• Text size  | | |
• Email this document
• Printable version

R v. Secretary of State for the Home Department, Ex parte Kulwinder Kaur Phull and Ors

KULWINDER KAUR PHULL HARPAL SINGH PHULL HARAMJEET SINGH PHULL
(Applicants)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

Court of Appeal: Leggatt, Waite, Schiemann LJJ

Deportation-Indian national-wife of British citizen-whether articles 8 and 8a of the Treaty of Rome gave husband a right to have his wife reside in the United Kingdom-whether those articles departed from the principle that EC law had no application to situations wholly internal to one Member State-whether Treaty gave a right to family reunion-whether if it did, rights flowing from the articles had direct effect-whether European Convention on Human Rights relevant. Treaty of Rome (as amended) arts. 3b, 6, 8, 8a, 48, 52, 59, 177: Council Directive 93/96 EEC: Regulation 1612/68 art. 10: European Convention on Human Rights art. 8.

Judicial review of Secretary of State’s refusal to revoke a deportation order against the first applicant. She was an Indian national who had been admitted to the United Kingdom for marriage. The marriage subsequently broke down. She then married a British citizen, the second applicant. She was refused variation of leave on the basis of that second marriage. She became an overstayer.

It was argued before the court that under articles 8 and 8a of the Treaty of Rome (as amended) the first applicant’s husband had a right to have his spouse reside with him in the United Kingdom. Unlike the generality of provisions in EC law, those articles applied to situations wholly internal to one Member State and moreover had direct effect.

Held

1. A spouse who like the first applicant was a national of a non-Member State had no right of her own to reside in a Member State.

2. Article 8a gave the second applicant, the husband, no right of family reunion: the language of the article suggested that the principle of excluding situations wholly internal to one Member State was preserved.

3. In any event if there were a right of family reunion implicit in article 8a, it was not sufficiently precise to have direct effect without further legislation.

4. The decision to deport the first applicant was not discriminatory on the grounds of nationality, contrary to the provisions of article 6 of the Treaty,

5. EC law did not apply to the case and consequently no use could be made of the European Convention on Human Rights as an adjunct to Community law.

I Macdonald QC and V Kothari for the applicants

R Plender QC and Miss D Rose for the respondent

Cases referred to in the judgment:

R v Saunders [1980] QB 72: [1979] 3 WLR 359.

Adulaziz (ECHR) (of 28 May 1985) A Series, No 95.

Meryem Demirel v Stadt Schwabisch Gmünd [1987] ECR 1-3719.

Re Students’ Rights: European Parliament v EC Council [1992] 3 CMLR 281.

Cristos Konstantinidis v Stadt Altensteig and anr (1993) The Times 2 April.

R v Immigration Appeal Tribunal ex parte Kulwinder Kaur Phull and ors (unreported, QBD, 2 November 1994).

R v Secretary of State for the Home Department ex parte Adams [1995] 2 All ER 177.

LEGGATT LJ:

This is the judgment of the court.

Introduction

The first applicant, now called Kulwinder Kaur Phull, is an Indian citizen. For the past six years she has been trying to immigrate into the United Kingdom. She first arrived here on 14 May 1989 for the purpose of marrying a man called Surinder Singh. He is not the man who has given his name to a leading case on the subject. But their marriage foundered, and a divorce ensued. A deportation order was signed against her on 15 May 1991. On 21 April 1993 she married the second applicant, Harpal Singh Phull. He is a British citizen. Mrs Phull’s application for leave to remain as the spouse of a British citizen was refused by the Secretary of State on 28 October 1993. The third applicant, Hararnjeet Singh Phull, was born to them on 15 March 1994. He too is a British citizen. Invited to reconsider his decision, the Secretary of State on 4 August 1994 declined to reverse it. Following a further application to revoke his decision, he reiterated it by letter of 7 September 1994. Laws J refused the applicants leave to move; but by leave of the full court on amended grounds they now move this court for judicial review of the refusal to revoke the deportation order.

The application is made primarily under article 8a of the EC Treaty, but also by reference to article 6 of the EC Treaty and article 8 of the European Convention on Human Rights (“the Convention”). The applicants seek a reference to the European Court of Justice under article 177.

