C-65/95

T H E Q U E E N v SECRETARY O F STATE FOR T H E H O M E DEPARTMENT, EX PARTE SHINGARA A N D RADIOM

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 26 November 1996

1. The High Court of Justice (Queen's acquired Irish nationality in 1982. In May Bench Division) has referred to the Court of 1983 he received indefinite leave to remain in Justice for a preliminary ruling five questions the United Kingdom, not because of his sta- on the interpretation of Council Directive tus as a Community national (which the 64/221/EEC of 25 February 1964 on the Home Office is not on record as being aware coordination of special measures concerning of at that time) but as a non-Community the movement and residence of foreign alien: his application for a residence permit nationals which are justified on grounds of had been based on the fact that he was mar- public policy, public security or public ried to a British citizen. health, ' (hereinafter 'the Directive').

2. The High Court considers that an answer to those questions is needed to enable it to give a decision on applications made by Mr Shingara and Mr Radiom for judicial review of the refusal by the United Kingdom authorities, on grounds of public security, to allow them entry to the United Kingdom.

4. Between 1983 and 1989 Mr Radiom worked in the Iranian consular service, first in Manchester and then in London. In 1989 the United Kingdom severed diplomatic Facts and procedure in the Radiom case (as relations with Iran and on 9 March 1989 the set out in the order for reference) Foreign Office 2 informed him that if he did not leave the United Kingdom within seven days he would be detained and deported. He left without waiting for that threat to be car- ried out. It appears that at that time he was told that he was to be deported on grounds of national security but no further details 3. Mr Radiom, an Iranian national who has were given. been married to a British citizen since 1981,

3 — The Home Office added the following comments concerning the Directive: 'In your letter you quoted a Directive 64/221/EEC, Article 9, which has regard to the appeal rights 7. The H o m e Office's negative reply, dated of European Community nationals (including Irish). ... I am advised that it is possible to exclude European Community 23 November 1992, repeated that 'should he nationals (including Irish). I am further advised that if the reasons for exclusion are such that the decision normally now attempt to enter the United Kingdom attracts ho right of appeal (i. e. national security, conducive to the public good) then, even though the person is a Euro- or be found to have done so, he will be pean Community national (including Irish), he/she has no refused leave to enter and/or removed as an right of appeal.'

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cive to the public good nor in the interests of Facts and procedure in the Shingara case (as national security. set out in the order for reference)

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be shown that his presence would be con- directions for your removal from the United trary to the interest of national security). Kingdom in due course and details will be given to you separately.'

In the circumstances we must request imme- diate arrangements for an appeal, failing 16. On 30 July 1993 leave was granted to which we shall be obliged to apply for judi- move for judicial review to challenge cial review.' Mr Shingara's detention. O n that day he was released from custody and returned to France.

13. The reply from the Home Office, dated 18 May 1993, confirmed that there was no right of appeal. 17. Before the High Court, Mr Shingara seeks to challenge the decision of 22 July 1993 to treat him as an illegal entrant and to detain him and remove him from the United Kingdom and exclude him from the United Kingdom. He seeks to quash that decision and asks for a declaration that he is entitled 14. Mr Shingara did not in fact lodge any to appeal against his exclusion or to have his appeal but on 15 July 1993 arrived at the case referred for consideration to an inde- Port of Dover with his wife and children and pendent authority pursuant to Article 9(2) of was granted entry on production of his the Directive. French identity card. He made no mention to the immigration officer of the earlier refusal of leave to enter or of the grounds for it.

18. The representative of the Secretary of State gave the High Court the following rea- sons for the 1991 decision: '... in the view of 15. O n 22 July 1993 Mr Shingara was the Secretary of State, the Applicant was an arrested in Birmingham as an illegal entrant. individual engaged in activities promoting The notice served on him on that date states: Sikh extremism in the United Kingdom and '... I am satisfied that you are an illegal terrorism elsewhere. The Applicant is the entrant as defined in section 33(1) of the leader of Babbar Khalsa (BK) in France, a Immigration Act 1971. ... I propose to give Sikh organization which supports terrorist

