationality made by the UK Government. Declarations by the Governments of Member States are a regular feature of the treaty making process within the Union, and any decision as to the legal effect of such declarations must have the most far-reaching legal effect. The Applicant submits that the legal effect of such declarations is uncertain and that I should accordingly refer this question (and with it the other issues of European law raised in this case) to the European Court of Justice ("ECJ"). The Respondent submits that the status of the critical 1972 Declaration is so clear that no reference is required, but concedes that, if this is not so and a reference as to the status of that declaration is required, the other issues should likewise be referred. The Respondent rightly describes the Applicant's claim as bold and far-reaching, but that does not mean that it is necessarily wrong, still less so clearly wrong that no reference should be made.
It is convenient at this point to set out the established criterion for referring a question to the ECJ. The correct approach is authoritatively stated by Sir Thomas Bingham MR in R v. Stock Exchange ex parte Else Ltd [1993] QB 534 at 545E to F as follows:
"I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer."
Counsel have agreed my summary in R v. Secretary of State for Defence ex parte Perkins [1997] IRLR 297 at 300:
"The national court should only refuse a reference if the answer to the question of construction is so obvious as to leave no scope for reasonable doubt and should hesitate long before holding that there can be no reasonable doubt about the correct answer: see BLP Group v. CEC [1994] STC 41 at 48 (CA) and Conoco v. CEC [1995] STC 1022 at 1033."
FACTS
The Applicant was born in Kenya on the 3 rd June 1949. At birth she became a Citizen of the United Kingdom and Colonies ("CUKC"). On the 1 st January 1973 the Immigration Act 1971 ("the 1971 Act") came into force. The Applicant did not thereby or thereupon become a patrial and accordingly did not acquire a right of abode in the UK. On the 1 st January 1983 the British Nationality Act 1981 ("the 1981 Act") came into force and the Applicant became a BOC. In 1987 the Applicant applied for Entry Clearance to come to England first for settlement and (when this was refused) for a visit. On the 18 th February 1987 this also was refused. An appeal to the Adjudicator against this dismissal was dismissed on the 14 th November 1988 and on the 26 th April 1989 the Immigration Appeal Tribunal refused leave to appeal. On the 26 th May 1990 she entered the UK: the circumstances in which she did so are not clear. On the 12 th June 1992 she applied for Indefinite Leave to Remain ("ILR"). On the 7 th December 1992, ILR was refused and the Applicant was informed that she was an illegal entrant. On the 19 th May 1993 she was granted Exceptional Leave to Remain ("ELR") until the 11 th May 1994 on the grounds of the ill-health of her mother, who was a UK resident. On the 17 th January 1994 she travelled to India, and on the 8 th April 1994 she returned to the UK. On the 3 rd May 1994 she applied for further ELR which was granted on the 12 th October 1994 until the 11 th May 1995. On the 23 rd December 1994 she obtained a multiple visit visa for India valid for 6 months. On the 7 th January 1995 she travelled to India, and on the 31 st March 1995 she returned to the UK. On the 3 rd May 1995 she applied for ILR or alternatively ELR. On the 3 rd August 1995 the Respondent refused both requests. On the 15 th August 1995 the Applicant appealed against this refusal, but at the hearing on the 14 th June 1996 this appeal was abandoned. The Applicant instead made representations seeking a recommendation that she should be allowed to remain. On the 5 th August 1996 the Adjudicator dismissed the appeal and refused to make the recommendation requested. Thereafter the Applicant made representations to the Respondent stating that she was a national of the EU. In letters dated the 15 th October 1996, the 9 th January 1997 and the 22 nd January 1997 the Respondent wrote in reply stating that the Applicant was not a national of the EU; that she was not stateless as she was a CUKC; that accordingly she had no claim to remain in the UK and that she should therefore make arrangements to leave without delay. On the 19 th June 1997 Tucker J. granted leave to apply for judicial review of the Respondent's decision that she was not entitled to remain in the UK. The substantive application is now before me. The evidence before me establishes that the Applicant wishes to remain and obtain gainful employment in this country and periodically to travel to other EC Member States, especially Ireland and France, and when in such countries to make purchases of goods and services. If it is held that she is not entitled to remain and work in this country unless she has first acquired the right to do so by having been engaged in work for a sufficiently substantial period in another Member State, then she would want to go to another Member State (probably Ireland) in order to seek work and do this, and probably later return to this country. She is however genuinely and reasonably concerned at being returned by the authorities of any other Member State if she travelled there before her entitlement to citizenship of the Union and to go there under EC law is established. It is common ground that the Respondent's decision to refuse the Applicant leave to remain was made on the ground that the Applicant was not a citizen of the Union, and that accordingly the decision is vitiated by error and must be quashed if it is held that the Applicant was a citizen of the Union. The decision has to be quashed whether or not the Applicant as a citizen of the Union has a right to remain here. The question whether as such a citizen of the Union the Applicant is entitled as of right to remain here or should as a matter of discretion be permitted to remain would then have to be remitted to the Respondent for reconsideration. The parties are however agreed that, if the issue of citizenship of the Union is to be referred to the ECJ, in order that her status and entitlements should be finally determined as soon as possible for the sake, not merely of the parties to these proceedings, but the many other BOCs, I should at the same time refer these other important questions to the ECJ.
LEGISLATION
The issues raised are as to what criterion is to be applied in determining who is a citizen of the Union and what rights are conferred such citizenship. The critical provisions are Articles 8 and 8a of the EC Treaty and Sections 2 and 3 of the European Communities Act 1972 ("the 1972 Act"). Articles 8 and 8a read as follows:
"8.1.Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union.
2.Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be...
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