The scope of article 8a

Article 8 provides as follows:

“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 subject to the duties imposed thereby.”

Article 8a provides (so far as material) that

“1Every citizen of the Union shall have the right to move and reside freely within the territory of Member States, subject to the limitations and conditions laid down in this Treaty and by measures adopted to give it effect.”

On behalf of the applicants the key submission of Mr. Macdonald QC is that since the coming into force of articles 8 and 8a the enjoyment of relevant Community rights depends on citizenship of the European Union and not upon the bringing into play of the free movement rights conferred by articles 48, 52 and 59 and the implementing Regulations and Directives.

Article 8a refers expressly to limitations and conditions laid down in the Treaty and by the measures adopted to give it effect. This directs attention in particular to article 48 relating to freedom of movement of workers, to article 52 relating to freedom of establishment, and to article 59 relating to the supply of services. None of these articles or of those associated with them applies directly to the right of residence for workers’ spouses who are nationals of non-Member States. That provision is made by Regulation 1612/68, article 10 of which states that-

“The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State-(a) his spouse ...”

Citizenship of the European Union confers rights including the rights to move and reside within the territory of the Member States. That right to move is expressed in the same language as article 48(3)(b), under which workers are accorded a right to move freely within the territory of Member States. In Case 12/86, Demirel’s case [1987] ECR 1-3719 Mr. Advocate General Darmon had to consider whether the Turkish wife of Turkish man could rely on Community law in order to assert a right of residence in Germany such as her husband enjoyed under the so-called Ankara Agreement. The Advocate General said at page 3745-

“It must be observed that what is at issue here is not freedom of movement for workers as such but the reunification of families which is designed to facilitate it. As was pointed out during the proceedings, the right to reunification on the part of the families of workers who are nationals of a Member State of the Community had to be the subject of an express provision, namely Article 10 of Council Regulation No. 1612/68 of 15 October 1968 on freedom of movement for workers within the Community. In the absence of any analogous provision either contained in the Ankara Agreement or adopted for its implementation by the Council of Association, such a right cannot be deemed to arise by implication. Even with regard to the requirements of Article 8 of the European Convention on Human Rights, it was pointed out during the proceedings that in the Abdulaziz case the European Court in Strasbourg held that, generally speaking, States are not thereby required to allow a spouse who is not a national to settle in their territory. Although family reunification is certainly a necessary element in giving effect to the freedom of movement of workers, it does not become a right until the freedom which it presupposes has taken effect and a special provision on the matter has been adopted.”

To the like effect is Case C-295/90 the Students’ Rights case [1992] 3 CMLR 281 in which the European Court of Justice accepted that it was open to the Council to facilitate the rights of workers by extending them to their families. In default of legislation the spouses themselves enjoyed no right of residence, direct or derivative.

The result is that a spouse like the first applicant who is a national of a non-Member State has no right of her own to reside in a Member State. What is claimed here is that the second applicant as a national of a Member State has a right to have his spouse reside here with him-sometimes referred to as a right of family reunion. The claim of the third applicant to have his mother reside with him while he is a minor adds nothing for present purposes to his father’s claim.

Purely internal situations

The cardinal feature of Mr. Macdonald’s argument is that article 8a has introduced a departure from the principle that the right to move freely and to reside within Member States is inapplicable in wholly internal situations. He submits that the article has the effect of adding to the second applicant’s undoubted rights under English law to reside in England, a further right under Community law to reside in the United Kingdom, which includes a right of family reunion, and which is enforceable in our courts. But the language of the article is against him. On a natural reading it refers to a right in a European citizen to move from his own Member State to another Member State and to reside there. It is not on its face concerned with the rights that a citizen of one Member State has within that State. The use of the words “within the territory of the Member States” does not suggest the contrary. They are almost identical with the words of article 48(3)(b) which have been held not to apply to purely internal situations. The right is expressed to be “subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect”. This suggests that the principle of excluding wholly internal situations is preserved.

