C-175/94

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE GALLAGHER

OPINION OF ADVOCATE GENERAL ELMER delivered on 12 October 1995 '

1. The Court of Appeal, in a case concerning them in respect of the decisions of the exclusion under the Prevention of Terrorism administration in such matters. (Temporary Provisions) Act 1989 (hereinaf- ter 'the Act'), has submitted to the Court for a preliminary ruling a number of questions on the interpretation of Article 9 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of According to Article 2, the directive relates foreign nationals which are justified on to all measures concerning entry into their grounds of public policy, public security or territory, issue or renewal of residence per- public health (hereinafter 'the directive'). ' mits, or expulsion from their territory, taken by Member States on grounds of public pol- icy, public security or public health.

The relevant provisions of Community law

'Article 9 The national legislation

1. 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 3. Section 7(l)(a) of the Act provides as fol- decision, or where the appeal cannot have lows: 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 'If the Secretary of State is satisfied that any enjoys such rights of defence and of assis- person — tance or representation as the domestic law of that country provides for.

(a) is or has been concerned in the commis- sion, preparation or instigation of acts of This authority shall not be the same as that terrorism to which this Part of this Act empowered to take the decision refusing applies ... renewal of the residence permit or ordering expulsion.

2. Any decision refusing the issue of a first the Secretary of State may make an exclusion residence permit or ordering expulsion of the order against him.'

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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE GALLAGHER

(2) Subject to subparagraphs (3) and (4) (5) If a person exercises those rights within below, a person against whom an exclu- the period within which they are sion order has been made must exercise required to be exercised by him, the the rights conferred by subparagraph (1) matter shall be referred for the advice of above within seven days of the service one or more persons nominated by the of the notice. Secretary of State.

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OPINION OF MR ELMER — CASE C-175/94

(6) Where subparagraph (2) above applies, (2) In reconsidering a matter under this the person against whom the exclusion paragraph the Secretary of State shall order has been made shall be granted a take into account everything which personal interview with the person or appears to him to be relevant and in persons so nominated. particular —

(7) Where subparagraph (3) or (4) above (a) the representations relating to the applies, the person against whom the matter made to him under para- exclusion order has been made shall be graph 3 above; granted a personal interview with the person or persons so nominated if it appears to the Secretary of State that it is reasonably practicable to grant him such an interview in an appropriate country or territory within a reasonable period from the date on which he made his representations.' (b) the advice of the person or persons to whom the matter was referred by him under that paragraph; and

Paragraph 4 of Schedule 2 to the Act is worded as follows: (c) the report of any interview relating to the matter granted under that paragraph.

The facts of the case under subparagraph (3), in conjunction with subparagraph (1), of paragraph 3 of Schedule 2 to the Act. An interview was held on 6 December 1991 in the British Embassy in Dublin between Mr Gallagher and an adviser nominated by the Secretary of State. Mr Gal- lagher's solicitor, his wife and their child 4. John Gerald Gallagher is an Irish citizen. were also present during the interview, Between May 1987 and September 1989 he which lasted approximately one hour. The travelled on several occasions to England in adviser in question did not reveal his name order to look for work. He returned to and did not give any particulars of the England in April 1990. On this occasion he grounds on which the Secretary of State had was successful in finding work in London, relied in making the exclusion order. The and set up house with his girlfriend in Secretary of State reconsidered the case pur- Eltham. suant to paragraph 4 of Schedule 2 to the Act but refused to alter his decision.

5. On 24 September 1991, Mr Gallagher was The order for reference arrested by the police and detained at Pad- dington Green police station under the pro- visions of the Act. On 27 September 1991, the Secretary of State decided, pursuant to section 7 of the Act, to make an order excluding Mr Gallagher from the United Kingdom on the ground that he was satisfied that Mr Gallagher 'is or has been concerned in the commission, preparation or instigation 7. Mr Gallagher thereupon brought the mat- of acts of terrorism connected with the ter before the courts. By order of 10 Febru- affairs of Northern Ireland'. It appears from ary 1994, the Court of Appeal referred the the documents in the case that the notifica- following questions to the Court for a pre- tion given to Mr Gallagher did not specify liminary ruling: the particular grounds on which the decision to exclude him had been taken.

