C-131/79

In Case 131/79

R E F E R E N C E to the C o u r t under Article 177 of the E E C T r e a t y by the H i g h C o u r t of Justice, Queen's Bench Division, Divisional Court, for a pre- liminary ruling in the case pending before that court between

R E G I N A V S E C R E T A R Y O F S T A T E F O R H O M E A F F A I R S

REGINA

and

SECRETARY OF STATE FOR HOME AFFAIRS, EX PARTE MARIO SANTILLO

Facts and Issues

The facts of the case, the course of the I — Facts and written procedure procedure and the observations sub- mitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized 1. The third recital in the preamble to as follows: Council Directive No 64/221/EEC of 25

JUDGMENT OF 22. 5. 1980 — CASE 131/79

REGINA ν SECRETARY OF STATE FOR HOME AFFAIRS

3. Mr Santillo is an Italian national Division decided to stay the proceedings who has been working in the United and to ask the Court of Justice for a Kingdom since 1967. He is married to an preliminary ruling under Article 177 of Italian national and has two children the Treaty upon the following questions: born in the United Kingdom. On 13 December 1973 the Central Criminal Court convicted him of buggery and “1. Whether Article 9 (1) of Council rape committed on 18 December 1972 Directive No 64/221 of 25 February on a prostitute and of indecent assault 1964 confers on individuals rights and assault occasioning actual bodily which are enforceable by them in the harm on 14 April 1973 on another pros­ national courts of a Member State titute. On 21 January 1974 he was and which the national courts must sentenced to a total of eight years' protect. imprisonment for these four offences. When giving judgment the Central Criminal Court made a recommendation 2. (a) What is the meaning of the for deportation under the Immigration phrase ‘an opinion has been Act. obtained from a competent authority of the host country’ within Article 9 (1) of Council On 10 October 1974 the Court of Directive No 64/221 of 25 Appeal (Criminal Division) refused Mr February 1964 ('an opinion')?; Santillo leave to appeal against the prison and sentence and the recommendation for deportation. On 28 September 1978 the (b) in particular, can a recommen­ Secretary of State made a deportation dation for deportation made by order against him expelling him from the a criminal court on passing United Kingdom as soon as his sentence sentence (‘a recommendation’) was completed. Having completed his constitute ‘an opinion’? prison sentence on 3 April 1979 after remission of one third of the sentence for good behaviour, Mr Santillo was due to 3. If the answer to Question 2 (b) is be released but remained in detention Yes: under the Immigration Act.

The order making the reference was deportation by an English criminal court received at the Court Registry on 10 was a breach of the United Kingdom's August 1979. obligation under Article 9 (1). It is implicit in the judgment in that case that such a deportation recommendation In accordance with Article 20 of the constituted an "opinion" for the Protocol on the Statute of the Court of purposes of the article by the same token Justice of the EEC the United Kingdom that it was held to constitute a measure Government, represented by Simon within the meaning of Article 3 of the Brown, Barrister, and G. Dagtoglou of directive. If this argument cannot be the Treasury Solicitor's Department, regarded as clearly correct then Article 9 acting as Agent, Mr Santillo represented (1) cannot be regarded as constituting a by Louis Blom-Cooper, Q.C., and Alan clear and precise provision. Newman, Barrister, and the Commission of the European Communities repre- sented by Anthony McClellan, its Legal Secondly, Article 9 (1) is subject to Adviser, acting as Agent, assisted by conditions which are imprecise in their Stephen O'Malley, Barrister, sub- meaning and application. For instance, mitted written observations. under the United Kingdom procedure of judicial review, although an appeal in one sense is only concerned with the On hearing the report of the Judge- legal validity of the decision under Rapporteur and the views of the review such legal validity is reviewable Advocate General, the Court decided to on grounds which include consideration open the oral procedure without any of the existence of factual material to preparatory inquiry. support the decision. Similarly urgency is a relative concept.

— A "recommendation" is an ex­ pression of view as to whether or not As to (b) there are no circumstances in an administrative decision to deport which the lapse of time between the the person concerned should be making of a recommendation and the taken by the executive authority. taking of the decision ordering the deportation can preclude that rec­ ommendation from constituting an — As was decided in Bouchereau a opinion within the meaning of the "recommendation" constitutes a provision in question. The Government measure within the meaning of of the United Kingdom thinks that the Article 3 of the directive and broad object of Article 9 (1) is to ensure accordingly such expression of view that two separate organs of the State can only lawfully be based on consider each case, unless there is an grounds of public policy and/or appeal on the merits from the decision. public security and public health and The said article does not, according to in respect of the first two grounds the United Kingdom, even require that must be related to the personal the opinion must support the deportation conduct of the individual concerned. decision; how much less therefore can the article be construed so as to require the opinion to be based upon exactly the — The Criminal Court expressing such same material as founds the decision. a view is an impartial organ of the Only the most general criteria can and Member State separate from and should be laid down by the Court as to independent of the Secretary of State. the nature of changes of circumstance, the proper application of these criteria — Before the Criminal Court the person being a matter for the determination of concerned enjoys such rights of the national court. And only some defence and assistance or represen­ fundamental change of circumstance, tation as United Kingdom law (in introducing some entirely fresh material this instance the law of England and factor outside the reasonable con­ Wales) provides for. templation of the sentencing court such as nullifies the significance of the previous recommendation and requiring that the person concerned should be Third question permitted to plead afresh his case against deportation, could ever reasonably be As to (a), the United Kingdom submits relied upon to invalidate what had pre­ that the answer should be in the negative viously been recognized to be a lawful because: and effective opinion.