Before the creation of the European Community, citizens seeking to assert rights against their own Member State had to rely on the law of that State. Since the Treaty the circumstances in which a citizen of a Member State has acquired rights against that state within the territory of that state have been specified in the Treaties and in the Directives and Regulations made under them. Those provisions have proceeded on the basis that there were no such rights, unless they were specified. In Case 175/78 R v Saunders [1980] QB 72 the European Court held that a restriction on movement imposed in a binding over order on a United Kingdom national was a wholly domestic matter which was outside the scope of the rules relating to freedom Of movement contained in the EEC Treaty. At page 86 the court said:

“10.Although the rights conferred upon workers by Article 48 may lead the Member States to amend their legislation, where necessary, even with respect of their own nationals, this provision does not however aim to restrict the power of the Member States to lay down restrictions, within their own territory, on the freedom of movement of all persons subject to their jurisdiction in implementation of domestic criminal law.

11. The provisions of the EEC Treaty on freedom of movement for workers cannot therefore be applied to situations which are wholly internal to a Member State, in other words, there is no factor connecting them to any of the situations envisaged by Community law.”

As Mr. Plender QC has submitted on behalf of the Secretary of State, the principle whereby the Treaty does not apply in “purely internal” situations is reflected in the legislation made thereunder. For purposes of Community law Council Directives have consistently treated the right of residence as relating to the right of citizens of the European Union to reside in Member States other than their own. That includes Council Directive 93/96/EEC, which was passed with the intention that it should be implemented immediately after the Treaty of European Union had come into force. According to the researches of counsel, academic writers are virtually unanimous in the view that the new right created by article 8a does not significantly extend the rights of free movement and residence already enjoyed by nationals of Member States under the EC Treaty and Council Directives.

Although it is possible that the only purpose of article 8a(1) is declaratory, it does provide a means of enlarging the rights that existed before it came into force. Before that there was no general right in citizens of Member States to move to other Member States and reside there. Instead there were various specific rights given to specific groups of citizens. So we reject the argument that the article would have no function unless Mr. Macdonald’s argument was correct.

It is a necessary consequence of Mr. Macdonald’s argument that just as a citizen of a Member State can under national law reside anywhere in that State, so since the creation of citizenship of the European Union such a citizen can reside anywhere in the Union, with the result that it is no longer relevant of which Member State he is also a citizen. It is true that that would avoid giving to visitors to one Member State from another Member State larger rights than those possessed in their own state by the citizens of that state. But Mr. Macdonald has not been able to suggest any benefit in creating for a citizen of a Member State a European right of residence in his state parallel to the right given to that citizen by that state, save in so far as it would afford what some would presumably regard as a beneficial opportunity to overrule such national immigration laws as might militate against the right of family reunion.

The insertion into the EC Treaty of article 3b suggests an unwillingness on part of Member States to enlarge generally the matters covered by the Treaty. We take the view that, had this result been intended by the signatories, the wording of the Treaty would have declared that intention explicitly. But it does not. On the contrary, the concluding words of article 8a reinforce our view. Since in our judgment the second applicant is not accorded by article 8a the necessary right of residence in his own Member State, the appeal must fail.

Direct effect

Mr. Macdonald submits that a right of residence in a particular Member State carries with it a right to family reunion in that State. There is no doubt that in many instances where Community law confers upon a citizen a right of residence there is also conferred upon him a right for some members of his family to reside with him. That formulation, however, overlooks the fact that, in all the cases cited to us the right of a citizen to have his family residing with him is given not by an article of a Treaty expressed in general terms but by specific subordinate legislation such as Community Regulations or national legislation following a Directive. Thus, for instance, article 10 of Regulation 1612/68, to which we have already referred, provides that a spouse and other specified persons have, irrespective of nationality, the right to install themselves with a worker who is exercising his freedom of movement. It should be added that the whole of the argument in the Students’ Rights case (supra) would have been unnecessary if it had been possible to rely on rights created directly by the Treaty.

Before the Treaty of European Union various groups of citizens were given under Community law a right in certain circumstances to move to and reside in another Member State. Citizens with such a right to reside in a Member State other than their own had the right to have their family with them, but this right invariably stemmed from subordinate legislation, not from the Treaty. That legislation identified precisely who was covered and subject to what conditions. It would have been wholly unnecessary if the mere right to reside in another Member State carried with it the right of the national to have his family with him. In the present case, even assuming that a new right to reside has been created, corresponding subordinate legislation would still be needed to give effect to any right of a citizen to have his family with him. Article 8a(2) makes provision for this. But as yet no such subordinate legislation has been enacted, and even if any right to family reunion were implicit in the right to reside granted by article 8a, that right would not be directly enforceable.

