CJEC, May 22, 1980, No 131-79

THE COURT

1 By an order of 30 july 1979 received at the court on 10 august 1979 the high court of justice, queen ' s bench division, divisional court, referred several questions to the court under article 177 of the eec treaty concerning the interpretation of, in particular, article 9 (1) of council directive n°64-221-eec of 25 february 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (official journal, english special edition 1963-1964, p. 117) with a view to the exercise of its powers of judicial review following an application made by an italian national resident in the united kingdom as an employed person to set aside a deportation order made against him pursuant to a criminal conviction.

2 It emerges from the file and from the observations made in the course of the oral procedure that the united kingdom has not introduced any specific legislation to implement directive n°64-221. The law applied in this case, namely the law regulating immigration (the immigration act), dates back to 1971. It provides that any person described as ' ' non-patrial ' ' is subject in the united kingdom to controls which include liability to be deported in the circumstances set out below:

- under section 3 (5):

' ' (a) If, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or

(b) If the secretary of state deems his deportation to be conducive to the public good; or

(c) If another person to whose family he belongs is or has been ordered to be deported ' ';

- under section 3 (6):

If he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court... ' '.

The system of appeals differs according to whether the case is within section 3 (5) or section 3 (6).

- if section 3 (5) applies:

The decision by the secretary of state to make a deportation order is subject to an appeal to an adjudicator from whose decision there is a further appeal to the immigration appeal tribunal.

- if section 3 (6) applies:

The recommendation for deportation made by a court may be appealed against but no appeal may be brought after the making of a subsequent deportation order and there is no machinery for making representations before the decision to make the order is taken.

3 It may be seen from the order making the reference and the documents in the file that on 13 december 1973 the applicant was convicted before the central criminal court of buggery and rape committed on 18 december 1972 on a prostitute and of indecent assault and assault occasioning actual bodily harm on 14 april 1973 on another prostitute. On 21 january 1974 he was sentenced to a total of eight years ' imprisonment for these four offences. When giving judgment the central criminal court made a recommendation for deportation under the immigration act.

4 On 10 october 1974 the court of appeal (criminal division) refused the applicant leave to appeal against the prison sentence and the recommendation for deportation. On 28 september 1978 the secretary of state made a deportation order against him to take effect when his prison sentence was completed. Having completed his prison sentence on 3 april 1979 after remission of one third for good behaviour, the applicant was due to be released but remained in detention under the immigration act. On 10 april 1979 the applicant applied to the high court to set aside the deportation order on the ground that, having been made more than four years after the recommendation for deportation by the central criminal court, it infringed his individual rights for failure to comply with the provisions of article 9 (1) of directive n°64-221.

5 Article 48 of the treaty ensures freedom of movement for workers within the community. This comprises the right of nationals of member states, subject to restrictions justified on grounds of public policy, public security or public health, to move freely in the territory of member states and to stay in a member state to take up a post there in accordance with the laws, regulations and administrative provisions governing the employment of national workers.

6 According to the third recital in the preamble to directive n°64-221, one of the aims which it pursues is that ' ' in each member state, nationals of other member states should have adequate legal remedies available to them in respect of the decisions of the administration ' ' in the sphere of public policy, public security and public health.

7 Under article 8 of the same directive the person concerned must, in respect of any decision affecting him, have ' ' the same legal remedies... As are available to nationals of the state concerned in respect of acts of the administration ' '; in default of this, the person concerned must, under article 9, at least be able to exercise his rights of defence before a competent authority which must not be the same as that empowered to take the decision ordering expulsion.

8 Article 9 (1) of the directive provides as follows:

Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for.

This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion ' '.

9 It is settled in english law that the legal remedies available against a deportation order relate only to the legal validity of that order. It follows that the deportation order itself may be made only in accordance with the provisions of article 9 of the directive, which makes express provision for such a case.

10 These were the circumstances in which the high court of england and wales, queen ' s bench division, came to refer the following questions to the court of justice for a preliminary ruling:

' ' 1. Whether article 9 (1) of council directive n°64-221 of 25 february 1964 confers on individuals rights which are enforceable by them in the national courts of a member state and which the national courts must protect.

2.(a) What is the meaning of the phrase ' an opinion has been obtained from a competent authority of the host country ' within article 9 (1) of council directive n°64-221 of 25 february 1964 (' an opinion ') ?

; and

(b) In particular, can a recommendation for deportation made by a criminal court on passing sentence (' a recommendation ') constitute ' an opinion ' ?

3. If the answer to question 2 (b) is yes:

(a) Must ' a recommendation ' be fully reasoned?

(b) In what (if any) circumstances does the lapse of time between the making of ' a recommendation ' and the taking of the decision ordering the expulsion preclude ' a recommendation ' from constituting ' an opinion ' ?

(c) In particular does the lapse of time involved in serving a sentence of imprisonment have the effect that ' a recommendation ' ceases to be ' an opinion ' ?

11 Article 9 (1) of the directive is one of a number of provisions designed to ensure that the rights of nationals of a member state regarding the freedom of movement and residence in the territory of other member states are observed. Articles 3 and 4 of the directive restrict the grounds for deportation or for refusing a worker leave to enter a member state. Article 6 provides that the person concerned shall be informed of the grounds of public policy, public security or public health upon which the decision taken in his case is based, unless this is contrary to the interests of the security of the state involved. Article 7 provides inter alia that the person concerned shall be notified of any decision to refuse the issue or renewal of a residence permit to expel him from the territory. Article 8 gives the person concerned access to the same legal remedies as are available to nationals in respect of acts of the administration.