19. Before giving a decision on the applica- tions described above, the High Court con- siders it necessary to obtain from the Court of Justice a ruling resolving certain doubts concerning the interpretation and application 2. In the light of the answer to Question 1, of the Directive. The questions are as fol- where a Community national is refused lows: entry into the United Kingdom on grounds of national security does Article 8 of Directive 64/221 require that national to have a right of appeal to an immigration adjudicator if, on the cor- '1. (1) In Article 8 of Council Directive rect construction of the relevant provi- 64/221/EEC of 25 February 1964, do the sions of national law, a British national words "the same legal remedies ... as are refused entry to the United Kingdom on available to nationals of the State con- grounds of national security has a right cerned in respect of acts of the adminis- of appeal for the purpose of establishing tration" refer that he is a British national and is there- fore entitled to enter the United King- dom irrespective of whether his presence in the United Kingdom is undesirable for reasons of national security? (a) to specific remedies available in respect of decisions concerning entry by nationals of the State concerned (in casu, an appeal to an immigration adjudicator) or 3. Do the opening words of Article 9(1) of Directive 64/221 ("where there is no right of appeal to a court of law, or where such appeal may be only in (b) do they refer only to remedies avail- respect of the legal validity of the able in respect of acts of the admin- decision, or where the appeal cannot istration generally (in casu, an appli- have suspensory effect") apply equally to cation for judicial review)? Article 9(2)?

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of public policy, public security or public public health upon which the decision taken health. Accordingly, it affects, first and fore- in his case is based, unless this is contrary to most, the conditions governing the entry and the interests of the security of the State residence of such persons. involved.'

24. Article 7 of the Directive provides: 'The person concerned shall be officially notified 21. The Directive contains both substantive of any decision to refuse the issue or renewal and procedural rules. The former (Article of a residence permit or to expel him from 2(2) and Articles 3 and 4) limit the grounds the territory. The period allowed for leaving which the Member States may invoke as the territory shall be stated in this notifica- affecting 'public policy, public security or tion. Save in cases of urgency, this period public health'. None of the preliminary shall be not less than fifteen days if the per- questions seeks any interpretation of those son concerned has not yet been granted a concepts. 4 residence permit and not less than one month in all other cases.'

25. Article 8 of the Directive specifically 22. As regards requirements of a procedural refers to the conditions governing legal rem- nature, the Directive requires each Member edies in respect of earlier decisions: 'The per- State to grant the nationals of the other son concerned shall have the same legal rem- Member States the possibility of challenging edies in respect of any decision concerning administrative measures in this area. And it is entry, or refusing the issue or renewal of a precisely with that requirement that the pre- residence permit, or ordering expulsion from liminary questions are concerned. the territory, as are available to nationals of the State concerned in respect of acts of the administration.'

— Section 1(1) provides that all persons who are in the Act expressed to have the 2. Any decision refusing the issue of a first right of abode in the United Kingdom residence permit or ordering expulsion of the are to be free to live in, come and go into person concerned before the issue of the per- and from, the United Kingdom without mit shall, where that person so requests, be let or hindrance except such as may be referred for consideration to the authority required under and in accordance with whose prior opinion is required under para- the Act to enable their right to be estab- graph 1. The person concerned shall then be lished or as may be otherwise lawfully entitled to submit his defence in person, imposed on any person. except where this would be contrary to the interests of national security.'

— Section 2(1) provides that British citizens The domestic provisions governing the have the right of abode in the United entry of foreign nationals Kingdom.

27. According to its settled case-law, it is not for the Court of Justice to interpret national — Section 3(1) provides that, with certain law or to appraise the effects thereof in pro- exceptions, an alien may not enter the ceedings under Article 177 of the EC Treaty. United Kingdom except with leave.

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29. As regards challenging administrative decisions concerning leave to enter, the Immigration Act provides for appeals against exclusion from the United Kingdom in sec- tion 13: '... a person who is refused leave to 31. At the risk of stating the obvious, I must enter the United Kingdom under this Act point out that from the outset the Treaty may appeal to an adjudicator against the guaranteed freedom of movement for the decision that he requires leave or against the nationals of one Member State to enable refusal'. 6 them to go to another Member State in order to engage in economic activities, either as workers (Article 48), or as self-employed 5 — I shall use the terms 'deportation' or 'expulsion' interchange- ably to refer to decisions obliging a person, if necessary b y recourse to force, to leave the territory of a State. 6 — Decisions of the adjudicators may in turn be challenged 7 — Section 33 of the Immigration Act defines 'entry clearance' under certain conditions before the Immigration Appeal Tri- as a 'visa, entry certificate or other document which, in bunal (section 20 of the Immigration Act). Both the adjudi- accordance with the immigration rules, is to be taken as evi- cators and the members of the Appeal Tribunal arc dence or the requisite evidence of a person's eligibility, appointed by the Lord Chancellor, normally from among though not a British citizen, for entry into the United King- lawyers with certain professional experience. dom (but docs not include a work permit)'.