First question It is further argued on behalf of Santillo that the power of the court concerned is circumscribed. It determines the It is argued on behalf of Santillo that by individual's potential detriment in the providing that measures can be taken light of his previous criminal record and only after the administrative authorities the seriousness of the offence. The court have complied with due process, Article does not and cannot take into account 9 (1) of the directive is intended to other factors relevant to the personal restrict the discretionary power which circumstances of the person convicted. It national laws generally confer on the is not a fully "competent" authority authorities responsible for the entry and within the meaning of Article 9 (1), expulsion of Community nationals. Since because "competence" implies a juris- deportation can only follow a procedure dictional capacity to enquire into all complying with due process, the relevant factors. Recommendations for principle of legal certainty requires that deportation cannot therefore be truly the individual should be able to rely on considered as "opinions". this obligation of due process.

" 1 . The right of nationals of a Member State to enter the territory of Under Article 48 (3) of the Treaty, another Member State and reside deportation must be "justified" on there is a right conferred directly, on grounds of public policy; the any person falling within the scope administrative authority has to satisfy of Community law, by the Treaty — itself that the deportee, by his personal especially Articles 48, 52 and 59 — conduct, constitutes a "present threat to or, as the case may be, by the the requirements of public policy" (cf. provisions adopted for its Bottcherean judgment). It follows that an implementation . . . "opinion" which no longer bears upon the present circumstances is an irrel­ evance and ceases to be an "opinion". This is the case even where the reason 4. A decision ordering expulsion cannot for the delay is in fact that the deportee be executed, save in cases of urgency is serving a term of imprisonment which have been properly justified, brought about by his own criminal against a person protected by activity. In the present case, the depor­ Community law until the party tation decision was taken more than concerned has been able to exhaust four and a half years after the the remedies guaranteed by Articles recommendation for deportation; during 8 and 9 of Directive No 64/221." that interval Santillo's psychiatric disposition might have undergone profound changes so that he no longer presents any present or future threat to society. In this respect Santillo argues It is clear from this that Article 9 (1) of that he has never had an opportunity to the directive confers directly on present his comments on the new factors individuals rights which are enforceable upon which the Secretary of State based by them in the national courts of a his deportation decision. Member State and which the national courts must protect.

the personal conduct of the individual measure, that "recommendation" or justifies the decision on grounds of "opinion" must be in the form of a public policy or public security. precise and comprehensive statement indicating how the personal conduct of the individual involves a genuine, sufficiently serious and present threat to the requirements of public policy affecting one of the fundamental In the Bouchereau case quoted above the interests of society, thereby justifying the Court ruled that "measure" includes the decision. In any event where a competent action of a court which is required by authority is giving an opinion, which the law to recommend in certain cases does not constitute a measure, as a pre- the deportation of a national of another requisite to a measure, that opinion, by Member State, whenever such rec- virtue of Article 6 and 9 of the directive ommendation constitutes a necessary must also be precise and comprehensive. prerequisite for a decision to make a deportation order. In the opinion of the Commission the adoption of such a "measure" is subject to the procedural safeguards afforded by the directive to the individual concerned.

REGINA ν SECRETARY OF STATE FOR HOME AFFAIRS

authority, lapse of time between the Mr Santillo, represented by Louis Blom- recommendation and the decision is Cooper, Q.C., and Alan Newman, irrelevant with regard to that Barrister, the Government of the United qualification but that, if the lapse of time Kingdom, represented by Simon Brown, is unreasonable, it may invalidate the Barrister, and the Commission, "opinion". represented by Anthony McClellan, acting as Agent, and by Stephen O'Malley, Barrister, presented oral The Commission thinks that the answer argument at the sitting on 6 February to Question 3 (c) should be that the 1980. lapse of time involved in serving a sentence of imprisonment may similarly The Advocate General delivered his have the effect of invalidating the opinion at the sitting on 27 February "opinion". 1980.

Decision

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 No 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.

— 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 c o u r t . . .".

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.

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.

JUDGMENT OF 22. 5. 1980 — CASE 131/79

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 deport- ation 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.

(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'?"

1 1 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 deport­ ation 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.

1 2 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.

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 17 October 1977 (Case 30/77, Bouchereau, [1977] ECR 1999), a

REGINA ν SECRETARY OF STATE FOR HOME AFFAIRS

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.

Costs

20 The costs incurred by the Government of the United Kingdom and by the Commission of the European Communities, which have submitted obser- vations 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,

T H E 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 No 64/221/EEC of 25 February 1964 imposes obligations on Member States which may be relied upon by the persons concerned before national courts.

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.

O'Keeffe Touffait Mertens de Wilmars

Pescatore Mackenzie Stuart Bosco Koopmans

Delivered in open court in Luxembourg on 22 May 1980.

A. Van Houtte A. O'Keeffe Registrar President of the First Chamber, Acting as President