12 The provisions of article 9 are complementary to those of article 8. Their object is to ensure a minimum procedural safeguard for persons affected by one of the measures referred to in the three cases set out in paragraph (1) of that article. Where the right of appeal relates only to the legal validity of a decision, the purpose of the intervention of the ' ' competent authority ' ' referred to in article 9 (1) is to enable an exhaustive examination of all the facts and circumstances including the expediency of the proposed measure to be carried out before the decision is finally taken. Furthermore the person concerned must be able to exercise before that authority such rights of defence and of assistance or representation as the domestic law of that country provides for.

13 These provisions, taken together, are sufficiently well-defined and specific to enable them to be relied upon by any person concerned and capable, as such, of being applied by any court. This conclusion justifies a positive reply to the first question submitted by the national court.

14 The requirement contained in article 9 (1) that any decision ordering expulsion must be preceded by the opinion of a ' ' competent authority ' ' and that the person concerned must be able to enjoy such rights of defence and of assistance or representation as the domestic law of that country provides for, can only constitute a real safeguard if all the factors to be taken into consideration by the administration are put before the competent authority, if the opinion of the competent authority is sufficiently proximate in time to the decision ordering expulsion to ensure that there are no new factors to be taken into consideration, and if both the administration and the person concerned are in a position to take cognizance of the reasons which led the competent authority to give its opinion - save where grounds touching the security of the state referred to in article 6 of the directive make this undesirable.

15 As regards the question what is the significance of the phrase ' ' opinion... Obtained from a competent authority of the host country ' ' and whether a recommendation for deportation made by a criminal court at the time of conviction constitutes such an opinion, it should be noted that the directive does not define the expression ' ' a competent authority ' '. It refers to an authority which must be independent of the administration, but it gives member states a margin of discretion in regard to the nature of the authority.

16 It is common ground that the criminal courts in the united kingdom are independent of the administration, which is responsible for making the deportation order, and that the person concerned enjoys the right to be represented and to exercise his rights of defence before such courts.

17 A recommendation for deportation made by a criminal court at the time of conviction under british legislation may, therefore, constitute an opinion within the meaning of article 9 of the directive provided that the other conditions of article 9 are satisfied. As the court has already stressed in its judgment of 27 october 1977 (case 30-77, bouchereau, (1977) ecr 1999), a criminal court must take account in particular of the provisions of article 3 of the directive inasmuch as the mere existence of criminal convictions may not automatically constitute grounds for deportation measures.

18 As regards the time at which the opinion of the competent authority must be given, it must be observed that a lapse of time amounting to several years between the recommendation for deportation and the decision by the administration is liable to deprive the recommendation of its function as an opinion within the meaning of article 9. It is indeed essential that the social danger resulting from a foreigner ' s presence should be assessed at the very time when the decision ordering expulsion is made against him as the factors to be taken into account, particularly those concerning his conduct, are likely to change in the course of time.

19 These considerations lead a reply in the following terms to the second and third questions submitted by the high court of justice:

The directive leaves a margin of discretion to member states for defining the ' ' competent authority ' '. Any public authority independent of the administrative authority called upon to adopt one of the measures referred to by the directive, which is so constituted that the person concerned enjoys the right of representation and of defence before it, may be considered as such an authority.

A recommendation for deportation made under british legislation by a criminal court at the time of conviction may constitute an opinion under article 9 of the directive provided that the other conditions of article 9 are satisfied. The criminal court must take account in particular of the provisions of article 3 of the directive inasmuch as the mere existence of criminal convictions may not automatically constitute grounds for deportation measures.

The opinion of the competent authority must be sufficiently proximate in time to the decision ordering expulsion to ensure that there are no new factors to be taken into consideration, and both the administration and the person concerned should be in a position to take cognizance of the reasons which led the ' ' competent authority ' ' to give its opinion - save where grounds touching the security of the state referred to in article 6 of the directive make this undesirable.

A lapse of time amounting to several years between the recommendation for deportation and the decision by the administration is liable to deprive the recommendation of its function as an opinion within the meaning of article 9. It is indeed essential that the social danger resulting from a foreigner ' s presence should be assessed at the very time when the decision ordering expulsion is made against him as the factors to be taken into account, particularly those concerning his conduct, are likely to change in the course of time.

20 The costs incurred by the government of the united kingdom and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court,

In answer to the questions referred to it by the high court of justice, queen ' s bench division, divisional court, by an order of 30 july 1979, hereby rules:

1. Article 9 of council directive n°64-221-eec of 25 february 1964 imposes obligations on member states which may be relied upon by the persons concerned before national courts.

2. (a) The directive leaves a margin of discretion to member states in regard to the definition of the ' ' competent authority ' '. Any public authority independent of the administrative authority called upon to adopt one of the measures referred to by the directive, which is so constituted that the person concerned enjoys the right of representation and of defence before it, may be considered as such an authority.

(b) A recommendation for deportation made under british legislation by a criminal court at the time of conviction may constitute an opinion under article 9 of the directive provided that the other conditions of article 9 are satisfied. The criminal court must take account in particular of the provisions of article 3 of the directive inasmuch as the mere existence of criminal convictions may not automatically constitute grounds for deportation measures.

3. (a) The opinion of the competent authority must be sufficiently proximate in time to the decision ordering expulsion to ensure that there are no new factors to be taken into consideration, and both the administration and the person concerned should be in a position to take cognizance of the reasons which led the ' ' competent authority ' ' to give its opinion - save where grounds touching the security of the state referred to in article 6 of the directive make this undesirable.

(b) A lapse of time amounting to several years between the recommendation for deportation and the decision by the administration is liable to deprive the recommendation of its function as an opinion within the meaning of article 9. It is indeed essential that the social danger resulting from a foreigner ' s presence should be assessed at the very time when the decision ordering expulsion is made against him as the facts to be taken into account, particularly those concerning his conduct, are likely to change in the course of time.