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9 — The problem is encountered in particular in the situation which arose after 31 December 1992, the final date for the implementation of Article 7a of the Treaty. O n 18 November 1993 the European Parliament brought an action (Case C-445/93) before the Court of Justice under Article 175 of 34. The creation of citizenship of the Union, the Treaty for a declaration that the Commission had with the corollary described above of free- infringed the Treaty by failing to put forward the necessary proposals to establish free movement of persons within the dom of movement for citizens throughout internal market in accordance with Article 7a of the Treaty. O n 12 July 1995 the Commission adopted a Proposal for a the territory of the Member States, repre- Directive on the elimination of controls on persons crossing- internal frontiers which treats such removal as a consequence of 'the clear and unconditional obligation enshrined in Article 7a' of the Treaty. The European Parliament, in response to that development, considered that its action had become devoid of purpose and so informed the Court of 8 — The case-law of the Court of Justice has also included within Justice which, by order of 11 July 1996, decided to bring the the scope of that freedom tourists, as recipients of services proceedings to an end. Also, the application of the Schengen (Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] Agreement by seven Member States as from 26 March 1995 ECR 377, and students (Case C-357/89 Raulin [1992] ECR is, as such, not a matter of Community law. 1-1027).

40. Recognition of that prerogative, which is 10 — Paragraph 17 of the judgment in Case C-370/90 Singh in turn limited by Community law, 13 is in [1992] ECR 1-4265 sutes (at 1-4294) "... the nationals of Member States have in particular the right, which they any event included in the rules governing derive directly from Articles 48 and 52 of the Treaty, to enter and reside in the territory of other Member States in each of the freedoms I have mentioned: in order to pursue an economic activity there as envisaged by those provisions (sec in particular the judgments in Case Article 48(3) of the Treaty, in relation to 48/75 Royer [1976] ECR 497, paragraph 31, and Case workers, u and in Article 56(1) of the Treaty C-363/89 Roux v Belgian State [1991] ECR 1-273, para- graph 9)'. 11 — Thus, by virtue of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restric- tions on movement and residence within the Community 12 — The United Kingdom legislation on immigration was for workers of Member States and their families (OJ, expressly amended to that effect: section 7 of the Immigra- English Special Edition 1968 (II), p. 485): tion Act 1988 removes the requirement of obtaining an ' 1 . Member States shall allow the persons referred to in entry permit for access to the United Kingdom for persons Article 1 to enter their territory simply on production of a entitled to do so under Community law. valid identity card or passport. 2. N o entry visa or equivalent document may be demanded 13 — It is expressly suted in Case 41/74 Van Duyn [1974] ECR save from members of the family who are not nationals of a 1337 that 'Directive 64/221 is intended to limit the discre- Member State ' tionary power which national laws generally confer on the Similar terms are used in Council Directive 73/148/EEC of authorities responsible for the entry and expulsion of for- 21 May 1973 on the abolition of restrictions on movement eign nationals'. and residence within the Community for nationals of Mem- 14 — 'It shall entail the right, subject to limiutions justified ber Sutes with regard to esubltshment and the provision of on grounds of public policy, public security and public services (OJ 1973 L 172, p. 14.) health ..."

43. To summarize, the Member States retain the power to deny, on the qualified grounds 45. The question asks whether the term 'the same legal remedies' 17 is to be taken to refer to the specific remedies available to nationals 15 — T h e provisions of this Chapter [on freedom of establish- ment] shall not prejudice the applicability of provisions ... concerning entry to, residence in and expul- providing for special treatment for foreign nationals on sion from the territory of their own State or, grounds of public policy, public security or public health.' 16 — In Case 36/75 Rutili [1975] ECR 1219 the Court sated: 'By on the contrary, to those remedies which are virtue of the reservation contained in Article 48(3), Member generally available in respect of acts of the States continue to be, in principle, free to determine the requirements of public policy in the light of their national needs ... Nevertheless, the concept of public policy must, in the Community context and where, in particular, it is used as a justification for derogating from the fundamental prin- ciples of equality of treatment and freedom of movement 17 — The generic term 'the same legal remedies' is used in the for workers, be interpreted strictly, so that its scope cannot English version to describe this type of challenge. A be determined unilaterally by each Member State without restricted procedure within that general category is that of being subject to control by the institutions of the Commu- 'appeals to a court of law' referred to in Article 9 of the nity.' Directive.

