In responding to certain questions referred to it by the High Court, London, the Court of Justice provided clarification on the interpretation of Council Directive of 25 February 1974 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, and, in particular, on the remedies available to nationals of a Member State of the Community against a decision taken by the authorities of another Member State refusing permission to enter its territory, refusing to issue or renew a residence permit or a decision to expel them from its territory.
Mr Shingara, a French national, attempted to visit the United Kingdom in March 1991 but was refused entry on the basis of a decision by the Secretary of State that it would be contrary to the interests of public policy and public security to allow Mr Shingara to enter the United Kingdom.
In July 1993 Mr Shingara arrived at the port of Dover and was admitted to the United Kingdom after showing his French identity card. He was later arrested and detained as an illegal immigrant but was granted to leave to apply for judicial review of his detention and released whereupon he returned to France.
Mr Radiom, who has both Iranian and Irish nationality, resides in Ireland. Having worked in the United Kingdom for the Iranian Consular Service since 1983, he was informed by the Home Office that following the severance of diplomatic relations between the United Kingdom and the Islamic Republic of Iran he would be detained and deported if he did not leave the United Kingdom within seven days. He complied with that decision.
In October 1992 Mr Radiom applied to the Home Office for a new residence permit. In refusing that request the Minister stated that, although he was a Community national, he had no right to an administrative remedy. However he was granted leave to lodge an application for judicial review.
The directive lays down the conditions under which the Member States may refuse access to their territory to nationals of other Member States on grounds of public policy, public security or public health pursuant to Articles 48 and 56 of the EEC Treaty. It also provides that a person subject to such a decision must be able to challenge it by means of the same legal remedies as are available to nationals of the State concerned in respect of acts of the administration (article 8).
In the United Kingdom, Section 13 of the 1971 Immigration Act provides for an administrative appeal to an adjudicator against a refusal of access to United Kingdom territory. However such an administrative remedy is not available if the Secretary of State has personally given instructions that the person concerned is not to be given entry to the United Kingdom on the ground that his exclusion is conducive to the public good.
Those administrative remedies must be distinguished, in the United Kingdom, from applications for judicial review whereby the legality of decisions of public authorities is subject to review by the ordinary courts.
United Kingdom legislation provides, on the one hand, remedies in respect of acts of the administration generally and another kind of remedy in respect of decisions concerning entry of nationals of the Member State concerned. The Court stated that the reservations contained in Articles 48 and 56 of the EEC Treaty enable Member States to adopt, with respect to the nationals of other Member States, in particular on grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or to deny them access thereto.
It follows that the remedies available to nationals of other Member States in the circumstances defined by the Directive cannot be assessed by reference to the remedies available to nationals concerning the right of entry given that the two situations are in no way comparable. Consequently the availability of a remedy such as judicial review against administrative acts generally satisfies the obligation imposed on Member States by Article 8 of the Directive.
In addition, the Court reiterated that decisions prohibiting the entry into a Member State of a national of another Member State could not be of unlimited duration. A Community national against whom such a prohibition had been issued must therefore be entitled to have his situation re-examined if he considers that the circumstances which justified prohibiting him from entering the country no longer exist.
When a fresh application has been made for entry or a residence permit, after a reasonable time has elapsed since the preceding decision, the person concerned is entitled to a new decision, which may be subject to an appeal in accordance with the Directive.
This press release is an unofficial document solely for the use of the press. For further information, or for a copy of the judgment, please contact Tom Kennedy, telephone (00352) 4303-3355 or Gillian Byrne, telephone (00352) 4303-3366 or send a fax to (00352) 4303-2500.