(b) if such representations are made, the Secretary of State is obliged to con- sider the opinion of that competent authority and is obliged to recon- 9. It does, however, appear to follow from sider the merits of making an exclu- the order for reference that the questions sion order prior to the removal of relate to Article 9(1). Thus, it is stated, inter the individual from the United alia, that 'as a matter of chronology the [Sec- Kingdom (unless the individual oth- retary of State] was undoubtedly in breach erwise consents to removal from the of [Article 9(1)]', 2just as there is also refer- United Kingdom)? ence to protection of workers 'where there is no ... right of appeal to a court of law', 3an expression which occurs only in Article 9(1). Consistent with this, the United Kingdom and Mr Gallagher have set out their views solely on the interpretation of Article 9(1) of the directive. The Commission has stated its opinion that Article 9(1) must be applied in so far as Article 9(2) is applicable only in 2. Does the fact that a person is appointed those cases where lawful residence depends by the Secretary of State for the Home on a residence permit. Department prevent that person from being a competent authority for the purpose of Article 9 of Directive 2 — Page 13 of the order for reference. 64/221 of 25 February 1964?' 3 — Page 14 of the order for reference.

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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE GALLAGHER

13. In its first question, the Court of Appeal 11. Against this, however, it should be seeks essentially to determine whether the stressed that the distinction between the pro- opinion which must, under Article 9(1) of cedural rules in Article 9(1) and those in the directive, be obtained if there is no right Article 9(2) must be regarded as expressing a of appeal to a court of law against a decision fundamental principle of the law governing to expel a person, or where such appeal may aliens, namely that the longer the residence be only in respect of the legal validity of the has lasted, the greater must be the protection decision, or where the appeal cannot have against interference with the right of resi- suspensory effect, has to be obtained before dence. Nor should the foreign nationals in the decision to expel that person is taken, or question be placed at a disadvantage on the whether it is sufficient that it is not obtained ground that the United Kingdom, by allow- until after that date, when the authority ing them to reside without a residence per- which has taken the decision is required, fol- mit, has precluded itself from determining at lowing the making of representations, to an early date whether their residence in the reconsider the decision and, if appropriate, country is compatible with public policy, may alter it. public security and public health. The authorities dealing with foreign nationals can in any case secure the information they require regarding foreign nationals' residence otherwise than by processing an application for a residence permit. Furthermore, the 14. The United Kingdom argues that it is practical implementation of the right of per- sufficient that the person in question should sons to move freely may not lead to an be able to exercise the rights set out in Arti-

cle 9(1) at the time of reconsideration of the 17. The rule in Article 9(1) of the directive case by the Secretary of State pursuant to on obtaining an opinion from a competent paragraph 4 of Schedule 2 to the Act. It is authority must provide a minimum proce- only at the time of reconsideration that a dural guarantee in cases where no such right final decision to expel the person is taken. of appeal exists. This minimum guarantee lies in the fact that a second, independent auth- ority, before which the person concerned has the opportunity to set out his defence and to have assistance or representation, must deliver an opinion before a decision is taken to expel that person. I am overlooking in this 15. Mr Gallagher and the Commission, in connection, and in what follows, the proviso contrast, contend that the directive is to be regarding cases of urgency, which has not understood as meaning that such an opinion been pleaded in the present instance and must be obtained before the decision order- which in any event cannot justify a general ing expulsion is taken and that it is not suf- departure from the above rule. ficient for it to be produced only at the time when the authority in question is reconsider- ing a decision which has already been taken. The Commission points out in this connec- tion that the purpose of Article 9(1) is to ensure that a second, independent authority will assess the circumstances of the particular case so that the administrative authority can take this assessment into account when addressing the issue of whether a decision 18. To my mind, the United Kingdom's ordering expulsion should be taken. This view that this opinion need be obtained only procedural guarantee can be effective only if if the foreign national in question makes rep- the opinion is obtained from the competent resentations amounts to a dilution of this authority before the administrative authority minimum procedural guarantee without any takes its decision. basis in the text of the directive. According to the wording of the directive, this mini- mum guarantee must also apply even in cases where the foreign national in question does not make representations. In such cases too there is a decision ordering expulsion within the meaning of the directive (see, for exam- 16. In cases where a decision to expel a per- ple, Article 7, which implies that such a son is subject to a right of appeal to a court decision can, after expiry of the period for of law (the English translation of the phrase leaving the country, form the basis for 'recours juridictionnels' in the French ver- removal). In addition, it may be expected sion) which does not relate only to the legal that the opinion of the competent authority validity of the decision and which has sus- will have a much greater prospect of influ- pensory effect, the foreign national in ques- encing the decision of the administrative tion is guaranteed an opportunity to have the authority as to whether expulsion should legality and reasonableness of the decision take place if the administrative authority can subjected to an independent and disinter- take a fresh look at the case and has not ested examination. already reached a conclusion.