18 — The Court of Justice held in Sinįh, cited above, paragraph 22, that whilst it is true, as then contended by the United Kingdom Government, that a national of a Member Sute enters and resides in the territory of that State by virtue of rights attendant upon his nationality and n o t by virtue of those conferred by Community law, Article 3 of the Fourth 48. The same conclusion is reached if the Additional Protocol to the European H u m a n Rights Con­ rationale of the provision is considered: it vention provides that a State may not expel its nationals from its own territory. would not be very logical for Article 8 of the 19 — In the case of the legislation of the United Kingdom (which Directive to refer to specific remedies, avail­ has not ratified the Fourth Additional Protocol t o the European Human Rights Convention), this is recognized able to nationals, which nationals do not by the national court itself: '... a decision to exclude some­ one whose British citizenship gives him a right of abode in need to use: nationals of the Member States the United Kingdom would be a flagrant and gross denial do not need to challenge acts of the admin­ of the right of abode set out in section 1(1) of the A c e It is unthinkable that a Secretary of S u t e would ever act so per­ istration denying them entry to or directing versely as to make such a decision.'

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51. I do not share that view: although it of the Directive is superfluous since, with or seems to me to be inspired by a laudable aim, without it, no State can deny nationals of which I support, namely the extension of another State the possibility of challenging means of reviewing government decisions, I measures generally available to its own believe that it derives from incorrect reason- nationals because, by doing so, it would be ing. guilty of discrimination on grounds of nationality contrary to the Treaty.

56. For all those reasons, I consider that Article 8 of the Directive, by requiring each 53. In my view, such rights of recourse can- State to grant foreign nationals the same not be regarded as specific remedies intended remedies as those available to their own to render the decision at issue subject to nationals against acts of the administration, judicial scrutiny or examination of its valid- refers to the general procedures for challeng- ity at law in the strict sense. They are simply ing such acts. means of proving that the person concerned possesses British nationality. When that sta- tus is proved, any further action is unneces- sary, since such persons cannot be expelled from or denied entry to the United King- dom. 57. That, moreover, was the conclusion reached by the Court of Justice in its judg- ment of 18 October 1990 in Dzodzi,20 in which it analysed Article 8 of the Directive. The reasoning of the Court of Justice, which

54. A second argument put forward in sup- port of the applicants' case is that Article 8 20 — Joined Cases C-297/88 ind C-197/89 [1990] ECR 1-3763.

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in my opinion must continue to be followed, grant to persons protected under Commu- was as follows: nity law rights of appeal which are not less favourable than those available to nationals of the State concerned against acts of the administration (judgment in Pecastaing v Belgium, cited above, paragraph 11).

58. In the United Kingdom legal system, the general means of challenging or appealing against acts of the administration is judicial review. The requirement of Article 8 of the Directive is thus in principle satisfied by allowing the addressees of the government 59. It follows that if, in a Member State, the decisions concerned to have them scrutinized administrative courts are not empowered to by the competent judicial authorities by 'way grant a stay of execution of an administrative of judicial review. decision or interim protective measures with regard to the execution of such a decision, but such power is vested in the ordinary courts, that State is obliged to permit persons covered by the directive to apply to those courts on the same terms as nationals. It must nevertheless be emphasized that such 59. Throughout the written procedure, and rights depend essentially on the organization with greater intensity at the hearing, the par- of the courts and the division of the jurisdic- ties to the main proceedings have been in tion of judicial bodies in the various Member dispute as to which of the means of contest- States, since the only obligation imposed ing measures (namely, that provided for by upon the Member States by Article 8 is to the Immigration Act, on the one hand, and

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judicial review, on the other) allows more protection by the courts which cannot be comprehensive examination of government disregarded by the legal systems of the decisions concerning the entry and expulsion Member States whose decisions are under of foreigners. challenge.

61. However, Article 8 of the Directive does not exhaust all the requirements of Commu­ nity law as regards the procedural guarantees which must be available to the nationals of the Member States to protect and uphold their enforceable legal rights, where such rights derive from Community law. 64. In the same way, if judicial review of government decisions concerning the entry or expulsion of foreign nationals did not allow the courts to undertake complete and effective examination of such decisions, as a result of restrictions on judicial activity such 62. There is already well-established case- as to render nugatory their review of the law of the Court of Justice concerning the substance of such decisions, Community law effectiveness of the remedies available for would require such restrictions to be set defending rights deriving from the Commu­ aside and the applicants to be afforded nity legal order, 2 1 which requires a level of adequate judicial protection.

21 — This point will be considered in detail in point 72 et seq. of 22 — Case C-213/89 Factortame and Others [1990] ECR 1-2433, this Opinion. in particular p. Ī-2455.

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65. In other words, the interpretation of the Is the exclusion or limitation of judicial Directive cannot disregard the development remedies, as permitted by Article 9 of the of the case-law of the Court of Justice con- Directive, valid? cerning judicial protection of rights deriving from Community provisions. This means:

67. Article 9 of the Directive imposes the requirement of an opinion from an authority — other than that which adopts the final (a) that Article 8 of the Directive obliges the decision — in any of the following three Member States to afford Community cases: 'where there is no right of appeal to a nationals the same degree of legal protec- court of law, or where such appeal may be tion, at least, as that available to their only in respect of the legal validity of the own nationals in relation to decisions of decision, or where the appeal cannot have the administration — protection which, suspensory effect'. To what extent can those in the United Kingdom, is provided by cases be regarded as valid under Community judicial review; law today?

— Is it permissible, from the Community particular in Case 222/84 Johnston v Chief law standpoint, that suspension of the Constable of the Royal Ulster Constabulary operation of such measures, by way of [1986] ECR 1651, paragraph 18, and in Case protection inherent in the court proceed- 222/86 Unectefv Heylens [1987] ECR 4097, ings available for review thereof, is either paragraph 14, the requirement of judicial not provided for or is excluded? control of any decision of a national auth- ority reflects a general principle of Commu- nity law stemming from the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection 69. I shall attempt to give a separate answer of Human Rights and Fundamental Free- doms.' 24 to each of those three questions. And I shall say straight away that it seems to me that the first two questions must be answered in the negative.

(i) The exclusion of judicial remedies

23 — Case C-97/91 [1992] ECR 1-6313, paragraph 14. 25 — Point 15.

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73. That same approach was in fact con- but extends to all rights deriving from the firmed in the judgment in Factortame: 'In provisions of Community law. 28 accordance with the case-law of the Court, it is for the national courts, in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions of Community law ...'. 26

76. I do not think it is necessary to expand on the foregoing considerations, which can clearly be regarded as part of the acquis com- munautaire. In view of the clarity of the case-law cited, further comment is unneces- sary.

74. Specifically with regard to the right to freedom of movement for workers, the judg- ment in Heylens, cited earlier, after classify- ing it as a fundamental right conferred by the Treaty on all Community workers, held that 'the existence of a remedy of a judicial nature against any decision of a national authority refusing the benefit of that right is essential 77. The Directive, in contrast, allows the in order to secure for the individual effective minimum procedural safeguard to be 'low- protection for his right'. 27 ered', in that Article 9 tolerates the lack of an appeal to a court of law against expulsion orders adopted by national government authorities, subject only to the requirement of obtaining an opinion from another national authority which, moreover, is not binding.

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78. In my opinion, although that situation been fulfilled regarding, for example, the may have been acceptable in 1964, when the competence of the decision-making auth- judgments of the Court of Justice to which I ority, the proper conduct of the procedure have referred had not yet been delivered, it and similar matters. must now be rejected in the light of the case- law that has developed since that time.

79. The minimum permissible standard, according to that case-law, necessarily 82. Having earlier drawn attention to the implies that judicial review must be available case-law of the Court of Justice concerning for acts of the administration which the need for remedies to be available before adversely affect rights derived from Commu- the courts to defend rights deriving from nity law and, specifically, the right of any Community law, I must now focus on the citizen of any Member State to go to another 'effective' nature of such remedies, also pre- State. scribed by that case-law.

80. The first hypothesis of the three pro- vided for by Article 9 of the Directive is thus seen to be contrary to a general principle of Community lav/. 83. The requirement of effectiveness com- prises two aspects: there must be no restric- tions on the court's examination of the case and it must be in a position to ensure suffi- cient protection at the appropriate time. I (ii) Restrictions on legal remedies in the shall return to the latter point when dealing courts with the question of interim measures.

88. Thus, there can only be 'effective protec- tion' to the extent to which the legal remedy — The mere existence of previous criminal allows full review of the administrative act at convictions (Article 3(2) of the Directive) issue. is not sufficient to justify an expulsion order, unless the person concerned has acted in such a way as to represent an immediate threat to public policy. 30 31 — J o i n e d Cases 115/81 and 116/81 Adotti and ComuailU [1982] ECR 1665. 32 — This docs not mean that, in appraising concepts of such an indeterminate nature as 'public security' and 'public policy', the government authoriucs arc not allowed some discretion, which will be examined by the courts only on the basis of 29 — Case 67/74 Bomignore [1975] ECR 297. the approach normally adopted by them for review of the 30 — Case 30/77 Bouchereau [1977] ECR 1999. administration's exercise of discretionary powers.

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89. I therefore consider that the second effect. In contrast, in the other language ver- hypothesis envisaged by Article 9 of the sions the appeal may, but need not necess- Directive is likewise not in conformity with arily, have such effect: Article 9 of the the right to protection by the courts, as a Directive comes into play only where the principle of Community law. procedural rules for appeals do not require an appeal in itself to have suspensory effect, but at the same time do not exclude the pos- sibility that the court might direct suspen- sion of the contested measure.

91. In the first place, there is a terminologi- cal problem: the English version states 94. To cite once more the judgment in Fac- 'where the appeal cannot have suspensory tortame and Others34 (paragraph 21): 'the effect'. That expression differs in an essential full effectiveness of Community law would respect from the French version ('s'ils n'ont be just as much impaired if a rule of national pas d'effet suspensif'), the Spanish version law could prevent a court seised of a dispute ('cuando el recurso no tenga efectos suspen- sivos'), the Italian version ('si essi non hanno effetto sospensivo') and the German version ('oder keine aufschiebende Wirkung haben'). 33 — The sanic problem has arisen on several occasions in the constitutional case-law of a number of Member States. In a judgment of 7 July 1987 (No 115/1987), the Spanish Con- stitutional Court field to be unconstitutional Article 34 of the Ley Orgànica (Basic Law) of 1 July 1985 on the rights and freedoms of aliens in Spain, which provided 'in no case may suspension be granted of administrative resolutions adopted in accordance with this Law'. In its decision of 5 September 1986, the French Constitutional Council, exam- ining the Law of 9 September 1986 in relation to the imple- mentation of government decisions on the expulsion of aliens, stated that such decisions are permissible and do not 92. The difference lies in the fact that, in the conflict with Article 66 of the Constitution, since they may give rise to an appeal to the administrative court, accompa- English version, the third hypothesis implies nied by an application for suspension of operation. that the appeal 'cannot' have suspensory 34 — Cited in footnote 22.

98. On the same point, in Dzodzi, cited above, a Belgian court asked the Court of 96. O n the basis of that rule, which is now Justice whether Article 9 of the Directive well established, and observing the general was to be interpreted as meaning 'that the criterion that secondary legislation should as persons concerned must be entitled to bring far as possible be interpreted in the manner an action which would enable them to apply as a matter of urgency for the intervention of a national court or tribunal, prior to the enforcement of the measure complained of, 35 — Joined Cases C-143/8S and C-92/89 [1991] ECR 1-415. in order to obtain in good time measures 36 — Cisc C-465/93 [1995] ECR 1-3761. 37 — The importance of that judgment has been highlighted by protecting the rights under threat'. Eduardo García de Enterria in his article 'Sobre la posibil- idad de que las jurisdicciones nacionales adopten medidas cautelares positivas (y no sólo suspensiones) contra los actos de sus administraciones respectivas dictados en ejecu- ción de reglamentos comunitarios cuya validez se cuestiona (sentencia Atlanta del Tribunal de Justicia, 9 de noviembre de 1995)', Revista Española de Derecho Administrativo N o 88 (1995), pp. 565 to 579. In general, regarding the case-law of the Court of Justice concerning protection by way of interim measures, sec, by the same author, La batalla por las medidas cautelares. Derecho Comunitario Europeo y pro- ceso contencioso-administrativo español, second edition, 99. In the judgment in that case, the Court Madrid, 1995. held, in reply to the question submitted in

100. The features of the system described by the Belgian court involved the following: (a) the need for an appeal to be available prior to enforcement of the decisions refusing a 103. To summarize, the third hypothesis residence permit or making an expulsion provided for in Article 9(1) of the Directive order; (b) conferral of exclusive jurisdiction will only be valid in my opinion in so far as to hear such appeals on a judicial body able it relates to an internal procedure which, to give a decision under an emergency pro- whilst providing for the possibility of sus- cedure and empowered to adopt interim pensory effect for an appeal to a court, does measures regarding rights of residence. not automatically require it. A national regu- lation which — that being the impression given by the English version of the provision — absolutely withheld any suspensory effect for such appeals would not be compatible with Community law. 101. The Court of Justice answered that pre- liminary question in the negative but at that time did not rule —- since it was unnecessary to do so — as to the possibility of prohibit- ing interim measures in the course of appeal proceedings against government decisions covered by the Directive. That possibility had, in my view, already been excluded by its earlier case-law. The third preliminary question

102. In any event, the judgments cited above confirm that in all cases not only must aliens have the possibility of going to court to chal- lenge decisions concerning their entry to and expulsion from a Member State, but also, in 104. By this question, the national court the course of the appeal proceedings in asks whether the negative conditions laid down in the first part of Article 9(1) of the Directive, to which I have just referred, are 38 — Paragraph 67. also applicable to Article 9(2).

39 — It must be borne in mind that, according to the judgment in Case C-175/94 GalUgher [1995] ECR 1-4253), 'Article 9(1) 111. The initial conditions for applicability covers the case of a national already lawfully residing are thus the same for both paragraphs of within the territory of another Member State. That includes a person holding a residence permit, but also a national of another Member State who, according to the legislation of the host State, is not required to hold a residence permit. Article 9(1) therefore also applies to a decision not to expel such a national from the territory of a Member Sute.' 40 — Cited in the preceding footnote, paragraph 20.

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Article 9 of the Directive, as all the parties to to the application of Articles 8 and 9 41 of the the proceedings recognize. Directive to expulsion orders already put into effect and were not limited to Article 9(2) of the Directive.

The fourth preliminary question: the scope 114. In my opinion, the starting point for of decisions to expel Community nationals the ruling to be given by the Court of Justice should be the doctrine which it has been and is laying down concerning measures expel- ling Community nationals (Adoui and Cor- nuaille, cited above), and then the applica- tion of Articles 8 and 9 of the Directive to the cases referred to by the national court should be analysed.

112. By its fourth question, the national court asks, essentially, whether a Commu- nity national expelled on grounds of public security from the territory of a Member State, who, having left the territory, seeks to re-enter it, is entitled to obtain the opinion provided for in Article 9(2) of the Directive, 115. Let me first say that the expulsion of despite the fact that he did not previously Community nationals by the host State, on appeal against the expulsion decision and no grounds of public security, continues to be a opinion was obtained in respect of it. permissible measure, from the Community point of view, in the legislative situation pre- vailing after the Single Act, which established the principle that internal frontiers were to be abolished.

116. Whatever its scope, that principle, now ordering his expulsion from the territory of a embodied in Article 7a of the Treaty, and Member State to be re-admitted to the terri- likewise the freedom of movement associated tory of the State in question and apply there with citizenship of the Union, recognized by for a fresh residence permit, it must be Article 8a of the EC Treaty as amended by stressed that any national of a Member State the Treaty on European Union, do not pre- who wishes to seek employment in another vent the Member States from exercising their Member State may re-apply for a residence sovereign prerogative by virtue of which, on permit. Such an application, when submitted limited grounds, they may restrict the free- after a reasonable period has elapsed, must dom of movement of non-nationals within be examined by the competent administra- the Community, even going so far as to expel tive authority in the host State, which must them from national territory. take into account, in particular, the argu- ments put forward by the person concerned purporting to establish that there has been a material change in the circumstances which justified the first decision ordering his expul- 117. Such limitations on freedom of move- sion.' ment for non-nationals display a parallelism with the penalties of banishment which, in those countries where the law provides for them, also restrict the freedom of movement of nationals within their own State. 119. Whether the expulsion decision was, in due time, appealed against and confirmed, or whether it was not the subject of an appeal and, consequently, became final on expiry of 118. However, the legitimacy of expulsion the periods prescribed by law for an objec- measures does not extend to the absolute tion to be lodged, 43 I consider that the solu- suppression of freedom of movement within tion arrived at in Adotti and Cornuaille is the Community from the temporal stand- fully applicable, and from it two relevant point. In Adotti and Comuaille, the Court of consequences follow: Justice, answering a question on the duration of the effects of measures expelling aliens, 42 laid down the following rule:

122. As is logical, the use of those appeal procedures must not be abusive or vexatious, resulting in the exhaustion of one remedy being followed almost immediately by another on the basis of the same facts: 120. The first consequence is consistent with between recourse to one type of remedy and the very rationale of the expulsion measure another a reasonable period may be required, and its legitimacy has been endorsed by the as held in Adoui and Comuaille. judgment in Adoui and Comuaille, accord- ing to which 'where such a decision has been validly adopted in his case in accordance with Community law and continues to be legally effective so as to exclude him from the territory of the State in question, Com- munity law contains no provision conferring 123. The foregoing considerations provide upon him a right of entry into that territory the basis for an answer which, although during the examination of his further appli- going beyond the precise scope of the fourth cation'. 44 A fortiori, entry will continue to preliminary question, may supply the be prohibited if, after such an examination, national court with additional help in arriv- the reply to the new application is still nega- ing at its decision. tive.

The fifth preliminary question

128. Whilst that situation persists, the Mem- ber State in question may endeavour to pre- vent the expelled person from entering its 125. By its last preliminary question the territory. It may also take steps to curtail the national court asks whether the answer given presence in its territory of any person who, to the fourth question changes in any respect in breach of the prohibition of entry inher- where the circumstances of the Community ent in the expulsion order, has gained access national expelled on grounds of public to its territory. Finally, it may order the policy or public security fall within any of expulsion of that person, and in so doing is the following three cases: (a) he entered the merely giving direct effect to the original territory of the Member State before asking expulsion order. for a residence permit; (b) he has been expelled from the Member State before ask- ing for a residence permit or has never asked for such a permit; (c) his earlier departure from the territory was the result of a decision ordering expulsion or the threat of detention and expulsion and was followed by a decision to exclude.

129. If, as was recognized in Adoui and Cor- nuaille, a national who is the subject of a valid expulsion order has no right to enter the territory of the Member State in question 126. Since that question complements the ^whilst his application is being re-examined, fourth one, which, in turn, assumes the exist- then a fortiori he cannot enjoy that right — ence of a previous expulsion order issued by which would now be a right not of entry but the competent authorities, the answer I sug- of residence — when he has entered the gest for the fourth question will not change country in disregard of the expulsion order in any of the three cases described above. made against him.

(2) Community nationals who have had an expulsion order made against them or have been refused entry to a Member State, on grounds of public health, pub- lic security or public policy, are entitled to challenge such measures before a judicial authority in that Member State by means of an effective remedy which ensures that the entire administrative decision, including its substantive grounds, is subjected to judicial scrutiny.

(3) The opening words of Article 9(1) of Directive 64/221 ('where there is no right of appeal to a court of law, or where such appeal may only be in respect of the legal validity of the decision, or where the appeal cannot have suspen- sory effect') also apply to Article 9(2). The first two cases covered by those opening words must be regarded as contrary to the general principle of

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Community law which guarantees individuals full and effective judicial pro- tection of rights deriving from provisions of Community law which have direct effect.

(4) A Community national who has been refused entry to or expelled from a Member State on grounds of public health, public security or public policy may challenge such decisions by means of the remedies provided for in Article 8 of Directive 64/221. Both where he failed to avail himself of such remedies and where recourse to them was unsuccessful, he may also, after a reasonable period has elapsed, ask the administrative authorities to reconsider his case. In the event of a negative decision from those authorities in response to that request, he may rely on the provisions of Articles 8 and 9 of the said directive, provided that he does not exercise those rights abusively or vexatiously.