Even if, contrary to our view, article 8a has the effect of creating a new right to reside in a person’s own state coupled with a right of family reunion, in our judgment, until the requisite subordinate legislation has been passed, it will not be sufficiently precise or unconditional to have direct effect. We have already remarked that, so far from abrogating the existing interpretation of the EC Treaty as applicable to the right of movement in external Member States, the Treaty of European Union introduced a similar expression in article 8a to that used in article 48, namely “the right to move freely within the territory of Member States”. The right was also stated to be subject to the limitations and conditions laid down both “in this Treaty”, and also “by measures adopted to give it effect”. Since no such measures have been passed, without them article 8a cannot have direct effect. As Stephen Hall has said in his recent work on Nationality Migration Rights and Citizenship of the Union1[1]1-

“…Article 8a does not of its own force extend migration rights to the families of Union citizens where such family members are not themselves Union citizens. Although the ability of a Community migrant to be accompanied by his family is an essential element of his freedom of movement, no such right exists until a special provision on the matter has been adopted.

Article 6

Article 6 of the EC Treaty provides that-

“Within the scope of application of this Treaty, and without prejudice to any special provision contained therein, any discrimination on grounds of nationality shall be prohibited.”

The essence of Mr. Macdonald’s argument is that the deportation of the first applicant is a breach of article 6 because it involves treating the second applicant less favourably than, his French or German counterparts. In our judgment article 6 is by its own language placed beyond the reach of the applicants. It operates only “within the scope of the application of this Treaty”. We have already explained why we regard the applicants’ claims as being outwith the Treaty. In any event it relates to discrimination and to nationality. As Mr. Plender has submitted, Mr. Phull and his son, who are not exercising rights of residence or of freedom of movement under the Treaty, cannot be compared with citizens of other Member States who are. And the discrimination is between those who are not in a position to invoke Community law and those who are.

Article 177

Nothing about the applicants’ circumstances brings them within the relevant provisions of the EC Treaty, since so far as the Community is concerned the issues are wholly domestic, and the provisions do not have direct effect. It is true that in R v Secretary of State for the Home Department ex parte Adams [1995] All ER (EC) 177 under (what is now) article 8a of the Treaty the Divisional Court referred questions about the right of a citizen of Northern Ireland to move elsewhere in the United Kingdom without impediment. But in this case after full argument we have come to the confident conclusion both that article 8a is not intended to operate domestically, and also that in default of further measures it is not capable of having direct effect. On the grounds of Community law relied on by the applicants we therefore do not entertain any such doubt as would warrant a reference to the European Court of Justice under article 177 of the EC Treaty.

The Convention

Since this is not a context within which Community law operates, the use that might be made of the Convention as an adjunct of Community law is not available. For example, Mr. Advocate General Jacobs in Case C-260/91 Konstantinidis’ case considered the Convention relevant where it was invoked by “a person who exercises his right of free movement under articles 48, 52 or 59”. Here, however, it is being invoked by persons who have no Community rights to exercise. As Mr. Plender submitted, “The Advocate General’s approach must be correct, otherwise the Convention would be incorporated within the domestic legal orders of all Member States, via the conduit of Community law, and would apply within those States even to situations not governed by Community law”.

Mr. Macdonald accepted that unless he succeeded under Community law he could not succeed under article 8 of the Convention. Mr. Kothari’s argument, which failed before Laws J, that under English domestic law the Secretary of State’s decision was irrational, was not repeated in this Court.

The applications are dismissed.

DISPOSITION

Applications dismissed

Leave to appeal to the House of Lords refused

Solicitors:

Singh & Ruparell, London, W5; Treasury Solicitor

NOTE

On 22 November 1995 the petition to the House of Lords to appeal against the decision of the Court of Appeal was dismissed by the Appeal Committee.

---

[1] Stephen Hall, Nationality, migration rights and citizenship of the Union, The Netherlands, 1995,