In its judgment of 22 May 1980 in Scintillo, 5 'In the case of a refusal to renew a residence the Court ruled that the object of the provi- permit or an expulsion from the territory of sions of Article 9: persons who have already obtained such a permit the decision cannot be taken until the matter has been submitted for consideration as mentioned above or until the [competent] authority has issued its opinion, save in cases 'is to ensure a minimum procedural safe- of urgency' guard for persons affected by one of the

4 — Case 98/79 Pecastamg v Belgium [1980] ECR 691, at pages 5 — Case 131/79 Regma v Secretary of State for Home Affairs, ex 722 and 723 to 72-1. parte Saimllo [1980] ECR 1585.

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OPINION OF MR ELMER — CASE C-I75/94

21. In the light of the foregoing, I propose that the Court's answer to the first question should be that Article 9(1) of the directive 'the requirement contained in Article 9(1) must be understood as meaning that the that any decision ordering expulsion must be opinion of a competent authority, which preceded by the opinion of a "competent must be obtained if there is no right of authority" ...' (paragraph 14, emphasis add­ appeal to a court of law against a decision ed). ordering expulsion, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, must, save in cases of urgency, be obtained before the administra­ tive authority takes any decision whatsoever Finally, the Court has most recently ruled in to expel a person on grounds of public pol­ its judgment of 18 October 1990 in Dzodzi6 icy, public security or public health. regarding the opinion of the 'competent authority' that:

The second question

'the object of Article 9(1) of Directive 64/221 is to ensure a minimum procedural safeguard for persons affected by a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a res­ 22. In its second question, the national court seeks essentially to determine whether Arti­ cle 9 of the directive is to be understood as meaning that a person appointed by the same 6 — Joined Cases C-297/88 and C-197/89 Dzodzi ν Belgium [1990] ECR 1-3763. authority as that which takes the decision

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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE GALLAGHER

24. Against this, the United Kingdom argues that Article 9 of the directive imposes requirements only with regard to how the With regard to the criteria governing the competent authority is to perform its duties competent authority, the Court further ruled and does not contain any rules governing the in its judgment in Dzodzi, also cited above, appointment of that authority. The fact that that: a person is nominated by the same adminis- trative authority as that which, inter alia, takes the decision ordering expulsion cannot preclude that person from being a 'compe- tent authority'. 'the directive does not specify how the com- petent authority referred to in Article 9 is appointed. It does not require that authority to be a court or to be composed of members of the judiciary. Nor does it require the members of the competent authority to be 25. The Commission similarly takes the appointed for a specific period. The essential view that it is not per se contrary to Article requirement is, first, that it should be clearly 9 that the competent authority is appointed established that the authority is to perform by the same administrative authority as that its duties in absolute independence and is not which, inter alia, takes the decision ordering to be directly or indirectly subject, in the expulsion. This appointee must, however, be exercise of its duties, to any control by the absolutely independent of the appointing authority empowered to take the measures authority and the national court must be in provided for in the directive ... and, secondly, possession of adequate information to estab- that the authority should follow a procedure lish that this is the case. enabling the person concerned, on the terms

31. I also share the Commission's view that, in order to enable the national court to determine whether the competent authority is absolutely independent, it is necessary that 29. On the other hand, it should be evident the national court be provided with all rele- that a person who is simply employed in a vant information regarding the identity and position subordinate to the administrative other functions of the person or persons authority in question, for instance as a civil appointed. Given the context in which this servant in the relevant government depart- case has come before the Court, it is neither ment, cannot be regarded as satisfying the necessary nor possible for the Court to con- requirement of being able, beyond any sider in greater detail how this should be doubt, to perform his duties as the 'compe- done.

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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE GALLAGHER

32. The answer to the second question the competent authority in question is in a should therefore be that Article 9(1) of the position to perform its duties in absolute directive is to be interpreted as not preclud- independence of the administrative authority. ing the competent authority from being It is for the national court to determine in appointed by the same administrative auth- each individual case whether that require- ority as that which, inter alia, takes a ment has been satisfied. decision ordering expulsion, provided that

Conclusion

33. I accordingly propose that the Court's answers to the questions submitted should be that Article 9(1) of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and resi- dence of foreign nationals which are justified on grounds of public policy, public security or public health is to be interpreted as meaning that: